  .




                                  AUSTIN    11. -,kXAS
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                                                         I
                                October 16,      1963             :\i.,e,i.:.s ‘,.:;.::,;~:.,
                                                         1      + .~.R.G%I~              ~..,
                                                         -------------~--___

            Honorable Wallace Shropshlre
            County Attorney of Travis County
            Austin, Texas,
                                   Opinion NO. c-162
                                   Re:     The number of sets of
                                           ballot forms, ballot
                                                  returns, etc.,
                                           boxes,,.
                                           required for.the special
                                           elections to be held In
                                           Travi.6County on November 9,
            Dear Sir:                      1963,.

                      You have asked our office for an official opln-
            ion on the questions propounded ln.the following letter
            which you have received from the Travis County Elect%on
            Board :
                        “(1) A proclamation has been Issued
                   by the Governor’s office calling a Special
                   Election to be held on Nov. 9, 1963 to vote
                   upon certain amendments to the State Consti-
                   tutlon.
                        “(2) A proclamation haa been Issued
                   by the Governor’s office calling a Special
                   Election to be held on Nov. 9, 1963 to elect
                   a Congressman for the 10th Con re~asionalDls-
                   Crlct for the unexpired term of the Hon. ,Homer
                   Thornberry.
                        “(3)  A proclamation has been lsaued by
                   the Governor’s office calling a Special
                   Election to be held on Nov. 9, 1963 to elect
                   a State Representative for the 55th Repreeenta-
                   tlve District, Place 4, for the unexpired term
                   of the Hon.’Jack Rltter, Jr.
Hon. Wallace Shropshire, page 2 (c-162)


          "(4) Since all of the above Special Elec-
     tions fall on the came day and since the same
     General and-special Election officials will
     handle each of the authorized elections, is It
     legally permissible and proper under our Elec-
     tion Laws to treat the several matters as one
     Special Election, with one ballot encompassing
     the candidates for each of the aforesaid public
     offices and the Constitutional Amendments, In
     the same way that a General Election ballot
     encompasses candidates for office and Constltu-
     Mona1 Amendments on the same ballot, same
     election returns, etc.?
          “(5)   Further, a delegation of citizens
     has heretofore appeared before our County Com-
     missioners" Court and stated their Intention
     of filing a pe,$ltlonto,call a Special Elec-
    ~tlon to creat@~a Travis County Junior College
     Dlstri'ct'atsuch a time, that this election
     would be called for Nciv.9, 1963 also. This
     petition w?uld~Tall for the following ques-
     tlo,ns-'tobe passed~'uponby the qualified voters:
              For or Against creatlng'the Junior
              College District.
              For an Initial Board of 7 Trustees.
              For or Against the levy of a Maln-
              tenance Tax,
              For dr Against the Issuance of Bonds.
              and levying a tax In payment thereof.
               I~tis conceded that a se arate ballot
    is neXi   to vote upon Items.3 and & of para-
    graph 5.  Ijowever,'
                       If the answer to the question
    raised in .paragraph4 la in the affirmative, Is
    It then legally permissible and proper under our
    Election Laws to place Items 1 and 2 of the .Junlor
    College Special Election, described above, on the
    same ballot with the ,ConstitutlonalAmendments and
    candIdat& for the offices named herein?"
          Each of the above-mentioned elections will be held
at the expense of the county. The commissioners court will
canvass the returns and the county clerk will have the custody

                          -786-
Hon. Wallace Shropshire, page 3 (c-162)


    the 'votedballots In each _election.
of ,.                               _ _.  While
                                           .    there.is no
express statutory autnorlty for nolaing tnese electlons
 Jointly, it Is well established that they may ,lawfull be
.held at-the same ,tlme and place, Att'y Gen. Ops. O-23i53
 (1940), O-6496 (1945), W-728 (1959). Since the recent
amendment of Articles 3.01, 3.02, and 3.0% of the Texas
Election Code (Sections.8   and 11 of Chapter 424, Acts
of the 58th Legislature, 1963, which became effective
on August 23, -1963), it Is also clear that all of these
elections may be conducted by the same election   officers.
Attly,Gen. Ops. ~0-2853and O-6496, supra, and Op. v-1367
 (195s).
         ~Only resident qualified electors who own
taxable property which has been duly rendered for taxatjon
In Travis County will be ellglble to vote on the junior
college'tax levy and bond:issue propositions. Tex. Conet.
Art. VI, Sec. 3a; V.A.T.S. Election Code, Art. 5.03,
On all other matters to be voted on at these elections,
all qualified electors of the county will be eligible to vote.
          Prior opinions of .thls office have held that
special elections.may be conducted at the same time and
place as general elections, other special elections, or
party primaries, but that they should be c,onductedas
separate elections with separate ballots, ballot boxes;
poll lists, etc, There are compelling reasons for re-
quiring that the election supplies and records (either as
to some of them or as to all, depending on the nature of
the elections) should be furnlshed and kept separately
where the elections are not paid for by the same authority,
are not conducted by the'same officers, or are not
canvassed by the sa.meboard, where the qualifications of
the voters are different, or where different officers have
custody of the voted ballots. All of the prior opinions
involve-elections where one or more of these factors was
present, except Opinion o-2853, written in 1940, and two
later opinions, O-4872 (1942),and O-6496 (1946), which
cite and.follow o-2853 without further discussion. The
elections,,involvedIn these three opinions were: .the
general election for state and county officers and a
county-wide'local option liquor election (O-2853); the
general e3.ection.and a special election for State Sena-
tor (O-4872); a special election on a constitutional
amendment and a county-wide special election for tax
reallocation (O-6496).

                            -m-
Hon. Wallace Shropshire, page .4 (C-162)


          Opinion O-2853 .held that the elections could be
conducted by the same'offlcers, but that separate ballots
should be used and the voted ballots should be deposited
in separate ballot boxes, so,that in the event of a contest
of one of the elections the'challenged voters' ballots In
the other election would not be subject to.exposure. It
further held that the poll lists, tally lists, and~returns
of each.electlon would also necessarily have to be separate
and distinct. The opinion recognized that failure to use
separate balLots and ballotboxes would not Invalidate
the election, and that neither election would be Invalid
If it was otherwise cdnducted so as to secure a fair and
honest election. The reason for requiring that the ballots
be kept separate was, therefore, solely for the protection
of the secrecy~of the balloti
          Your oplnion,request takes note of the fact that
It will be,necessary tomkeep a separate poll list of the
persons voting on the junior college tax and bond proposl-
tlons, and that the ballots must be prepared In 6uch.a
manner that only those eligible to vote on these proposl-
tlons will be furnished ballots enabling them to do so.
Accordingly, this.opinion is limited $0 the Legality and
propriety of placing oneone ballot form all.the other
matters to be voted on In these special elections.
          Article'VI; Section 4 of the 'Texas Constitution
provides that ln.all~electlons the vot,eshall be by ballot.
This provision Is construed to require a secret ballot,
and the f~rameworkof .our election procedures Is built upon
the concept thatthe voter's right to a secret ballot
should be protected. ~.The'Constitution does not guarantee
absolute secrecy, however, and the Legislature may determine,
within llnilts,what the public policy of the State will be
where the protection of the secrecy of the ballot~comes
into conflict with other considerations whlch,are In promotion
of the public interest. Thus, In an election contest the
Legislature may authorize the court to permit examination
of the ballots of disqualified voters, in order to deduct
their votes. Whenever an election contest arises In any
election where more than one office or proposition Is
voted on, the examination of ballots In the contest pro-
ceeding permits exposure of how challenged voters had voted
in the traces,and issues not being contested. Nevertheless,
the Leglslature.has expressly provided that all races shall

                           -78s
,




    Hon. Wallace Shropshlre, page 5 (c’-162)


    be placed on the same ballot.ln general ,elections and in
    primary elections. The publla.pol$cy of the State, as
    declared by the Legislature, clearly does not forbid use
    of a ballot form which permits exposure of~the’uncontested
    portion of the ballot lngeneral.and primary elections.
              The long-standing practioe.of placing propqsed
    constPtutiona1 amendments on the general election ballot,
    where they are to be voted’on at the same timqis not
    expressly authorized by statute, but the Leglslature~has
    sanctioned It by failing to prohibit it. This practice
    likewise cannot be .takenas violative of public policy
    because of exposure which would result from a contest
    arising out of either the general election or the special
    election on the constitutional amendments.
              As previously indicated, the former opinions
    deallng,with joint eleotlons have not been based on express
    statutory provisions,authorizing the ~holdlng of joint elec-
    tions and regulating their conduct. A few isolated statutes
    provide for the holding,,at the same time and place, of two
    elections ~whlch .are called and q3nvassed by separate authorl-
    ties (e.g.; Arts. 2676 ana 2774b, V.C 3. ),.btitotherwise
    there is no express ~statutoryregulation of Joint elections
    except for Article 27460, V,C.,S,,.whici?was enacted in 1959.
    This statute.reads as follows:. .~.,
              ~!!Art.2746~. Joint eleotlons of governing
                   bodies of school aistriots
               “Seotion 1. Whenever an election for
         members of the county board of school trus-
         tees, the board of education, .board of trus-
         tees or other governing boapa of any school
         district, or the board of regents, board of
         trustees or other governing board of any
         junior college district, regional college
         district OP other type of,co&lege district,
         is to be held on the same day and wlthln all
         or part ofthe same territory asany other
         of .theeleotions whereinenumerate~d,the :
         various offioers, boards or bodies charged
         with the dUty of appointing the election of-
         ficers, providing the supp$$es, oanvasslng
         the returns,  and paying the expenses of such
.   .




        Hon. Wallace Shropshire, page~6 (,C-162)


             elections may agreeto hold the elections
             jointly and may agree upon the method for al-
             locating the expenses for the joint election.
            Resolutions reciting the terms of the agree-
             ment shall be adopted by each of the partici-
             pating boards or bodies. The agreement may
             provide for use of a single ballot form at
             each polling place, to contain all the of-
             fices to be voted on at that polling place,
           ,or for separate ballot forms which may com-
            bine two or more of the sets of county or
           'district offices to be voted on, provided
             that all of the offices and candidates for
             each district 'orpolitical subdivision shall.
            appear on the same ballot, One ~setof elec-
             tlonofficers may be appointed to conduct
             the joint electibn,.and 'anyperson otherwise
             qualified who 'is a"rdii$enf of elther‘of the
             districts.or political~subaivfslons holdfng
           .the election shall be ‘el’lgible to serve as
            ‘an e~e&ion officer. Poll lists; tally
             sheets, and return.forms for’the various
           .,’
             elections may bs combined In’any manner
             convenient and',adequateto record and
             report the.results of each electlon, and
             one set of ballot boxes and one stub box
             may be used for receiving all ballots and
            ballot stubs for the joint election. Returns
             on joint or separate forms may be made to,
             and the canvass made by, each officer, board
             or body designated by law to receive and can-
             vass ‘the,returnsof-each election, or one’of
             such officers, boards or bodies may be desig-
             nated to receive and canvass’the returns for
             the joint election and to reportthe results
             of each electIon to the proper authority.
             Where the,counted ballots for two or more of
             the elections are deposited in a single bal-
             lot box, the box containing  the counted bal-
             lots shall be returned to the officer or
             board designated in the agreement,  which shall
             be an officer or board designated by law to
             receive and,preserve the counted ballots for
             one of the elections zonstitutlng a part of
             the joint election."

                                   -790-
.   .




        Hon. 'WallaceShropshire, page 7 (c-162)


                  Article 2746~ expressly permits use of a single
        ballot form and set of ballot boxes or of separate forms
        and boxes, at the discretion of the boards charged with
        the duty of furnishing the supplies. The obvious purpose
        of the statute is to permit the election authorities to
        prepare the ballots and to provide for their handling in,
        the manner best suited to the orderly, efficient conduct
        of the electiong. The.Legislature,'by the enactment of
        this statute, has declared the public policy~of this State
        in joint elections with respeot to the balancing of the two
        opposing considerations--protection of the secrecy of the
        ballot on the one hand and the efficient, orderly and eco-
        nomical conduct of the election on the other hand. If this
        statute had been in existence in 1940, we daresay that a
        different result would have been reached in Opinion o-2853.
                  We think there can be no question that the Legis-
        lature could validly authorize the joint conduct of these
        four special elections as a combined single election. We
        also concur in'the former rulings that two or more elec-
        tions may be held at the same time and place withoutexpress
        statutory authorization, provided the procedures comply
        with ,express statutoryrequirements pertaining to each
        election and do not violate the spirit and policy of the
        election laws,. Where the elections are held by the same
        officers and are canvassed by the same authority; and
        the same officer has custody of the voted ballots in each
        election, it is our opinion that the authority charged with
        the duty of furnishing the supplies for the elections may
        determine whether separate or combined forms shall be used
        for the ballots, the poll and tally lists, and the returns,
        and, agreeably with ts decision on the form of the ballot,
        may determine how m4 sets of ballot boxes shall be used.
                  We hold that the Travis County Election Board may
        determine, within its discretion, whether to use a single
        ballot form for all matters to be voted on at the special
        elections to be held on November 9, 1963 (other than the
        junior college tax and bond propositions), or to use
        separate ballots for each election, or to combine the bal-
        lots for the different elections in such other manner as in
        its judgment will be most appropriate for the efficient
        conduct of the election.
-.   .




         Hon. Wallace Shropshire, page 8 (c-162)


                                    SUMMARY
                       Where a special election for voting on
                       constitutional amendments, a special elec-
                       tion to fill a vacancy in the office of
                       United States Representative, a special
                       election to fill a vacancy in the office
                       of State Representative, and a special
                       election to create a county junior col-
                      'lege district are called for the same
                       day, the.four special elections may be
                       held jointly by the same,election offi-
                       cers, and all the matters on which all
                       qualified electors of the county are
                       eligible to vote may be placed on a
                       single ballot form.
                                          Yours very truly,
                                          WAGGONER CARR
                                          Attorney General



                                               Assistant
         MKW:'ms:sj

         APPROVED:
         3PINION COMMITTEE
         W, V. Geppert, Chairman
         J. C. Davis
         C. L. Snow
         Fred Ward
         APPROVED FOR THE ATTORNEY GENERAL
         By:   Stanton ~Stone




                                       -792-
