                   December 12, 1961

Honorable J. W. Edgar         Opinion No. ~~-1218
Commissioner of Education
Texas Education Agency       Re:   Whether voting machines must
Austin, Texas                      be used in school elections,
                                   where the commissioners court
                                   of a county has adopted the
                                   use of voting machines as
                                   the method of holding elec-
Dear Mr. Edgar:                    tions in that county.
          You have requested an opinion of this office on the
following question:
               "Where the commissioners court
          of a county purchases voting machines
          and subsequently passes a resolution
          requiring the usage of such machines
          In all elections in such county, is
          a school district board required to
          use such voting machines in school
          trustee elections, In all school dis-
          trict elections?"
          Your question requires an examination of Section 3
of Article 7.14 of the Election Code, Vernon's Civil Statutes,
which reads as follows:
                ?The Commissioners Court of
           any county in the State of Texas
           may adopt for use In elections and
           primary elections in at least three
         ‘(3)  of the larger voting precincts
           in voting strength in said 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
           voting precincts in the county as
           it may deem advisable, and there-
           upon such voting machine shall be
           used at any and all elections and
           primary elections, municipal, county,
           district, or State held in that
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                                                                          C
Honorable J. W. Edgar, page 2 @w-1218)


         county or any part thereof, designated
         for voting, registering and counting
         votes cast at such elections and primary
         elections, all school and bond elections
         also shall be conducted by the use of
         voting machines in those counties or
         parts thereof where such machines have
         been adopted, where the lawnspecifically
         makes their use obligatory.
          This statute does not give the commissioners court
the authority to determine the types of elections in which
voting machines shall be used. It merely gives the commis-
sioners court the authority to designate the voting precincts
in which voting machines are adopted for use, and the statute
itself provides in what elections held within the designated
territory the use of voting machines is mandatory. The order
upon which your opinion request is based reads as follows:
               "It is ordered by the Commissioners'
          Court of Cameron County that the voting
          machine method of holding elections in
          Cameron County be and it Is hereby adopted."
This we interpret as being a county-wide adoption of voting
machines for use in all election precincts of Cameron County,
rather than an unauthorized attempt on the part of the
Commissioners Court of Cameron County .to require their use
in all elections held within the county. We must look to
Section 3 of Article 7.14 and other pertinent statutes to
determine whether their use in school elections held within
Cameron County is now mandatory.
          Section 3 of Article 7.14 provides that voting
machines "shall be used at any and all elections and primary
elections, municipal, county, district, or State" held within
the precincts for which voting machines have been adopted, and
further provides that "all school and bond elections also
shall be conducted by the use of voting machines in those
counties or parts thereof where such machines have been
adopted, where the law specifically makes their use obligatory."
(Emohasls suonlied.) While this statute in itself requires the
use-of voting-machines in the first-quoted types of elections,
Honorable J. W. Edgar, page j (~~-1.218)


we construe it as requiring their use in school elections
only where some other law  specifically makes their use
obligatory."1
          There is no provision in the school laws or the
Election Code which would prohibit a school district from
ccnducting its elections with available voting machines
rented from the county, if the district chose to do so, or
which would invalidate an election so held even though
their use was not mandatory in that election. However,
we can find no statute which makes the use of voting ma-
chines obligatory in school elections, unless Section la
of Article 27&c, Vernon's Civil Statutes, requires their
use for absentee voting In school trustee elections. This
statute, which was enacted by Chapter 440, Acts of the
57th Legislature, Regular Session, 1961, reads as follows:
               "Section la. In all elections
          for the office of county school trus-
          tees, or trustees of any school dis-
          trict however created or designated,
          in counties where voting machines
          have been adopted, the authority
          charged with holding an election in
          any such county or school district
          shall, b;rproper resolution or order,
          provide that voting machines shall be
          used for the casting of absentee votes
          at such elections, in accordance with
          the provisions of Article 7.14, Section
          7, of the Acts of 1951, 52nd Legislature,



          'This language has not been construed by the Texas
courts. In Anderson v. Crow, 260 S.W.2d 227, 230 (Civ.App.
1953), involving an election contest attacking the legality
of a school bond election held in Bexar County, at which
voting machines had been used, for failure to maintain a
voting place in each election precinct in the district, the
court observed that the school district had been advised that
there was some question of the legality of an election in
Bexar County conducted without the use of voting machines
(the Commissioners Court of Bexar County having adopted voting
machines for use in that county), but the court did not indi-
cate any opinion on whether their use was required in school
elections held in c,ountieswhich had adopted voting machines.
Honorable J. W. Edgar, page 4 (~~-1218)


          Chapter 492, known as the Election Code
          of the State of Texas."
To arrive at the intent of this statute, it is necessary to
review the law In effect at the time of its enactment.
          Section 7 of Article 7.14, Election Code, contains
the following provisions, which have remained unchanged
since 1939:
               "Sec. 7.  Absentee Voting. In
          counties in which voting machines are
          adopted for use, the authority charged
          with holding an election shall within
          Its discretion determine by proper
          resolution and/or order whether or not
          votlng,machines shall be used for the
          casting of absentee votes at such elec-
          tion, and if it be determined by such
          authority that voting machines shall
          be used for the casting of absentee
          votes at such election, a voting machine
          or machines shall be placed in the
          county clerk's office, If an election
          held at the expense of the county, or
          if a primary election, and if a city
          or town election in the office of the
          city or town secretary and if a school
          district or other election, in a public
          place designated within the boundaries
          of such district or election, * * *.
          * * * Should the authority charged with
          holding an election determine by such
          resolution as above provided, that ab-
          sentee votes cast at such election be
          cast by a paper ballot, then, and in
          such event, the authority charged with
          holding such election shall provide a
          ballot for the casting of absentee votes
          as prescribed and provided by the general
          laws applicable to elections and to ab-
          sentee voting, and those entitled under
          the law shall cast their vote by such
          ballot under the laws applicable to ab-
          sentee voting, + * * .'
This statute, it is seen, gives the authority holding an
election the discretion to determine whether voting machines
or paper ballots shall be used for absentee voting.
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                    Honorable J. W. Edgar, page 5 (~14-1218)


                              In 1957 the Legislature passed a law relating to
                    elections for county school trustees and trustees of school
                    districts (Chapter 262 Acts of the 55th Legislature, 1957
                    codified as Article 2745~ in Vernon's Texas Civil Statutesj,
                    which was amended in 1959 by Chapter 320, Acts of the 56th
                    Legislature. Each of these enactments contained the follow-
                    ing provisions:
                                   " * * * it shall be the duty of
                              the county clerk to conduct the ab-
                              sentee voting in the election in ac-
                              cordance with the general laws relating
                              to absentee voting. Paper ballots shall
                              be used for absentee voting in all such
                              elections, including elections in dis-
                              tricts where voting machines are used
                              at regular polling places."
                    The effect of these enactments was to revoke, for school trustee
                    elections, the discretion conferred by Section 7 of Article 7.14,
                    Election Code, and to maitethe use of paper ballots mandatory in
                    absentee voting in those eiections.
                              Under Section 7 of Article 7.14, the absentee voting
                    in a school election, when conducted on voting machines, was
                    "in a public place within the boundaries of the school dis-
                    trict.   By virtue of the 1957 and 1959 enactments,the absentee
                    voting in school trustee elections had to be conducted in the
                    office of the county c.lerk (Subdivision 3 of Article 5.05,
                    Election Code), except in those instances where the county
                    clerk appointed a deputy in towns having a population of 4,000
                    Inhabitants or more as authorized in Subdivision 14 of Article
                    5.05.
                              Against this background of existing law, the Legis-
                    lature in 1961 amended Article 2745~ by adding Section la,
                    quoted above. The emergency clause of the 1961 act stated
                    that "the fact that existing laws require those desiring to
                    cast absentee votes in school trustee elections to travel to
                    the county seat and cast such votes at the office of the county
                    clerk, results in great inconvenience to the voter, loss of
                    time, and expense, * * * creates an emergency, * * *.I1 The
                    body of the act provides that the authority charged with holding
                    the trustee election "shall, by prcpar resolution or order,
                    provide that voting machines shal1 be used for casting of ab-
                    sentee votes at such elections, in accordance with the provisions
                    of Article 7.14, Section 7" of the Election Code. (Emphasis
                    supplied.) Our problem is to determine whether the legislative
                                                                       .   T




.,
     Honorable J. W. Edgar, page 6 (~~-1218)


     intent was merely to restore the law as it had existed prior
     to 1957, which gave the authority holding the election the
     discretion to decide whether absentee voting was to be by
     voting machines or by paper ballots, or whether the intent
     was to make the use of voting machines mandatory in these
     elections.
               While the word 'shall" ordinarily is of mandatory
     effect, the words "shall" and "may" are frequently used inter-
     changeably, and the use of one or the other of these words in
     a statute is not conclusive of the question whether it should
     be construed as mandatory or discretionary. 39 Tex.Jur.,
     Statutes, Sec. 15, and cases cited. If the Legislature had
     intended to make the use of voting machines mandatory and to
     deny to the authority holding the election any discretion in
     the matter, the provision for adoption of a resolution or
     order by the authority holding the election would have been
     unnecessary, as the statute itself would have required the
     use of voting machines and adoption of a resolution to that
     effect would have been a superfluous act. Moreover, the fact
     that this statute was enacted as an amendment to Article 2745~
     and was limited to trustee elections further points to an
     intent merely to undo what had been done in Article 274%. It
     does not undertake to restrict the discretion of a school
     board to determine whether voting machines or paper ballots
     shall be used for absentee voting in other types of elections
     held by school districts, such as bond elections and consolida-
     tion elections. If the Legislature had intended to make the
     use of voting machines mandatory for absentee voting in school
     trustee elections, It reasonably could have been expected to
     make their use mandatory in all school elections, since the
     voters in districts which did not include the county seat
     would be subjected to the same inconvenience, loss of time, and
     expense in traveling to the county seat to cast their absentee
     ballots in other types of school elections if the school board
     chose to use paper ballots. We think the intent of the statute
     was to leave the matter to the discretion of the school board,
     as provided in Section 7 of Article 7.14, and to rely on their
     judgment to adopt the method best suited to the particular
     district in the light of its geographical location and other
     factors which would dictate the wisdom of choosing the one or
     the other method.
               The interpretation we give to Section la of Article
     2745~ is further borne out by the title of the act, which may
     be considered as a guide showing the legislative intend? 39
     Tex.Jur., Statutes, Sec. 121, and cases cited. The title
     states that it is an act 'to add a provision authorizing the
Honorable J. W. Edgar, page 7 (w-1218)


use of voting machines for absentee voting for school trus-
tees in counties where voting machines have been adopted."
(Emphasis supplied.) The use of the word "authorizing"
guggests that the statute is permissive, since the word
 requiring" would have been the more appropriate language
to express an intent to.make the use of voting machines
mandatory.
          In conclusion, it is our opinion that the use of
voting machines is not obligatory either in school trustee
elections or in other school district elections held within
counties which have adopted voting machines, and that the
school district board has the discretion to determine whether
voting machines or paper ballots shall be used in elections
ordered by the board.
                           SUMMARY
                 The use of voting machines is not
            obligatory in school elections held
            within counties which have adopted
            voting machines, and the school dis-
            trict board has the discretion to
            determine whether voting machines
            or paper ballots shall be used in
            elections ordered by the board.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




MKW:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Marvin Thomas
Morgan Nesbitt
Robert Lewis
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
