Untitled Texas Attorney General Opinion ( 1944 )

Mr. T. M. Trimble,First Assistant
State Superintendent
State Departmentof Education
Dear Mr. Trimblsr opinfonno. O-6006
Be: Dispositionand handlingof
electionreturns - Independent
sohooldistrict
This offioeis in receiptof youp letter of April 26, 1944,
togetherwith the rttaohedinquiryby H. PT.Stillwell,Superintendent,
Tsxarkana,Texas,Public Schools. The fo-Ilowing
is our opinionas to
the answersto the variousquestionssubmittedto you by W. Stillwell.
Ris firat inquiryis0
"Pleasegive me directionsabout how to disposeof electionreturns,b&h
for those of the ourrentyear as well as those for previousyears."
Itas our opinionthat the electionreturm, both those fir the
currentyear aa well as thosefor previousyeam, may be disposedof w
burningor in any other manner;provided,that they must be retainedand
may not ba disposedof for at least one year after the date of the election.
Artiole 3026,Bmnon's Revised Civil Statutes,provides8
"When the ball.otshave all been counted.the managsreof the lectionin
person shall make out triplicatereturnsof the same, certifiedto be
correct,and sigmsdby them offioially,showing:Pirst,the total nun&m
of votes polled rt such box3 second,the numberpolledfor each sandidatel
one of which ratuws,togetherwith the poll lists and tally lists, shalX
be sealedup in an envelopeand deliveredby one of the precinotjudgesto
the oountyjudge of the countysanotherof said returns, togetherwith
poll lists and tally Ilsts,sblP be deliveredby one of the managersof
eleotionato the oo~unty clerk of the oouaty to be kept by him in his
offioeopen to inspectionby the pub110for twelprmoathr frcmthe day of
the electionsand the other of said returns,pcll and tally lists shill
Lu kept bu the presidingofficer oftha eleotioOfor twelvemonths from
the day of the eleotio& 21 oace of vaoanoyin the office of county judge,
or tho absenos,failureor inabilityof that officerto act, the eleatiorr
retums shall k, deliver& to the countyclerk oftho countywho shall
srfelykeep the same ln hi8 offioe,and he, or'the ooullty judge, shall
deliver the smm to tha cmmisuiomrr' court'onthe dq appointedby law
to open and comparethe polls~ Acts 1’383, pe 50; Aots lrt C. L. 1905.
p. 541, 80~. 91; G,L. vol. 9, po 357."
Hon. T. M. Trimble,pge 2 (o-6006)
We find no provisionin the statutesor in the case* requiring
that the r&urn6 thaelvos be preservedsave thore in the above quoted
statute.
Lest dispositionof returnsbe confisedwith dispoeitionof
"ballots,"we ar@ enclosingherewitha oopy of our OpinionHo. O-4038
tiioh treataof that subjeot.
His secondquestionin:
"Forthe currantyear to whom shouldthe returns, made by the election
officers,go7 And in partioular,do any of thslago to any CountyOfficer?"
Mr. Stillare does not state the partioubr *pa of electionto
which this questionrelates. We are presumingthat he refersto the elec-
tions of trusteesfor the TsxarkanaIndependentSchool Districtand we
answerhis questionaccordingly.
It is our opinionthat three copies of these returns shouldbe
made: that one mpy of suoh returnsshouldbe retainedby the presiding
officerof the election;that the other returnsshouldbe made to the
sahool board and not to any countyoffioialtthat manual deliveryto the
sbhoolboard shouldbe effeotedby deliveringone oopy of the returnsto
the presidentof the sohoolboard and the other to the secretaryof the
school board.
Article 3026, V.R.C.S.,quotedabove, providesfor the making of
triplicatereturna,that one return shall be retainedby the presiding
officerof the electionand the other two deliveredto the oounty judge
and county clerk respectively.
The TexarkanaIndppendentSchool M&riot is createdby Chapter
31 of the Local and SpeoialLaws of the 36th Legislatureat its Third
CalledSession,as amendedby the SpeoialLaws of the 39th Legislature
at its First CalledSessionin 1926, Chapter49, page 152. Section3 of
said Chapter31 wae amendedby Section2 of Chapter49 of the Special
Laws of the 39th Legislatureat its First CalledSeasionto read, in part,
as foll0Wsr
"All such ale&ions shall be held in aocordanaewith the State Laws gov-
erningelections,except that said board shall fix one or more voting
plaoesin each ward of the City of Texarkana,Texas, and eaid Board shall
appointa presidingofficerto hold said eleotionat eaoh voting place,
and suoh presidingofficershall selectat least one judge and two clerks
for the raspactivevoting plaoes,and said presidingofficer,judgesand
clerks,shall sot as managersof said election,and shall take the oath
prescribedby law as in generalelections,and make returnsof said eloc-
tion to said board, as requiredby law at generalale&ion, and 8t the
Hon. T. M. Trimble,page 3 (o-6006)
first regularor oalled sessionthereafterthe said schoolboard shall
canvasssuch returns,declare the resultathereofand issue csrtifiaates
of electiontotha personashGmr8by said returnsto have been elected.?
(Emphasissupplied).
There is nothingin the speciallaw precludingthe retsnticnof
one copy of the return by the presidingofficerof the election,and we
believethat he shouldretain one oopy.
However',
unlikethe rule in generalelections,the speoiallaw
for manual deliverof the returnfs to any
doss not specificallyprcrvide
particularperson or persrms. It providesthat the returnsshall be made
"to the board."
Our courtshave repeatedlyheld that boardshave no legal exist-
enoe as exh, c-r -+ when their numbersmeet togetheras I board. (Texas
Jurisprudence,Volume4 page 457; Webster,et al. Vs. Texas h Pacifio
Motor TransportCompany,et al., 166 S.W. (2d) 75).
Therefore,it is our opinionthat the deliveryis not compPetely
and legallyeffecteduntilthe returnsare plaoed before the board meeting
as such. However,speedymanual deliveryof the election returna to the
personsauthorizedto aocept them presentsa problemthat must be me% in
a practicalmanner. It would ba impraotioaland unreasonableto contend
that it would be necessaryfor the schoolboard to convenein a body in
order to receiveand retainthe Peturns. The pr=osident and secretarycf
the Board of Trusteesof the TsxarkanaIndependentSchool Distriotare the
officerswhose funotionsare most nearly comparableto those of the county
judge and oountyclerk,who LP~ chargedwiththe duty of receivingslec-
tion returnsin generalelections. For that reason, it is our opinion
that manual deliveryof the returnsmay be made to the presidentand
secretaryof the schoolboard.
His third questionis8
Qhen the returns o(we in from an electionbox with voted ballotsor sur-
plus ballotsloose and not sealed,what is the sohool distrlotsupposed
to do about t$e matter?'
It is our opiiionthat the s&o01 board shouldkeep all of these
ballotsfor one year after the election,and then burn them.
The specialrot quoted above adoptsthe rubs of generaleleotions
as being applicableto electionsin your districtinsofaraa theyaro not
changedby it. titicle 3026,V.R.C.S.,relatingto generalelections,
reads, in part:
"Immediatslyafter countingthe votes by the managersOf eleCtiOn,the
presidingofficershall plaoe all the ballotsvoted, togetherwith one
poll tax list and one tally list, into a wooden or metallicbox, and
- .-
Hon. T. XI.TPimbZa,page 4 (C-6006)
shall securelyfastenthe hex x?ithnails, s~"ewsdr locks, and he shall.
within ten days after the olsetioxr,
Sunda;ysazd the days of electionex-
eluded,deliversaid box tc the county clerk of his county, . 0 .,whose
duty it shall be to keep the sme securely;.,e + If no contestgrows out
of tho electionwithin one year rC%sr the day of such election,the said
clerk shall destrr,ythe contentsof said lnlEot box by burningthe some."
His fourthquestioniS8
"Are ths electionofficerssuppose.to give b&h the Prssidontmd the
Secretaryof the School Bard tally she*ta,poll lists,~&urns, regis-
ter of n&ilatad ballots,registerof absenteevotes, eto,BR
It is our opinionthat separatecopiesof the ret&s, poll lists,
and tally lists,should bs made both to the presidentand secretaryof the
board.
Article 3026, VeR.CeSC,,hersinaiwm quoted,providesthat such
returns, poll lists, and tally lists shall be sealedup and deliveredboth
to the county jGdge and to the ``~untyclerk. Aaswe have statedbefi*~e,
it is our opinionthat in s&oo% &action@:,the prssidentand secretary
of the schoolboard performsimilarfunctisnsix *hose of these county
officers.
Weare un~bla to find aw law pruP%dingfor tRe deliverybath to
the county judge and the cuurty olerk (or &I his casa,to the president
end secretaryof the schoolboard) inditidualcopies of registerof mutil-
ated ballots,registerof absentsavotes, or other electionmaterials,
other than those mentionedin t& precudingparagraph0 For that mason
we see no necessityfor making suoh dupXfcrtedalivaries.
His fifth questioniss
"Woh envelopeis to be openedwhen the returnsare oanmssed?"
It is our opinion&at both the m%urn rmde to the prosidentand
that made to the secretaryof the rehooR board may be cpmed.
The specialaat of the Legislaturequotedabove in our lnllr lo to
r
Mr. Stillwoll'8secondquestionpr&dea, in p*rts
1)
. . . such board shall oanvuassuch returna, D 0 .*
Both the copy delivorodto the pro&den% and thnt deliveredto the sacrota-
ry u-a offieialroturns. It ir th#refalour opinionthat in ordor to ef-
foot.8 oompl&.@canvassboth copies shouldbe opened*
Eia sixth quo&ion isn
Hon. T. M. fM.tnbl6,
pag6 5 IO-6006)
'In regard to raturnsof previousyears, how long ir th6~6ohooldis-
triat~topr686x-mthe rrturna befor d66troyingthem? And wbn tIio
Board do66 d6rtruy th6m, ~6 lay kind of roaordror affidavit6to bo
mado or any particularform of procedur6ob66medP6
The fir8t alau60of tbir inquirgi6 amwerad ia our opiniona6
to Mr. Sfillw611~6flr6t qu66tionmt out above in thi6 opinion.
W6k6 unable to fiad any provisionof law requiringany raaordt
or affidavit6to k made or any particularform of proc6dursto bo
obsarwd when th6 r6turn6are dertrcyod.
Pay truly youra,
Nl'ORNSYGESERALGFTEXIG
By /a/ U. I'.carry
T&T. Carry
AEEiStaIlt
APPRm JUL 5, 1944
/E/GOorgo % Blaoklxlra
(Acting)AT!tEtNEX GENERAL OF rntks By G.W.B.
Chainmn