WILL WILSON

A1TsxRNEYGENERAl. May 2, 1962

Honorable John E. Pitzgibbon Opinion No. WW-1324 CountyAttorney 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 followingquestions:

“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 discretionarypower to designatepollingplaces less than 100 yards apart from each other, or is he ;;t;r;oundunder the first sentence

13.04 to designatepolling places’not less than 100y,ards apart?”

You further stated in your letter:

“Several weeks ago, Mr. Honore Ligarde, the Democratic Chairman from Webb County,was foresightedenough 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 schoolshave been made at this time by the Republican Party.Honorable John E. Fitzgibbon,Page 2 .

OpinionNo. W-1324

“It will be impossible in most of the schools in the Laredo Independent SchoolDistrict, because of the square foot area, to hold primaries for bothparties the same day and still keep the polling places over one hundred yards apart.‘I

Art. 13.04,Texas Election Code of 1951 (formerlyArt. 3103, Revised Civil Statutes of Texas, 1925) reads as follows:

“Theplaces of holding primary elections of politicalparties in the various precincts of the State shall not be within onehundred (100) yards of the place at which such elections or conventionsare held by a differentpoliticalparty. When the Chairmen of the Executive committee of the differentparties cannot agree on places where precinctprimary elections to be held on the same day shall be held, suchplaces in eachprecinct shall be designated by the county judge, who shall causepublic notice thereof to be given at once in somenewspaper in the county, or if there be none, by posting notices in somepublic place in the precinct."

Art. 2.03, Texas Election Code of 1951 (formerlyArt. 2932, Revised Civil Statutes of Texas, 1925) reads as follows:

"In all cases where it is practicable so to do, all elections --general, specialor primary -- shall be held in some schoolhouse, fire station
or otherpublic buildingwithin the limits of the electionprecinct in which such election is beingheld. 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 shallbe repaid to them by the party, who would be liable for the expenses of holding the electionunder the existing law. If there be no public buildings so. .

Honorable John E. Fitzgibbon, Page 3 OpinionNo. WW-1324

available, such election may be held in some other building.”

In Johnson County, the CommissionersCourt had duly entered
an order defining the electionprecinctswithin the city of Cleburne, and designating certain schoolbuildings therein as the places where the elections shouldbe held. In 1932 the school board notified the DemocraticExecutive Committee and the Commissioners Court that the Board would not permit the elections to be held in the schoolbuildings. The Democratic Executive Committee brought suit against the Board seekinga writ of mandamus to compel the Board to permit use of the schoolbuildings for the First and SecondDemocratic Primary Elections of 1932. The Commissioners Court intervened and prayed for a likewrit 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 Cleburnev. Johnson County Democratic Executive Committee, et al, 52 S.W.2db8. The trial court found that the schoolbuildingsdesignated by the commissioners court as the places where the elections shouldbe held,
were the only public buldingswithin 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 electionsand not primaries, since the place of holding primary elections is expressly,

and differentlyprovided for in article 3103 [now Art. 13.04, Election CodeJ.

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II 4

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1,

. . . The discretion to determine whether it is practicable to hold elections in schoolhouses, ~ . . , is to be exercisedby t’hetrustees. ~ .The uncontradicted evidence conclusively shows that the trustees were reasonablyand 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 courthad found that the schoolhouses were the only public buildingswithin the electionprecinczs.Honorable John E. Fitzgibbon,Page 4 OpinionNo. 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 electionsand the general election. If it is discretionarywith the governingboard, council or commissionas to whether its public buildings shall be used as polling places in elections,then there is even less power for a-commissionerscourt or a politicalparty to designate
a privately owned building as a polling place, withoutpermission of its owner. Since the Supreme Courthas stated that Art. 2.03, Election Code, has no application to primary elections, then the action of the Laredo IndependentSchool District'sboard in permitting the use of the schoolbuildingsby the first political party to ask from them is no abuse of discretion on theirpart. We are not in favor of discrimination against any legalpolitical party, but in this case the Democraticparty simplyasked first.
Having made their arrangements for holding the Demobratic Primary, is the County Judge now calledupon 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 Courthas already said that Art. 2.03 has no application to a primary election. Suppose the Republicans now selecta buildingwithin 100 yards of a schoolbuilding,already designatedas a polling place for the Democrats, and call on the County Judge to make the Democratsmove to some other building, so as to be 100yards
or more away from the Republicanpolling place. Suppose, further, that the building selectedby the Republicansand the school building designatedby the Democrats are the only two available buildings. To hold that Art. 13.04, Election Code, which directs polling places of differentpoliticalparties in the same precinct be located at least 100yards apart is mandatory, would be to assume that all votingprecincts within the state contain at least two availablebuildings (andus not impossible to have three or more politicalpartiesholding primaries on the

same day) properly spaced forholding primary elections. Since the County Judge has no control overmost of the buildingswhich might be involved in a dispute, and since the available buildings vary fromprecinct to precinct, to hold that Art. 13.04was mandatory in every case would be to place the County Judge in
an impossibleposition.

We think reasonablemen, 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 otherparty is then left with the problem of finding a suitablepolling place at least 100yards from the firstparty's pollingplace. Thismay not always be possible. Where there is a choice of several availablebuildingswithin an electionprecinct, the political.’

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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 designatedby eachparty within less than 100 yards of each other, the county judge should then designate the place for eachparty. But the law will not compel the County Judge to perform an impossibleact. Where the polling.places of the parties are within less than 100 yards of each other, but the buildings selectedare the only availablebuildings (and this iheCountv JudRe). the nrimarv a fact question to be decided bn ~~~.~_~~~~~~_” election for bothparties will stillbe heid, a;d’in the polling places selectedby the respectiveparties.

finanswer 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 respectiveparties are within 100 yards of each other in the sameprecinct, and where there is another or other available building or buildingswhich could be used as polling places which complywith the statuteregarding spacing, the County Judge shall settle the disagreementby designating a suitableavailablebuilding 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 differentpoliticalparties, the polling places of their respectiveparties are within 100 yards of each other in the sameprecinct, and where there is another or other available building or buildingswhich could be used
as polling places which comply with Art. 13.04 regarding spacing, the County Judge shall settle the disagreementby designatinga suitable available building or buildings for one or more of the parties. Whether such other building
or buildingsare suitableand available is a fact question to be decided by the County Judge, at his discretion.

Yours very truly,

WILL WILSON Attorney General of TexasHonorable John E. Fitzgibbon,Page 

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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.