              THE      ATTORNEY                 GENERAL
                             OF    TEXAS




                               August    2,   1963


Honorable  Joe Resweber                       Opinion    No. C-     122
County Attorney
Harris County                                 Re:   Whether an electronic
Houston,  Texas                                     type voting  machine is
                                                    legal  under State law
Dear Sir:                                           and related  question.

           You state that your office  has been requested                  by the
County Judge of Harris County to secure the opinion     of                the Attor-
ney General on the following  two questions:

            (1)   Can Harris County       mix voting      machines
                  and on what basis?

            (2)   Is an electronic       type   voting    machine
                  legal under the       State   law?

      __     ^Section    1 of
                           . . Article  7.14, Vernon's    Texas Election  Code,
proviaes     for examlnatlon     ana approval   of voting   machines by the
Secretary      of State.    Upon approval    of a machine,    the statute pro-
vides that "machines of its kind may be adopted for use at elections
and primary elections         as herein provided."     Sections   3 and 5 of
Article   7.14, as amended by S.B. 61, Chapter 424, Acts of the 58th
Legislature,      1963,   which will become effective      on August 23, 1963,
read as follows:

             “Sec. 3. Adoption by commissioners           court.
      The commissioners     court of any county In the
      state may adopt for use In elections            in at least
      three of the larger      election    precincts    in voting
      strength   In the county,      any kind of voting      machine
      approved by the Secretary         of State,    and may adopt
      such voting   machine at any time for use in such
      additional   election    precincts    In the county as It
      may deem advisable.        . . .'




                                     -606-
Hon.     Joe Resweber,    page 2 (C-    122 )



                “Sec.   5.   Providing voting    machines.     The
         commissioners      court of a county which has adopt-
         ed voting     machines for that county or any portion
         thereof,     shall as soon as practicable,       and In no
         case later     than six months after     adoption   thereof,
         provide   for each election    precinct    designated
         one or more approved voting       machines in completed
         working order,      and shall thereafter    preserve    and
         keep them In repair.”

            We agree with the conclusion      you have reached in your
brief   that the commissioners    court may provide    more than one
kind of machine for use In the county,        the only limitation    being
that each kind must have been approved by the Secretary           of State.
At the present    time, three kinds or makes of machines have been
approved by the Secretary      of State.    In our opinion,   there is
nothing   In the law to prevent Harris County from acquiring         machines
of all three makes.     Nor is there any legal     Impediment to use of
more than one kind or make in a particular        precinct.     It might be
debatable   whether the mixing of machines would or would not be
undesirable   from a practical    standpoint,   but from a legal    stand-
point there Is no reason why It could not be done.

              Your second question      is whether an electronic         type
voting   machine is legal     under the State law.         Section    2 of Article
7.14  sets out certain     requirements       which a voting     machine must
meet In order to be approved,         but does not specify        that the opera-
tion of the machine must be based upon any particular                 principle.
No principle,     mechanical,   electrical,       or otherwise,     Is forbidden,
so long as the machine complies           with the statutory      requirements.
However, when Article      7.14   Is read In its entirety,          it is seen
that the type of voting       machine authorized        for approval     and adoption
by that statute      is a machine upon which votes are registered                and
automatically     counted by means of registering           counters   constructed
Into the machine.       See Article    7.14,    Sections    10, 12 and 18.        The
three makes of machines which have been approved by the Secretary
of State are of this type.

             There Is also a type of voting          machine or ballot-marking
device    on the market by which a ballot         in the form of a punch-card
Is Inserted     into the machine and the voter marks his ballot              by
punching a slot opposite         the names of candidates       or the statements
of propositions      to indicate    how he wishes to vote.         The ballots     from
the various     precincts   are automatically       counted and tabulated       on
electronic    data-processing      machines at a central       location.     We
understand    your second question       to relate     to this type of “voting
machine.”     The Secretary      of State thus far has not approved any
machine or device       of this type for use in elections          in this State,


                                        -607-
Hon. Joe Resweber,           page    3 (C-' 122, )



and we are of the opinion   that   Article    7.14   does not authorize
approval  of this type of 'machine.      A bill    (H,B. 111) was lntro-
duced at the last session   of the Legislature        to authorlze,approval
and adoption  of this type oft equipment,       but the bill   died incom-
mlttee In the ,Senate after   having passed,the       House.   We come,
then, to the question   of whether this type of equipment may law-
fully  be used without  the approval     of the Secretary     of State.

             Section        1 of    Article    7.14   contains   the   following   provi-
sion:
              8,
                 . . .Any form of voting   machine not approved
        as herein     set out, or which has not been examined
        by voting     machine examiners  and reported    on pur-
        suaht to law and its use specifically        authorized
        by law, cannot be used at any election        or primary
        election    in the State of Texas."

If th ballot-marking         device   to be used in conjunction      with data-
proce ii.3ing equipment Is considered         to be a form of voting      machine
within    the meaning of Article       7.14,   this statute   would expressly
prohibit     Its use, since It has not been approved by the Secretary
of State and could not lawfully            be approved under the authority
conferred     on him by Article     7.14.     There is no statute    authorizing
use of any other type of machine or equipment.               The only authorized
methods of voting       In this State are by use of paper ballots           to be
marked and counted as provided           In Articles   6.06 and 8.19 of the
Election     Code and by use of voting        machines which have been ap-
proved and adopted as provided           in Article   7.14.   Without considering
the question      of whether a valid election        could be held under any
circumstance      by any other method, it Is sufficient          for the purpose
of this opinion       to state that the holding       of an election     by use
of any other method could be enjoined             in advance of its holding,
and the expenditure       of county funds for any type or kind of voting
machine not authorized        for adoption     under Article   7.14 would be
Illegal.       Clancy v. Clough     f 0 S.W.2d 560 (Tex.Civ.App.       1928);   Davis
                                  b Tex.Clv.App.      1948);  Galveston,    H.m.
ii$?E%%v~~~e"~~~~~y~"             167 S.W.2d 305 (Tex.Civ.App.        1943, error ref.
w.0.m.).


                                        SUMMARY

             A     county  which has adopted voting  machines
        may use     more than one kind or make of machine
        if each     kind used has been approved by the Secre-
        tary of     State in accordance   with the procedure
        set out     in Article  7.14 of the Election   Code.



                                              -608-
Hon. Joe Resweber,   page 4 (C-   122 ),    :



            The type of voting   machine or ballot-marking
     device   by which the voter indicates        his choice
     by punching slots     In a ballot   card, and the ballots
     are counted and tabulated      on electrfiic     data-
     processing    equipment,  is not authorized      for use          ,'
     in elections    in this State.

                                          Yours   very   truly,

                                          WAGGONER CARR
                                          Attorney General



                                          By                TimfceeL
                                                * Mary . Wall
                                                  Assistant

MKW:jh:mkh

APPROVED:
OPINION COMMITTEE

W. V. Geppert,   Chairman
Frank Booth
Bob Flowers
Ernest Fortenberry
John Reeves

APPROVEDFOR THE ATTORNEYGENWAL
BY: Stanton Stone




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