EATKDRNEP GENERAL 

OF-XAS 

May 24, 1962 

Honorable Dwayne A. Overstreet Opinion No. WW-1339 

County Attorney 

Hardin County Courthouse 

Kountze, Texas 

Re: Whether an official or 

worker at the polls in a 

primary election may be 

permitted to leave the 

polling place for the purpose of eating or for 

other purposes, and upon 

return continue their 

Dear Mr. Overstreet: duties at the polls. 

Your letter requesting an opinion reads as follows: 

"This office has been requested to 

furnish to the election judges in this 

County an opinion concerning whether or 

not an official or worker at the polls in 

the Democratic Primary may be permitted 

to leave the polls for the purpose of 

eating or any other purpose and returning 

to the polls and continuing their duty. 

"May the counters of the absentee votes 

in the Democratic Primary be permitted to 

leave the place of counting in order that 

they may vote at their regular voting place? 

"Question Number One arose as the result of certain workers at the Democratic 

Primary place 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 prudent manner and 

the election process not having been either 

stopped or delayed. 

"Question Number 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 their proper 

place to vote. They were denied the right 
Honorable Dwayne A. Overstreet, Page 2 Opinion No. WW-1339 

to leave the place of counting of the 

absentee ballots 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 shall be conducted by a presiding judge, to be appointed by a chairman of the county executive committee of 

the party, with the assistance and approval 

of at least a majority of the members of 

the county executive committee. Such presiding judge shall select an associate 

judge and a clerk to assist in conducting 

the election; additional clerks may be 

appointed under such rules as may be 

made b the county executive committee. 

Two (2 Y supervisors may be chosen by any 

five (5) or one-fifth (l/5) of the candidates, which ever is the lesser number,, 

whose names appear upon the primary ballot, who, with the judges and clerks, 

shall take the oath required of such 

officers in general elections; such 

supervisors shall be paid by those requesting the supervisors and 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 

envelopes which have been received together with the applications for absentee ballots and accompanying papers, 

shall be delivered by the county clerk 

to a special canvassing board of three 

(3) or more members named by the authority 

which is authorized by law to name the 

presiding judges of that election. The 

clerk shall deliver the envelopes to the 

canvassing board at such hour as the 

board shall direct, but not later than 

1:00 p.m. . . .' 

(1 

. . . 
Honorable Dwayne A. Overstreet, Page 3 Opinion No. WW-1339 

"At such time as the presiding judge 

shall direct, the absentee ballot box 

shall be opened. . . 

"The special canvassing board shall 

possess the same qualifications, be paid 

the same wage, 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, same precautions required by 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, . . . 

shall be observed in all primary elections." [Emphasis added.2 

Thus we see that for each voting precinct, the presiding 

judge is appointed by the County Chairman, with the approval 

of a majority of the County Executive Committee. The presiding 

judge at each voting precinct then chooses his associate judge 

and one or more clerks as allowed by the County Executive Committee. If any supervisors selected by the candidates are 

present, such supervisors take the same oath of office as the 

judges and clerks, and are election officials also. 

The special canvassing board for absentee ballots, 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 canvassing board, as a whole, shall, 

name the hour at which the absentee ba'l.ots are to be delivered 

to them by the clerk, but not later than 1:00 p.m. 

Without elaborating, it is sufficient to state that 

there are duties imposed upon the presiding 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 election precinct. Other reasons for the 

number of election officials may be found in Art. 13.22, supra. 

By providing for the appointment oI' one official as presiding 

judge, and permitting him 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 the 
Honorable Dwayne A. Overstreet, Page 4 Opinion No. WW-1339 

ballot boxes to the clerk after the election is over, Art. 

13.23; the Election Code placed the primary obligation on the 

presiding judge, and with such obligation goes the necessary 

power to manage the election at his voting precinct, not 

inconsistent with 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 should be on duty at any given time sufficient 

judges and clerks or judge and clerk to carry out the duties 

imposed by the Election Code. What this number is will vary 

from precinct to precinct, depending not 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 

instance when 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, to mark his own 

ballot, two judges shall assist him, after the judges have 

taken an oath to confine themselves to answering his questions, 

etc. There is another method whereby such a voter may vote, 

which does not require the assistance of two judges. But even 

in a case where the two judges must assist the voter, it does 

not seem to be any violation of the Election Code to ask the 

voter to wait a few minutes until one of the judges returns 

from lunch. In no case should both judges be 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 candidate any excuse 

to charge errors or irregularities due to insufficient personnel being present to carry out those duties. 

In the case of the special canvassing board for absentee 

ballots, we feel that the situation presented in your letter 

would never have arisen, if the board had deferred its meeting 

until around 8:OO or 9:OO a.m. Then all members of the board 

would have had time to go to the polls to vote, before coming 

to the courthouse to sit as a canvassing board for absentee 

ballots. The board is not required to meet 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 returns made. The special canvassing board for 

absentee ballots i.s in a different situation from the judges 
. - 

Honorable Dwayne A. Overstreet, Page 5 Opinion No. WW-1339 

and clerks of the regular polling places. From the moment the 

special canvassing board convenes and receives the absentee 

ballots from the clerk, they are engaged in opening envelopes, 

hearing challenges, counting votes, and tabulating returns. 

In the final analysis, the presiding judge of each voting 

precinct or of the special canvassing board for absentee ballots 

must make the decision as to whether or not circumstances affecting his precinct or the board, including the duties to be performed, the judges and clerks available, and the number of potential voters in the precinct, will make it possible for him to 

let the election officials at his precinct leave the polling 

place to eat or for any other necessary purpose. The presiding 

judge is the manager of the election at his precinct; he has 

the principal burden on his shoulders. All reasonable rules 

governing the election officials for that precinct which the 

presiding judge may issue, not inconsistent with law, ought to 

be followed by those he has named to assist him. If his rules 

are too oppressive for anyone to work with him, he may find 

himself in the predicament of trying to hold an election without any help. 

SUMMARY 

The presiding judge at any voting precinct 

is the manager of the election at his precinct. 

There is nothing in the Election Code which would 

prevent the presiding judge from permitting judges 

and clerks at his election precinct to leave the 

polling place to eat or for other necessary purposes, so long as there are sufficient election 

personnel on duty to take care of the voters, and 

to give watchful care of the ballot boxes. 

The special canvassing board for absentee 

ballots should set its time of convening not later 

than 1:00 p.m. so that the judges who are members 

of such board will have time to vote at their respective precincts before convening as a board. 

REF/jp 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By:-@% +* 

Riley Eugene Fletcher 

Assistant 
. 

Honorable Dwayne A. Overstreet, Page 6 Opinion No. WW-1339 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Joseph Trimble 

Henry G. Braswell 

Tom Hunter 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Haughton Brownlee, Jr.