### EATKDRNEP GENERAL

OF-XAS

May 24, 

### 1962

HonorableDwayne A. Overstreet OpinionNo. WW-1339 CountyAttorney Hardin County Courthouse Kountze, Texas Re: Whether an official or worker at the polls in a primary electionmay be permitted to leave the pollingplace for the purpose of eating or for otherpurposes, and upon return continue their Dear Mr. Overstreet: duties at thepolls.

Your letter requesting an opinion reads as follows:

"This office has been requested to furnish to the election judges in this County an opinion concerningwhether or not an official or worker at the polls in the Democratic Primarymay be permitted to leave thepolls for the purpose of eating or any other purpose and returning to thepolls and continuing their duty.

"May the counters of the absentee votes in the Democratic Primarybe permitted to leave the place of counting in order that theymay vote at their regular votingplace?
"QuestionNumber One arose as the result of certainworkers at the Democratic Primaryplace of polling in Kountze, Texas
on May 

### 5,1962,being permitted to leave the polls and go down town to eat lunch, this having been done in a prudentmanner and the electionprocess not having been either stopped or delayed.
"QuestionNumber Two arose as a result of four persons who were counting absentee ballots at the Office of the County Clerk of Hardin County, Texas, not being allowed to go to the Kountze box at the place of polling,whicn was theirproper place to vote. They were denied the rightHonorableDwayne A. Overstreet, Page 2 OpinionNo. WW-1339

to leave theplace of countingof the absenteeballots and were, therefore, denied the right to vote on the day of the election."

Article 13.05,Texas Election Code, reads as follows:

"All the precinct primary elections of a party shallbe conductedby a presiding judge, to be appointedby a chairman of the county executive committeeof the party, with the assistance and approval of at least a majority of themembers of the county executive committee. Such presiding judge shall select an associate judge and a clerk to assist in conducting the election; additional clerksmay be appointedunder such rules as may be made b the county executive committee. Two (2 Y supervisorsmay be chosenby any five (5) or one-fifth (l/5)of the candidates, which ever is the lessernumber,, whose names appearupon the primary ballot, who, with the judges and clerks, shall take the oath required of such officers in general elections; such supervisors shallbe paid by those requesting the supervisorsand they shall perform such duties as provided in the law for general elections."

Subdivision 6 of Art. 5.05, Texas Election Code, provides in part as follows:

"On the day of the election the jacket envelopes, containing the carrier envelopeswhich have been received togetherwith the applications for absentee ballots and accompanyingpapers, shallbe deliveredby the county clerk to a special canvassingboard of three (3) ormore members named by the authority which is authorizedby law to name the presiding judges of that election. The clerk shall deliver the envelopes to the canvassingboard at suchhour as the board shall direct,but not later than 1:00p.m.
. . .' (1

. . .Honorable Dwayne A. Overstreet, Page 3 OpinionNo. WW-1339

"At such time as the presiding judge shall direct, the absenteeballot box shallbe opened.

. . "The special canvassingboard shall possess the same qualifications,be paid the samewage, and be subject to the same laws and penalties as regular election judges.

. , .' L Emphasis added._/

Art. 13.22, Texas Election Code, provides in part:
"The, sameprecautions requiredby law to secure the purity of a ballot box in general elections, in regard to ballot boxes, locking the ballot boxes, sealing the same,watchful care of them,

. . . shallbe observed in all primary elections." [Emphasis added.2

Thus we see that for each voting precinct, the presiding judge is appointedby the County Chairman,with the approval of a majority of the County Executive Committee. The presiding judge at each votingprecinct then chooseshis associate judge and one or more clerks as allowedby the County Executive Committee. If any supervisors selectedby the candidatesare present, such supervisors take the same oath of office as the judges and clerks, and are election officials also.

The special canvassingboard for absenteeballots, is composed of three or more members who are also appointed by the County Chairman,with the approval of a majority of the County Executive Committee. All members of the special canvassing board apparently are judges, and one of them is named the presiding judge. The special canvassingboard, as a whole, shall,
name the hour at which the absentee ba'l.ots are to be delivered to themby the clerk,but not later than 1:00p.m.
Without elaborating, it is sufficient to state that there are duties imposed upon thepresiding judge of the election precinct, certain duties imposed upon all judges,and upon all election officials,whether judges, clerks or supervisors. These duties are found throughout the Election Code. This accounts, in part, for the number of election officials appointed for each electionprecinct. Other reasons for the number of election officialsmay be found in Art. 13.22, supra. By providing for the appointment oI'one official as presiding judge, and permittinghim to name his associate judge and clerks,Art. 13.05;by requiring the presiding judge to draw the supplies for the election,Art. 13.19; and to return theHonorable Dwayne A. Overstreet, Page 4 OpinionNo. WW-1339

ballot boxes to the clerk after the election is over, Art. 13.23; the Election Code placed theprimary obligation on the presiding judge, and with such obligationgoes the necessary power tomanage the election at his votingprecinct,not inconsistentwith the law.

We find nothing in the Election Code which would provide for the number of judges and clerks to be on duty at the polling place at any one time on election day. It would appear to us that there shouldbe on duty at any given time sufficient judges and clerks or judge and clerk to carry out the duties imposedby the Election Code. What this number iswill vary from precinct to precinct, dependingnot only on the duties imposes on judges and clerks,respectively,but on the number of potential voters in any given precinct. No doubt the County Executive Committee takes this into consideration in deciding how many clerks to allot to each precinct. We know of one instancewhen two jud es might be required to be present at the same time. Art. 8.13,Election Code, provides that where
a voter is unable, due to bodily infirmity, tomark his own ballot, two judges shall assist him, after the judgeshave taken an oath to confine themselves to answering his questions, etc. There is anothermethod whereby such a votermay vote, which does not require the assistance of two judges. But even in a casewhere the two judgesmust assist the voter, it does not seem to be any violation of the Election Code to ask the voter to wait a fewminutes until one of the judges returns from lunch. In no case shouldboth judgesbe absent at the
same time. What we have just said applies to the situation from the time the polls open at 7:00 a.m. and until they close at 7~00 p.m. After the polls have closed,and counting and tabulating of votes is under way, and returns are to be prepared, all officials ought to be present to the fullest extent practicable, so as to not give any candidateany excuse to charge errors or irregularitiesdue to insufficientpersonnel being present to carry out those duties.

In the case of the special canvassingboard for absentee ballots,we feel that the situationpresented in your letter would never have arisen, if the board had deferred itsmeeting until around 8:OO or 9:OO a.m. Then allmembers of the board would have had time to go to the polls to vote, before coming to the courthouse to sit as a canvassingboard for absentee ballots. The board is not required tomeet before 1:00 p.m. on election day. But, in any event, we do feel that it would not be prudent for any member of the board to absent himself, while the envelopes are being opened, votes challenged,votes counted, and returnsmade. The special canvassingboard for absentee ballots i.sin a different situation from the judges. -

HonorableDwayne A. Overstreet, Page 5 OpinionNo. WW-1339

and clerks of the regular polling places. From themoment the special canvassingboard convenes and receives the absentee ballots from the clerk, they are engaged in opening envelopes, hearing challenges, countingvotes, and tabulatingreturns.

In the final analysis, the presiding judge of each voting precinct or of the special canvassingboard for absentee ballots must make the decision as to whether or not circumstancesaffecting his precinct or the board, including the duties to be performed, the judges and clerks available, and the number of potential voters in theprecinct, will make it possible for him to let the election officials at his precinct leave the polling place to eat or for any other necessarypurpose. The presiding judge is themanager of the election at his precinct; he has the principal burden on his shoulders. All reasonable rules governing the election officials for thatprecinct which the presiding judgemay issue,not inconsistentwith law, ought to be followed by thosehe has named to assist him. If his rules
are too oppressive for anyone to work with him, he may find himself in thepredicament of trying to hold an electionwithout any help.

SUMMARY

The presiding judge at any votingprecinct is themanager of the election at his precinct. There isnothing in the Election Code which would prevent the presiding judge from permitting judges and clerks at his electionprecinct to leave the polling place to eat or for other necessarypurposes, so long as there are sufficientelection personnel on duty to take care of the voters, and to give watchful care of the ballot boxes.

The special canvassingboard for absentee ballots should set its time of conveningnot later than 1:00 p.m. so that the judgeswho aremembers of such board will have time to vote at their respective precinctsbefore conveningas a board.

REF/jp Yours very truly,

WILL WILSON Attorney General of Texas

By:-@% +* Riley Eugene Fletcher Assistant.

HonorableDwayne A. Overstreet, Page 6 OpinionNo. WW-1339

APPROVED:

OPINION COMMITTEE: W. V. Geppert, Chairman
Joseph Trimble Henry G. Braswell Tom Hunter

REVIEWED FOR THE ATTORNEYGENERAL By: Haughton Brownlee, Jr.