                            OF    TEXAS

                         AUSTIN     H.    TEXAS       />c/.




                         October 7,        1960

Honorable Donald E. Short                  Opinion No. WV-948
County Attorney
Wichita County                            Re:     Validity of using
Wichita Falls, Texas                              "pasters" in voting
                                                  for write-in candl-
                                                  dates.
Dear Hr. Short:
          Your request for an opinion on the above-captioned
question reads as follows:
          'I have had submitted to me a question of law
     which Is very important in view of the forthcoming
     election. Due to the recent death of Commissioner
     Haynes there will be several write-in candidates
     for'the office of County Commissioner, Precinct 4,
     Wichita County, Texas.
          "Several of these candidates have expressed
     the intention of having stickers with their names
     thereon printed so that the voter may paste the
     sticker on the ballot instead of writing In the
     candidate's name.
          "I am familiar with your opinion No. 0-6251
     cited In the annotations of Article 6.06,  Election
     Code, Vernon's Annotated Civil Statutes,  but I would
     like to know if your opinion is the same in view of
     Article 6.06 as amended by the 55th Legislature."
          Attorney General's Opinion o-6251 (1944) held that a
person may not vote for a write-in candidate by pasting onto the
ballot a sticker bearing the candidate's name instead of writing
in the name of the candidate. This holding was based on Article
2979, Revised Cfvll Statutes of 1925, which, after providing for
certification of the name of a new nominee to the election board
where a nominee had died or declined his nomination and the
vacancy in the nomination had been filled, contained the following
provision:
Honorable Donald E. Short, Page 2 (WW-948)


          "* * * If such declination or death occurs
     after the ballots are printed, or due notice of
     the name of the new nominee is received after such
     printing, the official board charged with the duty
     of furnishing election supplies shall prepare as
     many pasters bearing the name of the new nominee as
     there are official ballots, which shall be pasted
     over the name of the former nominee on the official
     ballot before the presiding judge of the precinct
     lndorses his name on the ballot for Identification.
     No
     and if otherwise used the names pasted shall not be
     counted." (Emphasis supplied.)
This provision, in identical language, now appears in Article
6.04 of the Election Code. You have asked in effect whether the
prohibition In this article was repealedlor modified by the
amendment to Article 6.06 in 1957 (Ch. 338, Acts of the 55th Leg.
1957, amending Articles 6.05, 6.06 and 13.09 of the Election Codej.
          The primary purpose of the 1957 amendatory act was to
eliminate the dual method for marking the ballot (placing an X
beside the name of the chosen candidate or scratching out the
names of all opposing candidates) which had been introduced in
the Election Code of 1951 and to restore the "scratch" method
as the only authorized method, The act also made certain other
changes In the provisions  relating to the form of the ballot and
the directions for marking it, these changes being mainly by way
of ularifylng or more accurately    stating existing provisions. It
did not contain a repealing clause,
          Article 6.06,   as amended, reads as follows:
          "Art. 6.06.     How to mark ballot
          "In all elections, general, special, or primary,
     the voter shall mark out the names of al.1candidates
     he does not wish to vote for. When party columns ap-
     pear on a ballot, a voter desiring to vote a straight
     ticket may do so by running a line with a pencil or
     pen through all other tickets on the official ballot,
     making a distinct marked line through all tickets not
     intended to be voted; and when he desires to vote a
     mixed ticket, he shall do so by running a line through
     the names of such candidates as he desires to vote
     against. If the name of the person for whom the voter
     wishes to vote Is not printed on the ballot, the voter
     shall mark through the names which appear on the ballot
     In that race and shall write in the name of the candl-
     date for whom he wishes to vote In a general election
Honorable Donald E. Short, page 3 (WW-948)


     in the write-in column under the appropriate office
     title, and in a primary or special election In an
     appropriate space under the title of the office.
          "The failure of a voter to mark his ballot In
     strict conformity with these directions shall not
     invalidate the ballot, and a ballot shall be counted
     in all races in which the Intention of the voter Is
     clearly ascertainable."
            The last paragraph of Article 6.06 was added by the
1957 amendment, and is the provision prompting your opinion re-
quest. This paragraph Is a legislative expression that the
provisions of the preceding paragraph are directory and that a
ballot shall be counted if the intention of the voter is clearly
asaertalnable although not marked "in strict conformity" with the
manner outlined in that article. Cf. Moore v. Plott,.206 S.W.
958 (Tex.Civ.App. 1918); Longorla‘v. Longorla, 278 S .W.2d 885
(Tex.Clv.App. 1955); and Trout v. Loe, w       .W.2d 191 (Tex.Civ.
APP. 1959).    In our opinion, the la& paragraph of Article 6.06
states a rule of construction to be applied to the provisions of
Article 6.06, and It does not authorize the counting of any vote
which has been cast in a manner expressly prohibited by some
other statute. It does not repeal or modify the provision In
Article 6.04 prohibiting the use of pasters and the counting
of names on pasters where their use Is not expressly authorized
in Article 6.04.    The holding in Opinion O-6251 is still a
correct statement of the law on the use of pasters in voting for
write-in candidates.
                            SUMMARY
          The rule of construction stated in the last
     paragraph of Article 6.06 of the Election Code, as
     amended in 1957, did not repeal or modify the pro-
     hibition against the use of pasters on official
     ballots and the counting of names on pasters where
     their use is not expressly authorized by Article 6.04
     of the Election Code. A voter Is not permitted to
     vote for a write-in candidate by pasting onto the
     ballot a sticker or paster bearlng the candidate's
     name, and votes cast for a write-in candidate in
     this manner cannot be counted.
                                 Yours   very   truly,

                                 WILL WILSON
                                 Attorney General of Texas
                                             -   -




Honorable Donald E. Short, Page 4 (WW-948)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
C. Dean Davis
J. C. Davis, Jr.
Riley Eugene Fletcher
Elmer McVey
REVIEWED FOR THE ATTORNEY aENERAL
BY:   Leonard Passmore
