                     November 1, 1968



Honorable Henry Wade                    Opinion No. M- 302
District Attorney, Dallas County
Dallas County Government Center         Rer   Interpretationof various
Dallas, Texas 75202                           sections of the Texae
                                              Election Code, Articles
                                              7.15, 7.07, 3.08 and
Dear Mr. Wade:                                3.09a.

           In your request for an opinion you state the follow-
ingr

            *We have this date received a letter
       from the Dallas County Elect4on Board asking
       that ws request your written opinion on nuinber-:
       ous questions which have arisen under the
       Texas Rlectlon Code, as followsr

       #Art. 7.15. Subdivision 13

       "1. Does the.Texaa Eiection Code permit the
       presence, either part-time or full time, of
       any other than the following pereone within
       100 Pt. of the polling place during the hours
       of 7rOO.A.M. through 7100 P.M. on Election Day?

       'A. Election itudge, Assistant Judge, and
       Clerks of the Rlection.
       lB. Poll Watchers.
       *c. Machine Repair personnel requested by
       the Election Judge for the purpose of re-
       pairing voting machines.
       *D. Voters.

       "Art, 7.15. Subdivieion~14
      .’




Hon. Henry Wade, page 2 m-302)



     l2.  Is it within the authority of County
     Co nmissfo nerCourt
                       s~   to assign personnel who
     are not officlale   ,of the Election aa in-
     structors in the operation of voting machines
     within the polling place during election hours
     for a general or special election7

     “Art. 3.0

     l3. Does the Conmiesioners' Court have au-
     thority to expend public funds in the sum of
     S?S,OO.per day plus expenses for a 'Voting
     Machine Consultant' when election officials
     are restrictedby law to maximum pay in the
     sum'of $1.25 per hour for their services7

     'Art. 7.15. Subdivision 19 (c).

     ‘4.  Are two election officials required in
     the delfv=   of ballot containers to central
     counting station?

     lArt. 7.15. Subdivision 20 (f)

     “5.  Is the presiding fudge required to re-
     main at the central counting station until
     the votes from his precinct have been com-
    ,pletelycounted and write-in votes tallied?

     WArt. 3.09a

     “6.  Ie,i$ within'the auihor’iW”of Co&ty
     Conmissioners'Court tb conduct'schools of
     instructionfor EleCtipn Officers under the
     direction of persona other than the County
     Clerk and without notice required by this
     Article?

     *Art. 7.07

     ‘7.   Is it within the purview of County Com-
     missioners~ Court authority to provide  election

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Hon. Henry Wade, page 3 (M-302)'



    supplies the provision of which Is charged
    by this Artfcle to the County'ElectlouBoard?
    Specifically,cznthe Court place orders for
    225,000 white ballot cards, .225,000yellow
    demonstrationqards, 1,400 ballot.boxes,write-
    in envelo8es,.servicefor'punching'overlay
    ndsks, printing of.officlal'candidatepages,
    preparation of precinctkits,.and ~computer
    programingwithout concurrence or participation
    by County Blection Board?''

     “Art.    7.15. -Subdivision20
        /'.                          :
    '*8. Under what foreseeable"circumstances is
    an improperly punched ballot'not valid for
    counting purposes7 Whose is the responsibility'
     for determinationof validity of irregular
    ballots?"

                      .Questions1 and.2

           The Election Code of Texasdoes not prohibit persons
from being within 100 feet of the polling places except persons
who are electioneeringor loitering. Articles 8.02 and 8.27,
Election Code. A public street or public building may be within
said 100 feet area. fn additionsto those named in your ques-
tion, the persons who may legally be in the poLling place are
 (1) a person tihoIs to'assista voter with a bodily infirmity
 (Article 7.14, Section 15, and Article 7.15, Subdivision 14,
 Election Code), (2) an interpreter (Article8.13a, Election
Code), and (3) persons admitted by the presidingjudge to
 preserve order (Article8.17; Election Code)~. Also, it is
 clearly within.the'intentof Article 7.15 that necessary per-
 sonnel, including instructorson.the proper use of the mechanical
 system adopted;may be permittedwithin the polling'place. Iiow-
 ever, while the special'instructors“may be present in the polling
 place, unless'these instructorsare election *officers,* they
 should only answer questions of the election officials and not
 directly instruct the'voter. Article 7.15, Subdivision 13.

                          Question 3

             The County CommissionersCourt necessarilyhas the
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&in. Henry Wade, page 4    w-303)



implied authority to.pay a reasonablesum for the employment
of a avoting.a\achlneconsult+" .toassist,in the installation,
operation and instruction .ofprooeduresof the voting equipment
and automatic tabulating equipment. Article 7.15, Subdivision
8, Election Code. It is,clear that~a Conmissioners Court has
(I
 . . .implied.authorityto do-what may be necessary in the ex-
ercise of the duties or powers expresely.conferred-onit. . . .a
15 Tex.Jur.26 266,.Counties,Sea. 37, and Cases there cited.

                      duestlon 4

          TWOauthorized election officialsare expressly re-
quired to deliver the ballot containersto the central counting
station by Article 7~.15,,~Subdivision
                                     19(c) of the Election Code.
There is an alternative method of deliveryhowever, provided by
Article 7:1,5,Subdivision'19.(d).

                      .Question5

          We find no provision in the Election Code requiring
the presiding judge to remain at the central counting station
until the votes from his precinct have been completely counted
and write-in votes tallied. We are not at liberty to construe
the Code so as to add such a requirement. .      Subdivislon
20(f) of Article 7.15 requires the presidingjudge to perform
ceftain duties after the votes have been tabulated in the can-
tral c.ouatingstation 80 he would have to return if he did
not remain while,the ballots were being counted.

                          Question 6

          Article 7.14, Section ii,. and Articie 7.15,'Sub-:
division.lO of the Election Code, ,authoriaethe authority
holding the election to cause to be held not less than 3
days before anyelection a public school of instructions on
the use of voting machines and electronicvoting systems,
respectively, for those who will conduct the election, such
schools to be open.to any interestedperson. Notice of the
meeting shall be given to the public press at.least 48 hours
before it is.to be held.



                              -1471-
Hon. Henry Wade; page 5 (W-302)


                  :    Question 7'

          Article 7.07 of the Election Code provides that the
County Blection Board shall provide the supplies necessary to
hold and conduct the election. .'TheCounty Blection.Board,not
the Comnission~rsCourt should order and providesthe supplies.
However, if the County Election Board fails to furnish,the nec-
essary supplies, the County ConmiasioneraCourt may legally
furnish same. A'rticle7.68 of the Election Code. It is the
duty of the Co+ssioners Court to provide the funds to pay
for the necessary supplies ordered by the Election Board.
          .                           .~
                      Question 8
                                   ',
          The first sentence IuQuestion 8 is so uncertain,
indefinite and speculativethat it cannot be answered. In
answer to your second sentence in'Question 8; you are advised
that the presidingjudge in each precinct has the responsibility
of determining.thevalidity of irregular ballots. (Article 3.02
and Article 7;15, Subdivision 19(a),'of the Eledtion Code) and,
in this connection,whether the.intent of the voter is "clearly
ascertainable*from the ballot. This.is a decision left to the
discretion of the election judge, and to the extent that such
intent is not clearly ascertainable, the irregularballot for
the race or races in questiorishould not be counted. .SeeAt-
torney General'OpinionNo. U-284 (1968). "Irregularballots*
within the meaning of Section 16 of Article 7.14 shall be
counted, hmever, and shall be'delivered witha copy of the
canvass to the County Clerk. Attorney.GeneralOpinion No.
WW-1325 (1962). ...                _'

                      SUMMARY              I
         .
           1.'~~
               Personswho are electioneeringor
      loitering are pt'ohibitea.frombeing-withiri
      100 feet of the pollxng piaces. Article
      8.02 and 8.27, Blection Code of Texas;

             2.It is within the intent of Article
      7.15 that necessary personnel, including
      instrudtorson the.proper use of the system


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Hon. Henry Wade, page 6 (H-303)



     adopted, may be permitted within the polling
     place. However, while the special instructors
     may be present in the polling place, unless
     they are election *officers,* they may only
     answer question8 of the election officials
     and .notdirectly instruct the voter. Article
     7.15, Subdivision13.

          3.  The County Commissioners Court has
     the ixplied authority to pay a reasonable.
     'sumto a *voting machine consultant.* Article
     7.15, Subdivision 8, Election Code of Texas.

          4.  'Rnoauthorized election officialsare
     required to deliver theYballot containersto
     the central counting station by Article 7.15,
     Subdivision19(c) 0f:the Election code.

          5’. The presiding judge is not required
     to remain at the central counting station
     until the votes from his precinct have been
     tabulated,but he has duties to perform after
     such tabulationhas.been completed and must
     then,be at the central counting rtation. Ar-
     ticle 7.15, Section 20(f) of the ElectionCode.

          6.    The
                  County CoamisrionerrCourt haa
     the authority to conduct schools of instruc-
     tion for election officers. Article 7.14, Sec-
     tion 11, and Article 7.15, Subdivision10,
     Election Code.

          7.  The County Blection Board is author-
     ised to provide the supplies necessary to hold
     and conduct the election. Article 7.07 of the
     Election Code. If the County Blection Board
     fails to furnish such supplies, the County
     CommissionersCourt may furnish same. Article
     7.08 of the Election Code.~

          8.  The presiding judge in each precinct
     has the responsibility of determiningthe

                            -1473-
Hon. Henry Wade, page 7 W-302)



    validity of irregularballots. Article 3.02
    and Article 7.15, Subdivision 19(a) of the
    Election Code.




          .
Prepared by Jack Sparks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Reeves
Bill Craig
Alfred Walker
John Grace

A. J. CARURBI, JR.
Executive Assistant




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