     OFFICE
          OFTHEATTORNEY
                     GENERAL.
                           STATE
                               OFnx*s
     JOHN CORNYN




                                                January 12,200l




The Honorable Scott W. Rosekrans                           Opinion No. X-0330
San Jacinto County Criminal District Attorney
P.O. Box 430                                               Re: Whether the wife of the chairman of the
Coldspring, Texas 7733 1                                   San Jacinto County RepublicanParty is prohibited
                                                           from serving as ajudge on the Early Voting Ballot
                                                           Board (RQ-0276-JC)

Dear Mr. Rosekrans:

        You have asked this office whether, pursuant to section 32.054 ofthe Election Code, the wife
of the chairman of the San Jacinto County Republican Party is prohibited from serving as a judge
on the Early Voting Ballot Board (“the board”). We conclude, as has the Elections Division of the
Office of the Secretary of State, that she is not.

         As you explain the situation which prompts your request, Marcella Shaw, wife of William
Shaw, chairman of the San Jacinto County Republican Party, has been appointed as a judge of the
Early Voting Ballot Board.’ Mr. Shaw has no electoral opposition for his office.’ Your office takes
the view that because Mrs. Shaw is related within the second degree of consanguinity or affinity to
the chairman of a political party, she is barred by section 32.054 of the Election Code from serving
as a judge on the board. While an attorney for the Elections Division (“the division”) of the
Secretary of State’s office had, as you inform us, agreed with your view in a telephone conversation,
see Request Letter, note 1, at l-2, the division has taken the contrary view in writing, both in a letter
to your office and in a brief submitted to this office. See McGeehan Letter of 317100, note 2, at 1.’




         ‘See Letter from the Oftice of Honorable Scott W. Rosekrans, San Jacinto County Criminal Dishict Attorney,
to Honorable John Comyn, Texas Attorney General (Aug. 24, 2000) (on tile with Opinion Committee) [hereinafter
Request Letter].

         ‘See Letter from Ann McGeehan, Director of Elections, Office ofthe Secretary of State, to Robert S. Duboise,
San Jacinto County Assistant Criminal District Attorney (Mar. 7,200O) (on tile with Opinion Committee) [hereinafter
McGeehan Letter of 3/7/00].

         ‘SeealsoBrieffrom AnnMcGeehan, DirectorofElections, Office ofthe Secretary ofstate, to SusanD. Gusky,
Chair, Opinion Committee, Office of the Attorney General (Oct. 6,200O) (on tile with Opinion Committee) [hereinafter
McGeehan Brief of 10/6/00].
 The Honorable     Scott W. Rosekrans     - Page 2      (X-0330)




        The Election Code section in question reads, in relevant part:

                          A person is ineligible to serve as an election judge or clerk in
                 an election if the person is employed by or related within the second
                 degree by consanguinity or affinity, as determined under Chapter 573,
                 Government Code, to an opposed candidate for a public oftice or the
                 party office of county chair in the election.

                            .




TEX. ELEC. CODE ANN. 5 32.054(a) (Vernon      Supp. 2000). An “election judge” for this purpose
would include ajudge of the Early Voting Ballot Board. See id. 5 87.002; see also McGeehan Letter
of 317100, supra note 2, at 1.

        In your view, as we understand it, a person is disqualified from service as an election judge
if he or she is either employed by, or related within the prohibited degree to: “(1) an opposed
candidate for public office; or (2) the party office of county chair.” Request Letter, supra note 1, at
4.

        The division, on the other hand, reads the prohibition to apply to “an opposed candidate” for
either: (a) public office, or (b) the party office of county chair. See McGeehan Brief of 10/6/00,
supra note 3, at 2-3. “It has been the consistent interpretation ofthe Office ofthe Secretary of State
that ‘opposed’ applies to both phrases.” Id. at 3.

        We note at the outset that the Secretary of State is Texas’s chief election offtcer. See TEX.
ELEC. CODEANN. 5 3 1.OOl(a) (Vernon Supp. 2000). As such, the Secretary is empowered to “assist
and advise all election authorities with regard to the application, operation, and interpretation of [the
Election Code] and of the election laws outside this code.” Id. 5 31.004(a) (Vernon 1986).
Accordingly, so long as the Secretary of State’s interpretation of an Election Code provision is a
reasonable one that does not do violence to the statutory language, this office will defer to it. See
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,823 (Tex. 1993) (“Construction of a statute by
the administrative agency charged with its enforcement is entitled to serious consideration, so long
as the construction is reasonable and does not contradict the plain language of the statute.“);
Rylanderv. B&AMktg. Co., 997 S.W.2d 326,331 (Tex. App.-Austin 1999, no pet.); Tex. Att’y Gen.
Op. Nos. JC-164 (1999) at 5-6; JC-117 (1999) at 6.

         In this instance, the interpretation offered by the Elections Division is a reasonable one. The
parallel phrases “a public office” and “the party office of county chair” would both, in the division’s
reading, refer back to “an opposed candidate.” Grammar and sense in that instance are not offended.
In the interpretation offered by your office, on the other hand, some phrase like “the person holding
the party office” must be supplied because one cannot be employed by or related in the prohibited
degree to “the~party office of county chair.” See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904
 The Honorable    Scott W. Rosekrans    - Page 3      (X-0330)




S.W.2d 656, 659 (Tex. 1995) (additional words should not be read into statute unless clearly
necessary to give effect to legislative intent); Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902
(Tex. 1988).
         Nor are we persuaded by your argument that the Secretary of State’s reading renders the
provision surplusage in the context of a general election because by that point, the parties will have
chosen their county chairs. Early voting occurs in both primary and general elections. The relatives
of opposed candidates for the office of county chair may not serve on the board during those
elections in which their relatives have opposition. The legislature might have distinguished primary
and general elections in this context more explicitly had it wished, but the fact that it did not wish
to do so does not alter the statute’s meaning or render it meaningless.

        Because the interpretation of the language of section 32.054 of the Election Code offered by
the Office of the Secretary of State is reasonable and does not contradict the statutory language, we
defer to it. The wife of the chairman of the San Jacinto County Republican Party, the chairman not
being an opposed candidate for that office, is not prohibited by section 32.054 ofthe Election Code
from serving as a judge on the Early Voting Ballot Board.
 The Honorable     Scott W. Rosekrans   - Page 4      (JC-0330)




                                           SUMMARY

                          The wife of the chairman of the San Jacinto County
                 Republican Party, the chairman not being an opposed candidate for
                 that office, is not prohibited by section 32.054 of the Election Code
                 from serving as a judge on the Early Voting Ballot Board.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
