WILL WILSON 

A1TsxRNEYGENERAl. 

May 2, 1962 

Honorable John E. Pitzgibbon Opinion No. WW-1324 

County Attorney 

Webb County Courthouse Re: Whether the provisions of 

Laredo, Texas Art. 13.04, Texas Election 

Code, with reference to 

places of holding party 

primaries are mandatory 

Dear Mr. Ritzgibbon: or directory. 

You have asked the following questions: 

“1. Is Art. 13.04, Texas Election 

Code, mandatory or merely directory? 

“2. In the event the two Chairmen of 

the two political parties cannot 

agree as to the use of the same 

polling places, does the County 

Judge, under the provisions of 

the second sentence of Art. 13.04, 

Texas Election Code, have the discretionary power to designate polling places less than 100 yards 

apart from each other, or is he 

;;t;r;ound under the first sentence 

13.04 to designate polling 

places’not less than 100 y,ards 

apart?” 

You further stated in your letter: 

“Several weeks ago, Mr. Honore 

Ligarde, the Democratic Chairman from 

Webb County, was foresighted enough to 

request the Laredo Independent School 

District for the use of the schools in 

order to hold the Democratic Primary. 

No request at that time was made by 

the Republican Party~ and it is unknown 

as to whether or not any request to 

use the schools have been made at this 

time by the Republican Party. 
Honorable John E. Fitzgibbon, Page 2 

. 

Opinion No. W-1324 

“It will be impossible in most 

of the schools in the Laredo Independent School District, because of the 

square foot area, to hold primaries 

for both parties the same day and still 

keep the polling places over one hundred 

yards apart .‘I 

Art. 13.04, Texas Election Code of 1951 (formerly Art. 

3103, Revised Civil Statutes of Texas, 1925) reads as follows: 

“The places of holding primary 

elections of political parties in 

the various precincts of the State 

shall not be within one hundred (100) 

yards of the place at which such elections or conventions are held by a 

different political party. When the 

Chairmen of the Executive committee 

of the different parties cannot agree 

on places where precinct primary elections to be held on the same day shall 

be held, such places in each precinct 

shall be designated by the county judge, 

who shall cause public notice thereof 

to be given at once in some newspaper 

in the county, or if there be none, by 

posting notices in some public place 

in the precinct." 

Art. 2.03, Texas Election Code of 1951 (formerly Art. 2932, 

Revised Civil Statutes of Texas, 1925) reads as follows: 

"In all cases where it is practicable so to do, all elections -- general, special or primary -- shall be 

held in some school house, fire station 

or other public building within the 

limits of the election precinct in 

which such election is being held. No 

charge shall be made for the use of 

such building, except that any additional expense actually incurred by 

the authorities in charge of such 

building on account of the holding 

of the election therein shall be repaid to them by the party, who would 

be liable for the expenses of holding 

the election under the existing law. 

If there be no public buildings so 
. . 

Honorable John E. Fitzgibbon, Page 3 Opinion No. WW-1324 

available, such election may be 

held in some other building.” 

In Johnson County, the Commissioners Court had duly entered 

an order defining the election precincts within the city of Cleburne, and designating certain school buildings therein as the 

places where the elections should be held. In 1932 the school 

board notified the Democratic Executive Committee and the Commissioners Court that the Board would not permit the elections to 

be held in the school buildings. The Democratic Executive Committee brought suit against the Board seeking a writ of mandamus to 

compel the Board to permit use of the school buildings for the 

First and Second Democratic Primary Elections of 1932. The Commissioners Court intervened and prayed for a like writ with respect 

to the use of the buildings for the General Election of 1932. 

The trial court granted the writ of mandamus, which was affirmed 

by the Court of Civil Appeals, in the case styled Trustees of 

Independent School District of Cleburne v. Johnson County Democratic Executive Committee, et al, 52 S.W.2d b8. The trial 

court found that the school buildings designated by the commissioners court as the places where the elections should be held, 

were the only public buldings within the respective election 

precincts. The Supreme Court of Texas reversed the trial court 

and the Court of Civil Appeals, 

and stated at page 72: 

in 122 Tex. 48, 52 s.w.2d 71, 

“We think it is manifest that 

article 2932 [now Art. 2.03, Election 

Code] governs only general and special 

elections and not primaries, since the 

place of holding primary elections is 

expressly, and differently provided for 

in article 3103 [now Art. 13.04, Election CodeJ. . ,. . 

II 

4 . . 

1, 

. . . The discretion to determine 

whether it is practicable to hold elections in schoolhouses, ~ . . , is to be 

exercised by t’he trustees. ~ . The uncontradicted evidence conclusively shows 

that the trustees were reasonably and 

faithfully exercising their discretion 

in refusing to permit the schoolhouses 

to be used for holding the general election therein.” 

In the above case, the trial court had found that the schoolhouses were the only public buildings within the election precinczs. 
Honorable John E. Fitzgibbon, Page 4 Opinion No. WW-1324 

Yet the Supreme Court of Texas upheld the right of the school 

district to exercise its own discretion in refusing the use of 

the buildings for both the primary elections and the general 

election. If it is discretionary with the governing board, 

council or commission as to whether its public buildings shall 

be used as polling places in elections, then there is even less 

power for a-commissioners court or a political party to designate 

a privately owned building as a polling place, without permission 

of its owner. Since the Supreme Court has stated that Art. 2.03, 

Election Code, has no application to primary elections, then the 

action of the Laredo Independent School District's board in permitting the use of the school buildings by the first political 

party to ask from them is no abuse of discretion on their part. 

We are not in favor of discrimination against any legal political 

party, but in this case the Democratic party simply asked first. 

Having made their arrangements for holding the Demobratic 

Primary, is the County Judge now called upon under Art. ~13.04, 

Election Code, to oust the Democrats from some or all of their 

polling places? We don't think so. The Supreme Court has already said that Art. 2.03 has no application to a primary election. Suppose the Republicans now select a building within 100 

yards of a school building, already designated as a polling 

place for the Democrats, and call on the County Judge to make 

the Democrats move to some other building, so as to be 100 yards 

or more away from the Republican polling place. Suppose, further, 

that the building selected by the Republicans and the school 

building designated by the Democrats are the only two available 

buildings. To hold that Art. 13.04, Election Code, which directs 

polling places of different political parties in the same precinct be located at least 100 yards apart is mandatory, would 

be to assume that all voting precincts within the state contain 

at least two available buildings (and us not impossible to 

have three or more political parties holding primaries on the 

same day) properly spaced for holding primary elections. Since 

the County Judge has no control over most of the buildings which 

might be involved in a dispute, and since the available buildings vary from precinct to precinct, to hold that Art. 13.04 was 

mandatory in every case would be to place the County Judge in 

an impossible position. 

We think reasonable men, in anticipation of a coming election, ought to sit down and work out the solution to this problem, without acrimony. Eut where, as here, one party has acted 

to take care of its needs in ample time, the other party is then 

left with the problem of finding a suitable polling place at 

least 100 yards from the first party's polling place. This may 

not always be possible. Where there is a choice of several 

available buildings within an election precinct, the political 
.’ . 

Honorable John E. Fitzgibbon, Page 5 Opinion No. WW-1324 

parties ought to comply with the statute; and in such cases if 

polling places are designated by each party within less than 

100 yards of each other, the county judge should then designate 

the place for each party. But the law will not compel the County 

Judge to perform an impossible act. Where the polling.places of 

the parties are within less than 100 yards of each other, but 

the buildings selected are the only available buildings (and this 

a fact question to be decided bn ihe Countv JudRe). the ~~~ .~_~~~~~~_” nrimarv 

election for both parties will still be heid, a;d’in the polling 

places selected by the respective parties. 

fin answer to your first question, we hold that Art. 13.04, 

Texas Election Code is mandatory only, to the extent that compliance therewith is practicable. In answer to your second question, we hold that where through disagreement of the County Chairmen, the polling places of their respective parties are within 

100 yards of each other in the same precinct, and where there 

is another or other available building or buildings which could 

be used as polling places which comply with the statute regarding 

spacing, the County Judge shall settle the disagreement by designating a suitable available building or buildings for one or more 

parties. Whether such other building or buildings are suitable 

and available is a fact question to be decided by the County Judge, 

at his discretion. 

SUMMARY 

Art. 13.04, Texas Election Code is mandatory only to the extent that compliance therewith is practicable. 

Where through disagreement of the County 

Chairmen of different political parties, the 

polling places of their respective parties are 

within 100 yards of each other in the same precinct, and where there is another or other available building or buildings which could be used 

as polling places which comply with Art. 13.04 

regarding spacing, the County Judge shall settle 

the disagreement by designating a suitable 

available building or buildings for one or more 

of the parties. Whether such other building 

or buildings are suitable and available is a 

fact question to be decided by the County Judge, 

at his discretion. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 
Honorable John E. Fitzgibbon, Page 6 Opinion No. WW-1324 

BY @I &-spn. 

Riley Eugene Fletcher 

Assistant 

REF/Jp 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Marietta McGregor Payne 

ljen;y ;;;fell 

. I 

F. C. Jack Goodman 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Houghton Brownlee, Jr.