,




                                     The Attorney’ General of Texas

    JIM MATTOX                                          April 4, 1986
    Attorney General


    Supreme Court Building           Honorable Clint H~.ckuey              Opinion No. JM-467
    P. 0. BOX 12548                  Chairman
    Austln, TX. 73711- 2543          Committee on Elections                Re: Location of polling places
    512/475-2501
                                     Texas Rouse of ReFresentatlves        and residency requirements for
    Telex 9101874.1387
    Telecopier   512/4750286
                                     P.O. Box 2910                         election judges in city council
                                     Austin, Texas   78769                 election
    714 Jackson, Suite 700           Dear Representative Hackney:
    Dallas, TX. 75202.4506
    21417424944
                                          You ask two questions about an election for members of the Alvin
                                     City Council scheduled for April 5, 1986. The city is under a federal
    4824 Alberta   Ave.. Suite IS0   court order to ceme at-large election of city council members and
    El Paso. TX. 79905.2793          adopt a plan that includes the election of five city council members
    915/533-3484                     by district and mro at large. The city is phasing in the new plan.
                                     You inform us that the city council has named election judges who
    1001 Texas. Suite 700            not reside in the diistrictto which they are assigned. Moreover, the
    Houston, TX. 770029111           city has not established a'polling place in each district which will
    713l223.5886                     cl&t a city councilman.

                                         You request an opinion on the following questions:
    805 Broadway, Suite 312
    Lubbock, TX. 79401-3479
    806/747-5235                                 1. In a municipal election, does the election
                                              of a couucil member from a district require that
                                              the polling place be located within the district?
    4309 N. Tenth, Suite S
    McAllen, TX. 78501-1885
    512lSS2-4547                                 2. In a municipal election, does the law
                                              require t:hat the election judge be a registered
                                              voter :iiving within the boundaries of the
    200 Main Plaza, Suite 400
                                              district?
    San Antonio, TX. 78205.2797
    51212254191
                                          We cannot pn>vide an exhaustive answer to your first question.
                                     Whether the polling places were designated for the April 5 election
    An Equal OpportunityI            compliance with the Election Code depends in part upon the facts.
    Affirmative Action Employer      Some facts have been submitted to US, but an Attorney General Opinion
                                     may not make the .additional fact findings necessary to a complete
                                     answer to this quc:stlon. Moreover, the requirements of the Federal
                                     Voting Rights Act, .42U.S.C. 61971, et seq., are also relevant to your
                                     inquiry. The requirements of this act may in some cases prevail over
                                     the provisions of state law. We lack sufficient information about
                                     court orders issued under the Voting.Rights Law that would modify the
                                     application of Election Code provisions to this election. See, l .g.,
                                     Attorney General Opinion MW-350 (1981). However, the court order
                                     which the city is subject will.control its duty with respect to this
Honorable Clint Eackuey - Pape 2           (J-M-467)




particular election. We w:X discuss the relevant       provisions of law
to provide some guidance to you.

     With this caveat. we 'turn to your first question. Under the
Election Code, the precinct, and not the city election district, is
the geographical unit withi,nwhich a polling place is established. A
single polling place is to be located within each precinct. Elec.
Code 543.001. The city comcil has authority to determine where the
polling place will be located within the precinct. Elec. Code
143.004; see Elec. Code §1.005(13) (defining "political subdivision"
to iuclud=   city).

     The city council also has some authority to establish election
precincts for city council elections. but the city's election pre-
cincts "may uot divide a county election precinct except as necessary
to follow the city's bomiary."      Elec. Code 042.061(c). Thus, the
city's election precincts arc virtually determined by the county's
election precincts established pursuant to the Election Code. -See
Attorney General Opinion H-2:32 (1974).

     The commissioners court is to divide the county into "compact and
contiguous" election precincts. Elec. Code 142.001. Section 42.005
of the code establishes rho relationship betweeu county election pre-
cincts and single member districts for the election of city qouucil-
mm:

             (a) A county election precinct way Dot contain
          territory from mre than one of each of the fol-
          lowing types of territorial units:

             (1)         a comissioners precinct;

             (2) a justice -precinct;

             (3)         a congressional district;

             (4) a state representative district;

             (5) a state seaatorlal district;

             (6) a ward in a city with a population of
                 10,000 or:=;    or

             (7) a State Board of Education district.

             .   .   .    .

             (c) In this section, 'ward' means a territorial
          unit of a city, regardless of its designation under




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Honorable Clint Hackney - L'age3    (JM-467)




                     from which a aember of the city's gover-
          other law. --
          ning body is elected by only the voters residing in
          the territorial &t
                           --*   (Emphasis added).

Elec. Code 42.005.

     The Election Code aulhorizes the commissioners court to change
the boundaries of county Ktection districts to make them conform to
city election districts. See Elec. Code §S42.031-42.035. You have
not informed us whether tlG?county has attempted to change election
precinct boundaries to accommodate the new city election districts, or
whether there was sufficient time between the issuance of the court
order and the April 5 electIon date to fulfill the statutory require-
ments for changing a boundary. -See Elec. Code 542.003(b).

     Moreover, the Federal Voting Rights Act, 42 U.S.C. 91971 et seq.,
might prevent the commissioners court from complying with Election
Code deadlines in changing an election precinct boundary to conform to
a new city election district. Changes in election precinct boundaries
and in the locationsof polling places are subject to praclearance by
the Attorney General of the United States. 42 U.S.C. 81973c; Perkins
v. Matthews, 400 U.S. 379, 380-83 (1971); County Council of Sumter
County, South Carolina v. United States, 555 F.Supp. 694 (D.C.D.C.
1983); Eeggins v. City of-Dallas, 469 F.Supp. 739, 740 (N.D. Texas
1979); see Attorney General Opinion MW-350 (1981). See also Acts
1985, 69thLeg., ch. 340, at 2589 (county election precincts are not
required to conform to &ty      election districts if compliance is
impracticable because of a federal court order).

     To suamlarise, author,ity rests with the county commissioners
court, and not the city council, to redraw election precinct lines to
conform with city wards 01: election districts. See Attorney General
Opinion E-282 (1974). We cannot determine whxer         the statutes
discussed prevent or excuss the county from redrawing the precinct
lines in time for the April 5 election; the application of those
statutes to a specific case requires the investigation and resolution
of fact questions.

     The city council Is required to locate the polling place within
the established election ,precinct, and voters are required to vote
within the precinct in which they reside.        Elec. Code 111.003;
Harrison v. Jay, 271 S.W,:!d 388, 389 (Tex. 1954). Election laws,
however, are construed as directory in absence of fraud or a mandatory
provision which requires voiding a ballot for failure to comply with a
statute. Thomas v. Groebl. 212 S.W.2d 625, 630-31 (Tex. 1948);
Statler v. Fetzer, 630 S.lr2d 782. 783-84 (Tex. Civ. App. - Houston
‘[lst Dist.] 1982, writ dism'd). Election law provisions which relate
to voters are more readily construed as directory than those relating
to candidates. Branaum v. Patrick, 643 S.W.2d 745, 749 (Tex. Civ.
APP. - San Antonio 1982, ntrvrit).



                              p.~.2139
Honorable Clint Hackney - I'age4      (JM-467)




     The courts have in nest cases strictly construed the section
11.003 reauirement that al:L voters vote in the orccinct    in which thev
reside. &rrison v. Jay, ~271 S.W.2d 388, 389' (Tax. 1954); Greater
                                                         596, S.W.2d 597,
                                                      uniga v. Almaraz,
514 S.W.2d 331. 334 (Tex. Civ. App. - San Antonio 1974. no writ).
There are,  however. exceptions to the strict construction of this
provision. En parte White, 28 S.W. 542, 544 (Ten. Cria. App. 1894);
Anderson v. Crow, 260 S.W.2d 227, 233-34 (Tex. Civ. App. - Austin
1953, wand. overr.); Attorney General Opinion O-1303 (1939).

     You next ask whether zhe law requires that the election judge in
a municipal election be a registered voter living within the
boundaries of the district. Chapter 32 of the Election Code deals
with the appointnent and qualifications of election judges. The
provisions of a home rule city charter supersede or supplement some of
the code provisions. See SLec. Code 5532.011. 32.035, 32.056. Alvin
is a hone rule city anms     charter provisions on elections will have
to be read together with the Election Code.

     Sections 32.051 through 32.056 of the Election Code govern
eligibility requirenents :Eor election judges.     These provisions
constitute subchapter C of chapter 32 of the Election Code. Sectlop
32.051 provides as follows:

             (a) Except a:~ provided by Subsection (b), to
          be eligible to :@ve as a judge of an election
          precinct, a person must be a qualified voter of
          the precinct.

             (b) If the suthority making an energency
          appointment of s. presiding judge cannot find an
          eligible qualified voter of the precinct who is
          willing to accept the appointment, the eligibility
          requirement for a clerk prescribed by Subsection
          (c) applies.

               (c) To be eligible to serve as a clerk of an
          election precinct, a persou nust be a qualified
          voter ;

             .   .   .   .

             (3) of the political subdivision. in an
          election ordered by an authority of a political
          subdivision othsr than a county.      (Emphasis
          added).

A hone rule city charter aay prescribe eligibility requirements or
grounds of ineligibility in addition to those prescribed in sub-
chapter C for election officers serving in elections ordered by an



                               p. 2140
Honorable Clint Hackney - l'age5   (JM-467)




authority of the city. Elec. Code 932.056; see 6532.052 (public
officer ineligible); 32.053 (candidate for publicoffice Ineligible);
32.054 (relative or employc~sof candidate ineligible). Under section
32.051, the person appointed as a city election judge must be a
qualified voter of the p:cecinct, unless he is appointed under the
emergency provision. Section 32.007 of the Election Code defines an
"emergency appointment" mier chapter 32:

             (a) If neither the presiding judge nor the
          alternate presidtng judge can serve in an election
          and their inabil:ttyto serve is discovered so late
          that it is impr,xticable to fill the vacancy in
          the normal msnmx, the presiding officer of the
          appointing authority or the authority if a single
          officer shall appoint a replacament judge to pre-
          side at the eleckton. If the appointing authority
          is unavailable, the authority responsible for
          distributing the supplies for the election shall
          appoint the replacement judge.

Elec. Code 032.007. Under the circumstances described here, the city
may appoint a qualified 'voter as election judge, subject to other
eligibility provisions in the city charter applicable to an anergeacy
appointee. Whether an orJer under the federal Voting Rights Act
affects the operation of lkese provisions at the April 5 election in
Alvin is a question beyond ,thescope of this opinion.

                             SUMMARY

             Section 43.004, of the Election Code provides
          that a polling .place for a mutiicipal election
          should be located within the election precinct.
          Section 32.051 af the Election Code requires that
          the election jwlge be a registered voter of the
          election precinct he serves as judge. Section
          32.051 of the E:lection Code also provide for
          appointment of 8 registered voter in an emergency
          as defined by section 32.007 of the Election Code.
          The provisions WE the Federal Voting Rights Act
          may in some casfw prevail over the provisions of
          the Texas Election Code.

                                         Very truly you s
                                                .

                                         J-k
                                          JIM     MATTOX
                                          Attorney General of Texas

JACX EIGHTOWER
First Assistant Attorney General


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Honorable Clint Eackney - I'rge6      (JM-467)




MARY KELLER
Executive Assistant Attormy    General

ROBERT GRAY
Special Assistant Attorney G.eneral

RICK GILPIN
Chairman, Opinion Coumittec!

Prepared by Susan L. Garrhon
Assistant Attorney General




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