Honorable Henry Wade                  Opinion No. C-117
District Attorney
Dallas County                        Re:   Whether, in counties
Dallas, Texas                              which have adopted
                                           voting machlnes,'use of
                                           the ,machlnea Is mandatory
                                           Sn primary eIectlons,,;and
                                           related question.
Dear Sir:
          For a number of years, voting machines have been
adopted for use in elections in Dallaa County, as provided
in Section'3 of Article 7.14 of Vernon's Texas Election Code,
You have requested ua to render an opinion on the following
questions:
                 "1. Is It mandatory for both parties
            (Democratic and Republican) In a primary
            election to use voting machines?
                 "2. If It Is mandatory to use voting
            machines, Is It mandatory for Dallas County
            to furnish the voting machines?"
          Section 3 of Article 7.14, supra, as enacted In
1951, read as follows:
                 "Sec. 3. Adoption by Commissioners Court.
            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 ap-
            proved 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 thereupon. such voting
            machine shall be used at any and all elections
            and primary elections, municipal, county, dls-
            trlct or State held In that county or any part
            thereof, designated for voting, registering



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Honorable Henry Wade, page 2 (C-117 )


          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 law specifically
          makes their use obligatory."
          This statute was amended at the regular session of
the 58th Legislature this year, by the enactment of Senate
Bill 61, which will take effect on August 23, 1963. The
amendments to Article 7.14 were part of the recommendations
of the Election Law,Study Committee created by S.C.R. No. 30
of the 57th Legislature. The records of the committee show
that It considered four suggestions for the amendment of Sec-
tion 3 of Article 7.14, as follows: (1) clarify whether, or
when, use of voting machines is mandatory In "school and bond
elections"; (2) provide a solution for the situation where more
than one election Is to be held on the same day or within the
period that the machines are required to remain locked after
an election, and the county does not own enough machines for
both elections; (3) in elections for which voting machines
are not mandatory, provide that the election may be conducted
on voting machines, at the option of the authority holdln the
election, If the county Is able to furnish the machines; ?4)
clarify the authority of the commissioners court to discontinue
use of voting machines after they have been adopted.
          The problem noted In the second suggestion had arisen
most frequently during the past decade under the provision mak-
ing use of voting machines mandatory In primary elections, in
the years when both the Democratic Party and the Republican
Party were holding primaries. With this background, the com-
mittee recommended the following amendment, which was passed
by the Legislature without change:
               “sec. 3. Adoption by commissioners court.
          The Commissioners qourt of any county In the
          Btate 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 ma-
          chine 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 adviaable. The court at any time
          may rescind or modify Its previous order or or-
          ders adopting voting machines, and may discontinue
          use of voting machlnes altogether, but use of vot-
          ing machines shall be retained in at least three



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Honorable Henry Wade, page 3 (C- 117,)



          of the larger election precincts 'if retained
          for use in any~part of the county.
              "Voting machines shall be used at the blen-
         nlal general elections for state and county offi-
         cers In all precincts In which they have been
         adopted by the commissioners court. In all other
         elections, general, special, or primary, the au-
         thority holding the election shall determine wlth-
         In Its discretion whether the voting In such
         precincts for the particular election shall be
         by use of voting machines or paper ballots, and
         may provide for use of either voting machines or
         paper ballots In any or all of the precincts for
         which voting machines have been adopted. The
         determination shall be made by the commissioners
         court in elections held at the expense of the
         county, by the governing body of the munlclpal-
         .lty or political subdlvlslon In elections held,
         by munlclpalltles or other political subdivisions,
         and by the county executive committee of the po-
         litical party In primary elections."
          Under the clear provisions of Section 3 as amended,
use of voting machines Is not mandatory In primary elections.
Accordingly, as of the effective date of the amendment your
first question is answered in the negative.
          Your second question Is whether It 1s mandatory for
Dallas County to furnish the voting machines for the primary
elections If use of the machines Is mandatory. From your brief
It Is apparent that you are also interested In whether It Is
the mandatory duty'of a county to provide a sufficient number
of voting machines to comply with the request of all political
parties for use In the primary elections If their use Is not
mandatory. This is the question which we~shall answer.
          Since its original enactment in 1930, it has always
been within the contemplation of the Voting Machine Law that
the county would permit its machines to be used by other pollt-
loal:!subdivisions and political parties in their elections.
See Sets. 5, 6, I7 and 21 of Art. 7.14. Section 6 provides:
              "sec. 6. Payment forVotIng Machines.
         The County Commissioners Court shall provide
         for the payment of voting machines to be used
         In such county In such manner as the Court
         may deem for the best Interest of the county.
               Such voting machines shall be the ro-
         pert; of the county paying for same andP or

                            -583-
Honorable Henry Wade, page 4 (C-117 )


          renting same, subject to the terms of
          the rental contract, and when used in
          any election or primary election, the
          aounty is not charged by law with the
          holding of, such machines shall be
          leased to the authorities charged with
          holding such election or primary elec-
          tion, and payment shall be received by
          the county at such leaae price per ma-
          chine for each election day such ma-
          chines are used In an election as the
          Commlssloners Court shall fix, but not
          to exceed ten per cent (10%) of the
          original cost of such voting machine,
          as may be required to hold each elec-
          tion or primary election. . . .'
This section regulates the terms on which the county may permit
use of its machines but does not make It mandatory for the coun-
ty to furnish the machines. Section 5 of Article 7.14 pre-
scribes the duty of the county to provide machines after adop-
tion. It requires the commissioners court to provide "one or
more approved voting machines In completed working order" for
each precinct designated for their use. In the light of Sec-
tion 3, as amended, It Is the duty of the commissioners court
to provide the number of machines which will be required for
the efficient and orderly conduct of the general election In
the precincts designated for their use.  We do not find any
provision in the law which requires the county to provide ma-
chines In excess of that number.
          The problem of having an inadequate number of ma-
chines to run two elections on the same day was aquarely
before the committee which drafted the amendments to Article
7.14. It undertook to solve the problem by providing that
their use would be discretionary rather than mandatory In all
elections except the general election for state and county
officers. This would be no solution at all if the discretion
lodged in the authorities holding the elections could result
in forcing the county to provide machines whloh It did not
have. In the light of Its background, the only reasonable ln-
terpretatlon of the amendment la that the discretion in de-
ciding to use voting machines will be limited by the avall-
ability of machines. We are of the opinion that the county 1s
not required to furnish voting machines to a political party
beyond the number which the county will have available for
use by the party on the day of the primary election.




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Honorable Henry Wade, Page 5 (C-117 )


                          SUMMARY
                In counties which have adopted voting
           machines, use of the machines will not be
           mandatory in primary elections efter Au-
           gust 2,3,'1963,the effebtlve 'date of..are-
           cent amendment to Section 3 of Article 7.14,
           Vernon's Texas Election Code.
                Where a political party has decided to
           use voting machines In Its primary election,
           the county Is not required to furnish ma-
           chines for use in the primary In excess of
           the number of machines which It will have
           avllable on the day of the election.
                                    Yours very truly,

                                    WAGGONER CARR
                                    Attorney General



                                         Mary K. Wall
                                         Assistant

MKW:jh
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Jerry Brock
Nicholas A. Irsfeld
Paul Phy
Joseph Trlmble
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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