                                        The Attorney                  General of Texas
                                                               July    10,   1978

JOHN          L. HILL
Attorney General



                               Honorable Lynn lngalsbe                          Opinion No. H-1207
                               Criminal District Attorney
                               Taylor County Courthouse                         Re: Whether canvassing board
701Commerce.
           suite200            Abilene, Texas 79602                             may order recount of ballots
DalIa%
     TX.75202                                                                   in local option election.
214,742~8944

4824Alberta
          Ave.,
             suite160
ElPaso,TX.799%        Dear Mr. Ingalsbe:
9151533-3484
                            At the instance of the Commissioners Court of Taylor County sitting as
                      a canvassing board, you request our opinion concerning          whether the
                      canvassing board has authority to order a recount of the ballots in a recent
                      local option election in which paper ballots were used.

                                      The Commissioners Court met as a canvassing board under section
                               251.51 of the Alcoholic Beverage Code.       A group of citizens requested a
                               recount of ballots at that time. Your office advised the board that neither
                               the Election Code nor the Alcoholic Beverage Code authorized the board to
                               order a recount.    In your brief of the law submitted with your request as
                               required under article 4399, V.T.C.S., you conclude that there is no legal
                               authority for the commissioners court sitting as a canvassing board of such an
                               election to recount the ballots.

                                         Upon receipt of your request we referred the question to the Secretary
                                  of State. Article 1.03 of the Election Code designates him the chief election
                                  officer of the State, and gives him the responsibility of insuring the uniform
                                  interpretation   and application of the election laws. See Attorney General
                                  Opinion    H-407 (1974) (establishing policy of referral of -6&tion law questions
Affirmative   Action   Emplop=,^_     -
                                  to Secretary of State).
Honorable     Lynn   Ingalsbe,     - page      2     (H-1207)



      The Secretary of State has advised us by his letter of June 30, 1978, that in
his opinion there is no legal authority for the commissioners court sitting as a
canvassing board of such an election to recount the ballots.

       As you and the Secretary of State conclude, the law is clear that the
canvassing board has no power to order a recount.       The board’s only authority in
this election is to ascertain that the papers submitted as election returns are in the
correct form and properly authenticated by the proper officers, and to compile the
votes shown on the face of the returns and declare and certify the result
ascertained.

      In Perguson v. Huggins, 52 S.W. 904 (Tex. 1932), the Texas Supreme Court
discussed the limited powers and duties of a canvassing board and quoted authority
for certain “elementary rules of law” as follows, at pp. 905-906:

            It is settled beyond controversy that canvamers cannot go
            behind the returns. The returns provided for by law are the
            sole and exclusive evidence from which a canvassing board
            or official can ascertain and declare the result. . . .’

               The authorities likewise hold that, in the absence of a
            statute conferring it, a board of canvassers has neither
            express nor implied power to recount the ballots. . . .

      The supreme court reiterated    these elementary rules of law in Grant v.
Ammerman, 437 S.W.2d 547 (Tex. 1969). The court held that canvassing the votes
of an election is a ministerial function and that in the case before them, the
commissioners court sitting as a canvassing board “did not have the power to go
behind the election returns.” The court said it has been held that a canvassing
board “may not supplant statutory procedures for the contest of an election.” -Id. at
549-550.

      There is no statute in either the Election Code or the Alcoholic Beverage
Code which authorizes the commissioners court to conduct a recount In a local
option election conducted with paper ballots. A district judge may order a recount
upon petition of 25 voters when an electronic voting system is used. Blec. Code
art. 7.15. A “recheck and comparison of the results” in the presence of a district
judge and the county judge may be requested when voting machines are used. Elec.
Code art. 7.14, SS 19, 19a. A recount at the request and expense of a candidate is
authorized when paper ballots are used in an election for a public office.    Elec.
Code art. 9.38a. Each of these statutes sets out elaborate procedures specifying
who may request a recount or the number of voters required to request it, to whom
and when the request must be made, the grounds for a request, and how the costs
involved are to be paid. The procedures differ substantially among the several




                                          P.       4844
Honorable     Lynn   Ingalsbe    - page    3     (H-1207)



provisions. None is applicable to the type of election before us. While the law may
be inconsistent or incomplete in this regard, such arguments are properly addressed
to the legislature. They have no bearing on what the law is at this time.

       We concur with the legal conclusion reached by you and by the Secretary of
State.   In our opinion it is clear that there is no statutory authority for the
commissioners court sitting as a canvassing board under section 251.51 of the
Alcoholic Beverage Code to order a recount of the ballots in this local option
election. An election such as this may be contested in the manner set out in article
251.55 of the Alcoholic Beverage Code after the results are declared by the
canvassing board. Ellis v. Vanderslice, 486 S.W.2d 155 (Tex. Civ. App. - Dallas
1972, no writ).  See also Rlec. Code, ch. 9.

                                  SUMMARY

            The commissioners court, sitting as canvassing board under
            section 251.51 of the Alcoholi,c Beverage Code, has no legal
            authority to order a recount of paper ballots in a local
            option election.

                                          Very truly yours,




                                          Attorney General of Texas


APPROVED:




L
Opinion Committee    ’




                                            P.   4845
