                  THEATTORNEY                        GEXERAL
                                 OF       TEXAS



A-GRNEY     GENERAL
                                        April    16, 1962

      Honorable  Charles J. Lieck,         Jr.         Opinion         No. WW-1311
      Criminal  District Attorney
      Bexar County Courthouse                          Re:      Whether the Commissioners
      San Antonio 5, Texas                                      Court of Bexar County may
                                                                authorize      the use of vot-
                                                                ing machines for one poli-
                                                                tical     party at a primary
                                                                election,      and the use of
                                                                paper ballots       for another
      Dear Mr. Lieck:                                           political      party.

              You have asked     the     following    questions:

                  “1.   Can the Commissioners    Court of Bexar
                        County authorize    the use of voting
                        machines for one of such parties      at
                        the Primary Election    and the use of
                        paper ballots    for the other of such
                        parties?

                  “2.   If such use cannot be so authorized,
                        may the Commissioners      Court authorize
                        the use of voting     machines for both
                        parties    at the populous   voting  pre-
                        cincts    of the county and paper ballots
                        for both parties     in the less populous
                        precincts?”

              you have further         stated    in your     letter:

                         “It is the opinion      of the Commissioners
                  Court as expressed       by formal resolution       of
                  such court that the number of voting machines
                  owned by Bexar County is insufficient            to pro-
                  vide each party with voting         machines in each
                  precinct     in Bexar County; that the expense
                  to be Incurred      In the purchasing,     servicing
                  and storing     of additional    voting   machines is
                  prohibitive;     that there is insufficient         time
                  to procure     such machines for use in the Pri-
                  mary Election.       We add that no provision         has
                  been made in the 1962 budget for the rental
                  or additional      purchase   of voting machines.

                        “The Commissioners  Court of Bexar
                  County, Texas, in 1941, adopted voting
                  machines for use in elections   insaid
Honorable     Charles       J.    Lieck,     Jr.,    Page 2            Opinion    No. WW-1311



              County, at which time 300 machines were
              rented from the Automatic Voting Machine
              Corporation   and which machines were sub-
              sequently   purchased  from such company.
              Since that time Bexar County acquired
              additional   voting machines and now owns
              448 of such machines,     441 of which are
              in good working order,     ready for use in
              such Primary Election.”

           Sec.     3,   Art.    7.14,     Texas    Election   Code,   reads   in part   as
follows:

                         “The Commissioners        Court of any
                  county in the State of Texas may adopt
                  for use in elections         and primary elec-
                  tions   in at least     three (3) of the lar-
                  ger voting precincts         In voting   strength
                  in said county,      any~ kind of voting ma-
                  chine approved bg~ the Secretary          of
                  State and may adopt such voting machine
                  at any time for use in such additional
                  voting    precincts    In the county as it
                  may deem advisable        and thereupon     such
                  voting    machines shall      be used at any
                  and all elections       and primary elections,
                  municipal,     county,    district,    or state
                  held in that county or any part thereof.
                   . . . L Emphasis added_/

           Art. 7.14,    Texas Election      Code is derived    from Art. 2997a,
V.C.S.,    which   latter    article    was  repealed   upon  passage   of the
Texas Election       Code.    Art. 2997a, V.C.S. was enacted In 1930, Acts
4lst Leg.,     4th Called Session,         Chap. 33, page 60.      Sec. 3, Art.
2997a, V.C.S.      is the basis for Sec. 3, Art. 7.14,            Texas Election
Code.     Sec. 3, Art. 2997a, V.C.S.          was amended in 1937, Acts 45th
Leg.,    2nd  Called    Session,     Chapter  52, page 1953.      In the original
version    of Sec. 3 of Art. 2997a, V.C.S.            in 1930, and as amended
in 1937, and as It appears today in Sec. 3, Art. 7.14,                  Texas
Election     Code, are found the following           words:
                         !I     . and thereupon   such voting
                  machine shall be used at any and al~l
                  elections     and primary elections,    muni-
                  cipal,    county~, district   or state held
                  in that county or any part thereof.         . . .’

            This office,  lr Attorney   General’s Opinion No. WW-55, was
asked      whether the Commissioners    Court of Rusk County could dis-
pense      with the use of ioting    machines in a forthcoming  Special
r   -




        Honorable   Charles   J.   Lieck,   Jr.,   Page   3         Opinion   No. WW-1311



        Senatorial   Election,  and use paper ballots    instead,    where the
        Commissioners    Court had previously  adopted
                                                   - . . the  use   of  voting
        machines as provided    by Statute.   Tne oplnlon,    after    citing
        Sec. 3, Art. 7.14, Texas Election     Code, and underscoring         the
        words quoted above, held:

                           “On the basis of the foregoing
                    statute    the Commissioners       Court of Rusk
                    County Is not authorized         to dispense
                    with the use of voting machines at the
                    forthcoming      special   Senatorial     election
                    and use paper ballots         in lieu thereof.
                    However, the Commissioners           Court would
                    have authority       to rescind    its previous
                    order adopting       voting machines and there-
                    after    paper ballots     could be used at all
                    special,     primary,    and general    elections
                    held in Rusk County.”

                 We understand      from your letter       that the Bexar County Commis-
        sioners   Court in 1941 order the use of voting machines in all pre-
        cincts   of the county.        The use of paper ballots        by one political
        party in its primary election          would not comply with the statute
        which requires      the use of such voting         machines at any and all elec-
        tions   and primary elections.         Certainly,      there should be no dis-
        crimination    between political       parties     in the use of voting     machines.
        We hold,    in answer to your first        question,      that the Commissioners
        Court may not authorize         the use of voting       machines by one political
        party and the use of paper ballots             bye another political   party in
        conducting    their    respective   primary elections.

                  In answer to your second question,         we would like to point
        out that under the order of the Commissioners              Court now in force,
        all parties      must use the voting machines in the primary elections
        in all precincts.       However, as held in Opinion No. WW-55, the
        Commissioners      Court may rescind     its previous    order directing   the
        use of voting machines in all precincts.             Wnen that is accomplished,
        the county is back where it started,          using gaper ballots      in all
        precincts     for all types of elections.        We see no reason why,the
        Commissioners      Court may not thereafter      avail itself    of the provl-
        dons     of Sec. 3, Art. 7.14, Texas Election          Code, and adopt the
        use of the machines in as many precincts            as the county has machines
        available     for both political     parties.    This will leave all pre-
        cincts    not affected    by the last order still       using paper ballots.
        The status of each precinct        in the county with respect        to the use
        or non-use of the voting machines would continue              at every election
        to be held thereafter,       subject   to further     orders of the Commis-
         sioners    Court.
Honorable   Charles   J.   Lieck,   Jr.,   Page 4               Opinion     No. Ww-1311



         Other solutions   to the county's  voting   machines problem
may be   found In Subdivision    6 of Art. 7.14,   Texas Election  Code,
and in   the cases of @xar    County v. Hatley,    136 Tex. 354, 150
S.W.2d   980          and Bexar County v. Mann, 138 Tex. 99, 157
S.W.2d   134
                                    SUMMARY

                   The Commissioners    Court may not discriminate
            between poltical    parties   in the use of voting ma-
            chines.

                    If the procedure    outlined  In the opinion  is
            followed,     it will not be necessary    to use paper
            ballots    in all precincts     in Bexar County~. Voting
            machines may then be used in the more populous
            precincts     on a non-discriminatory    basis.

                                           Yours    very   truly,

                                           WILL WILSON
                                           Attorney General         of   Texas



                                           By 6$+2gei!fiXZC~
                                              Assistant    Attorney        General

REF:jp

APPROVED:

OPINION COMMITTEE:
W. V. Geppert, Chairman

William Hemphill
Jack N. Price
Gordon Zuber
W. E. Allen

REVIEWEDFOR THE ATTORNEYGENERAL
By:  Houghton Brownlee, Jr.
