               EATKDRNEP            GENERAL
                       OF-XAS



                       May 24, 1962


Honorable Dwayne A. Overstreet    Opinion No. WW-1339
County Attorney
Hardin County Courthouse          Re:   Whether an official or
Kountze, Texas                          worker at the polls in a
                                        primary election may be
                                        permitted to leave the
                                        polling place for the pur-
                                        pose of eating or for
                                        other purposes, and upon
                                        return continue their
Dear Mr. Overstreet:                    duties at the polls.
     Your letter requesting an opinion reads as follows:
            "This office has been requested to
         furnish to the election judges in this
         County an opinion concerning whether or
         not an official or worker at the polls in
         the Democratic Primary may be permitted
         to leave the polls for the purpose of
         eating or any other purpose and returning
         to the polls and continuing their duty.
            "May the counters of the absentee votes
         in the Democratic Primary be permitted to
         leave the place of counting in order that
         they may vote at their regular voting place?
            "Question Number One arose as the re-
         sult of certain workers at the Democratic
         Primary place of polling in Kountze, Texas
         on May 5, 1962, being permitted to leave the
         polls and go down town to eat lunch, this
         having been done in a prudent manner and
         the election process not having been either
         stopped or delayed.
            "Question Number Two arose as a result
         of four persons who were counting absen-
         tee ballots at the Office of the County
         Clerk of Hardin County, Texas, not being
         allowed to go to the Kountze box at the
         place of polling, whicn was their proper
         place to vote. They were denied the right
Honorable Dwayne A. Overstreet, Page 2       Opinion No. WW-1339


         to leave the place of counting of the
         absentee ballots and were, therefore,
         denied the right to vote on the day of
         the election."
     Article 13.05, Texas Election Code, reads as follows:
           "All the precinct primary elections
        of a party shall be conducted by a pre-
        siding judge, to be appointed by a chair-
        man of the county executive committee of
        the party, with the assistance and approval
        of at least a majority of the members of
        the county executive committee. Such pre-
        siding judge shall select an associate
        judge and a clerk to assist in conducting
        the election; additional clerks may be
        appointed under such rules as may be
        made b the county executive committee.
        Two (2Y supervisors may be chosen by any
        five (5) or one-fifth (l/5) of the can-
        didates, which ever is the lesser number,,
        whose names appear upon the primary bal-
        lot, who, with the judges and clerks,
        shall take the oath required of such
        officers in general elections; such
        supervisors shall be paid by those re-
        questing the supervisors and they shall
        perform such duties as provided in the
        law for general elections."
      Subdivision 6 of Art. 5.05, Texas Election Code, provides
in part as follows:
           "On the day of the election the
        jacket envelopes, containing the carrier
        envelopes which have been received to-
        gether with the applications for absen-
        tee ballots and accompanying papers,
        shall be delivered by the county clerk
        to a special canvassing board of three
        (3) or more members named by the authority
        which is authorized by law to name the
        presiding judges of that election. The
        clerk shall deliver the envelopes to the
        canvassing board at such hour as the
        board shall direct, but not later than
        1:00 p.m. . . .'
           (1
            . . .
Honorable Dwayne A. Overstreet, Page 3       Opinion No. WW-1339


            "At such time as the presiding judge
         shall direct, the absentee ballot box
         shall be opened. . .
           "The special canvassing board shall
        possess the same qualifications, be paid
        the same wage, and be subject to the same
        laws and penalties as regular election
        judges. . , .' L Emphasis added._/
      Art. 13.22, Texas Election Code, provides in part:
            "The,same precautions required by law
         to secure the purity of a ballot box in
         general elections, in regard to ballot
         boxes, locking the ballot boxes, sealing
         the same, watchful care of them, . . .
         shall be observed in all primary elec-
         tions." [Emphasis added.2
      Thus we see that for each voting precinct, the presiding
judge is appointed by the County Chairman, with the approval
of a majority of the County Executive Committee. The presiding
judge at each voting precinct then chooses his associate judge
and one or more clerks as allowed by the County Executive Com-
mittee. If any supervisors selected by the candidates are
present, such supervisors take the same oath of office as the
judges and clerks, and are election officials also.
      The special canvassing board for absentee ballots, is
composed of three or more members who are also appointed by the
County Chairman, with the approval of a majority of the County
Executive Committee. All members of the special canvassing
board apparently are judges, and one of them is named the pre-
siding judge. The special canvassing board, as a whole, shall,
name the hour at which the absentee ba'l.otsare to be delivered
to them by the clerk, but not later than 1:00 p.m.
      Without elaborating, it is sufficient to state that
there are duties imposed upon the presiding judge of the elec-
tion precinct, certain duties imposed upon all judges, and
upon all election officials, whether judges, clerks or super-
visors. These duties are found throughout the Election Code.
This accounts, in part, for the number of election officials
appointed for each election precinct. Other reasons for the
number of election officials may be found in Art. 13.22, supra.
By providing for the appointment oI'one official as presiding
judge, and permitting him to name his associate judge and
clerks, Art. 13.05; by requiring the presiding judge to draw
the supplies for the election, Art. 13.19; and to return the
Honorable Dwayne A. Overstreet, Page 4       Opinion No. WW-1339


ballot boxes to the clerk after the election is over, Art.
13.23; the Election Code placed the primary obligation on the
presiding judge, and with such obligation goes the necessary
power to manage the election at his voting precinct, not
inconsistent with the law.
      We find nothing in the Election Code which would provide
for the number of judges and clerks to be on duty at the pol-
ling place at any one time on election day. It would appear to
us that there should be on duty at any given time sufficient
judges and clerks or judge and clerk to carry out the duties
imposed by the Election Code. What this number is will vary
from precinct to precinct, depending not only on the duties
imposes on judges and clerks, respectively, but on the number
of potential voters in any given precinct. No doubt the Coun-
ty Executive Committee takes this into consideration in decid-
ing how many clerks to allot to each precinct. We know of one
instance when two jud es might be required to be present at
the same time. Art. 8 .13, Election Code, provides that where
a voter is unable, due to bodily infirmity, to mark his own
ballot, two judges shall assist him, after the judges have
taken an oath to confine themselves to answering his questions,
etc. There is another method whereby such a voter may vote,
which does not require the assistance of two judges. But even
in a case where the two judges must assist the voter, it does
not seem to be any violation of the Election Code to ask the
voter to wait a few minutes until one of the judges returns
from lunch. In no case should both judges be absent at the
same time. What we have just said applies to the situation
from the time the polls open at 7:00 a.m. and until they close
at 7~00 p.m. After the polls have closed, and counting and
tabulating of votes is under way, and returns are to be pre-
pared, all officials ought to be present to the fullest ex-
tent practicable, so as to not give any candidate any excuse
to charge errors or irregularities due to insufficient person-
nel being present to carry out those duties.
      In the case of the special canvassing board for absentee
ballots, we feel that the situation presented in your letter
would never have arisen, if the board had deferred its meeting
until around 8:OO or 9:OO a.m. Then all members of the board
would have had time to go to the polls to vote, before coming
to the courthouse to sit as a canvassing board for absentee
ballots. The board is not required to meet before 1:00 p.m.
on election day. But, in any event, we do feel that it would
not be prudent for any member of the board to absent himself,
while the envelopes are being opened, votes challenged, votes
counted, and returns made. The special canvassing board for
absentee ballots i.sin a different situation from the judges
     .    -



Honorable Dwayne A. Overstreet, Page 5       Opinion No. WW-1339


and clerks of the regular polling places. From the moment the
special canvassing board convenes and receives the absentee
ballots from the clerk, they are engaged in opening envelopes,
hearing challenges, counting votes, and tabulating returns.
      In the final analysis, the presiding judge of each voting
precinct or of the special canvassing board for absentee ballots
must make the decision as to whether or not circumstances affect-
ing his precinct or the board, including the duties to be per-
formed, the judges and clerks available, and the number of poten-
tial voters in the precinct, will make it possible for him to
let the election officials at his precinct leave the polling
place to eat or for any other necessary purpose. The presiding
judge is the manager of the election at his precinct; he has
the principal burden on his shoulders. All reasonable rules
governing the election officials for that precinct which the
presiding judge may issue, not inconsistent with law, ought to
be followed by those he has named to assist him. If his rules
are too oppressive for anyone to work with him, he may find
himself in the predicament of trying to hold an election with-
out any help.
                       SUMMARY
            The presiding judge at any voting precinct
      is the manager of the election at his precinct.
      There is nothing in the Election Code which would
      prevent the presiding judge from permitting judges
      and clerks at his election precinct to leave the
      polling place to eat or for other necessary pur-
      poses, so long as there are sufficient election
      personnel on duty to take care of the voters, and
      to give watchful care of the ballot boxes.
            The special canvassing board for absentee
      ballots should set its time of convening not later
      than 1:00 p.m. so that the judges who are members
      of such board will have time to vote at their res-
      pective precincts before convening as a board.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas


                              By:-@%      +*
                                  Riley Eugene Fletcher
                                  Assistant
REF/jp
                                              .



Honorable Dwayne A. Overstreet, Page 6   Opinion No. WW-1339


APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Joseph Trimble
Henry G. Braswell
Tom Hunter
REVIEWED FOR THE ATTORNEY GENERAL
By: Haughton Brownlee, Jr.
