  WILL    WILSON
A1TsxRNEYGENERAl.
                                  May 2, 1962

    Honorable John E. Pitzgibbon        Opinion No.   WW-1324
    County Attorney
    Webb County Courthouse              Re:   Whether the provisions of
    Laredo, Texas                             Art. 13.04, Texas Election
                                              Code, with reference to
                                              places of holding party
                                              primaries are mandatory
    Dear Mr. Ritzgibbon:                      or directory.
            You have asked the following questions:
                “1.   Is Art. 13.04, Texas Election
                      Code, mandatory or merely direc-
                      tory?
                “2.   In the event the two Chairmen of
                      the two political parties cannot
                      agree as to the use of the same
                      polling places, does the County
                      Judge, under the provisions of
                      the second sentence of Art. 13.04,
                      Texas Election Code, have the dis-
                      cretionary power to designate pol-
                      ling places less than 100 yards
                      apart from each other, or is he
                      ;;t;r;ound under the first sentence
                              13.04 to designate polling
                      places’not less than 100 y,ards
                      apart?”
            You further stated in your letter:
                    “Several weeks ago, Mr. Honore
               Ligarde, the Democratic Chairman from
               Webb County, was foresighted enough to
               request the Laredo Independent School
               District for the use of the schools in
               order to hold the Democratic Primary.
               No request at that time was made by
               the Republican Party~and it is unknown
               as to whether or not any request to
               use the schools have been made at this
               time by the Republican Party.
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Honorable John E. Fitzgibbon, Page 2           Opinion No. W-1324


             “It will be impossible in most
        of the schools in the Laredo Indepen-
        dent School District, because of the
        square foot area, to hold primaries
        for both parties the same day and still
        keep the polling places over one hundred
        yards apart .‘I
      Art. 13.04, Texas Election Code of 1951 (formerly Art.
3103, Revised Civil Statutes of Texas, 1925) reads as follows:
              “The places of holding primary
         elections of political parties in
         the various precincts of the State
         shall not be within one hundred (100)
         yards of the place at which such elec-
         tions or conventions are held by a
         different political party. When the
         Chairmen of the Executive committee
         of the different parties cannot agree
         on places where precinct primary elec-
         tions to be held on the same day shall
         be held, such places in each precinct
         shall be designated by the county judge,
         who shall cause public notice thereof
         to be given at once in some newspaper
         in the county, or if there be none, by
         posting notices in some public place
         in the precinct."
      Art. 2.03, Texas Election Code of 1951 (formerly Art. 2932,
Revised Civil Statutes of Texas, 1925) reads as follows:
              "In all cases where it is practi-
         cable so to do, all elections -- gen-
         eral, special or primary -- shall be
         held in some school house, fire station
         or other public building within the
         limits of the election precinct in
         which such election is being held. No
         charge shall be made for the use of
         such building, except that any addi-
         tional expense actually incurred by
         the authorities in charge of such
         building on account of the holding
         of the election therein shall be re-
         paid to them by the party,who would
         be liable for the expenses of holding
         the election under the existing law.
         If there be no public buildings so
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        Honorable John E. Fitzgibbon, Page 3            Opinion No. WW-1324


                 available, such election may be
                 held in some other building.”
              In Johnson County, the Commissioners Court had duly entered
        an order defining the election precincts within the city of Cle-
        burne, and designating certain school buildings therein as the
        places where the elections should be held. In 1932 the school
        board notified the Democratic Executive Committee and the Commis-
        sioners Court that the Board would not permit the elections to
        be held in the school buildings. The Democratic Executive Commit-
        tee brought suit against the Board seeking a writ of mandamus to
        compel the Board to permit use of the school buildings for the
        First and Second Democratic Primary Elections of 1932. The Commis-
        sioners Court intervened and prayed for a like writ with respect
        to the use of the buildings for the General Election of 1932.
        The trial court granted the writ of mandamus, which was affirmed
        by the Court of Civil Appeals, in the case styled Trustees of
        Independent School District of Cleburne v. Johnson County Demo-
        cratic Executive Committee, et al, 52 S.W.2d b8. The trial
        court found that the school buildings designated by the commis-
        sioners court as the places where the elections should be held,
        were the only public buldings within the respective election
        precincts. The Supreme Court of Texas reversed the trial court
        and the Court of Civil Appeals, in 122 Tex. 48, 52 s.w.2d 71,
        and stated at page 72:
                       “We think it is manifest that
                 article 2932 [now Art. 2.03, Election
                 Code] governs only general and special
                 elections and not primaries, since the
                 place of holding primary elections is
                 expressly,and differently provided for
                 in article 3103 [now Art. 13.04, Elec-
                 tion CodeJ. . ,. .
                      II
                           4   .   .



                      1,
                      . . . The discretion to determine
                whether it is practicable to hold elec-
                tions in schoolhouses, ~ . . , is to be
                exercised by t’hetrustees. ~ . The uncon-
                tradicted evidence conclusively shows
                that the trustees were reasonably and
                faithfully exercising their discretion
                in refusing to permit the schoolhouses
                to be used for holding the general elec-
                tion therein.”
              In the above case, the trial court had found that the school-
        houses were the only public buildings within the election precinczs.
Honorable John E. Fitzgibbon, Page 4           Opinion No. WW-1324


Yet the Supreme Court of Texas upheld the right of the school
district to exercise its own discretion in refusing the use of
the buildings for both the primary elections and the general
election. If it is discretionary with the governing board,
council or commission as to whether its public buildings shall
be used as polling places in elections, then there is even less
power for a-commissioners court or a political party to designate
a privately owned building as a polling place, without permission
of its owner. Since the Supreme Court has stated that Art. 2.03,
Election Code, has no application to primary elections, then the
action of the Laredo Independent School District's board in per-
mitting the use of the school buildings by the first political
party to ask from them is no abuse of discretion on their part.
We are not in favor of discrimination against any legal political
party, but in this case the Democratic party simply asked first.
       Having made their arrangements for holding the Demobratic
Primary, is the County Judge now called upon under Art. ~13.04,
Election Code, to oust the Democrats from some or all of their
polling places? We don't think so. The Supreme Court has al-
ready said that Art. 2.03 has no application to a primary elec-
tion. Suppose the Republicans now select a building within 100
yards of a school building, already designated as a polling
place for the Democrats, and call on the County Judge to make
the Democrats move to some other building, so as to be 100 yards
or more away from the Republican polling place. Suppose, further,
that the building selected by the Republicans and the school
building designated by the Democrats are the only two available
buildings. To hold that Art. 13.04, Election Code, which directs
polling places of different political parties in the same pre-
cinct be located at least 100 yards apart is mandatory, would
be to assume that all voting precincts within the state contain
at least two available buildings (and us     not impossible to
have three or more political parties holding primaries on the
same day) properly spaced for holding primary elections. Since
the County Judge has no control over most of the buildings which
might be involved in a dispute, and since the available build-
ings vary from precinct to precinct, to hold that Art. 13.04 was
mandatory in every case would be to place the County Judge in
an impossible position.
      We think reasonable men, in anticipation of a coming elec-
tion, ought to sit down and work out the solution to this prob-
lem, without acrimony. Eut where, as here, one party has acted
to take care of its needs in ample time, the other party is then
left with the problem of finding a suitable polling place at
least 100 yards from the first party's polling place. This may
not always be possible. Where there is a choice of several
available buildings within an election precinct, the political
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         Honorable John E. Fitzgibbon, Page 5            Opinion No. WW-1324


         parties ought to comply with the statute; and in such cases if
         polling places are designated by each party within less than
         100 yards of each other, the county judge should then designate
         the place for each party. But the law will not compel the County
         Judge to perform an impossible act. Where the polling.places of
         the parties are within less than 100 yards of each other, but
         the buildings selected are the only available buildings (and this
         a fact question to be decided bn ihe Countv JudRe). the
                                                              ~~~.~_~~~~~~_”
                                                                 nrimarv
         election for both parties will still be heid, a;d’in the polling
         places selected by the respective parties.
               fin answer to your first question, we hold that Art. 13.04,
         Texas Election Code is mandatory only,to the extent that com-
         pliance therewith is practicable. In answer to your second ques-
         tion, we hold that where through disagreement of the County Chair-
         men, the polling places of their respective parties are within
         100 yards of each other in the same precinct, and where there
         is another or other available building or buildings which could
         be used as polling places which comply with the statute regarding
         spacing, the County Judge shall settle the disagreement by desig-
         nating a suitable available building or buildings for one or more
         parties. Whether such other building or buildings are suitable
         and available is a fact question to be decided by the County Judge,
         at his discretion.

                                   SUMMARY
                       Art. 13.04, Texas Election Code is manda-
                  tory only to the extent that compliance there-
                  with is practicable.
                      Where through disagreement of the County
                 Chairmen of different political parties, the
                 polling places of their respective parties are
                 within 100 yards of each other in the same pre-
                 cinct, and where there is another or other avail-
                 able building or buildings which could be used
                 as polling places which comply with Art. 13.04
                 regarding spacing, the County Judge shall settle
                 the disagreement by designating a suitable
                 available building or buildings for one or more
                 of the parties. Whether such other building
                 or buildings are suitable and available is a
                 fact question to be decided by the County Judge,
                 at his discretion.
                                         Yours very truly,
                                          WILL WILSON
                                          Attorney General of Texas
Honorable John E. Fitzgibbon, Page 6           Opinion No. WW-1324


                                 BY @I       &-spn.
                                    Riley Eugene Fletcher
                                    Assistant

REF/Jp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Marietta McGregor Payne
ljen;y;;;fell
 . I
F. C. Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
