The Attorney General of Texas 

July 10, 1978 

JOHN L. HILL 

Attorney General 

Honorable Lynn lngalsbe 

Criminal District Attorney 

Taylor County Courthouse 

701 Commerce. suite 200 Abilene, Texas 79602 

DalIa% TX. 75202 

214,742~8944 

4824 Alberta Ave., suite 160 

El Paso, TX. 799% Dear Mr. Ingalsbe: 

9151533-3484 

Opinion No. H-1207 

Re: Whether canvassing board 

may order recount of ballots 

in local option election. 

At the instance of the Commissioners Court of Taylor County sitting as 

a canvassing board, you request our opinion concerning whether the 

canvassing board has authority to order a recount of the ballots in a recent 

local option election in which paper ballots were used. 

The Commissioners Court met as a canvassing board under section 

251.51 of the Alcoholic Beverage Code. A group of citizens requested a 

recount of ballots at that time. Your office advised the board that neither 

the Election Code nor the Alcoholic Beverage Code authorized the board to 

order a recount. In your brief of the law submitted with your request as 

required under article 4399, V.T.C.S., you conclude that there is no legal 

authority for the commissioners court sitting as a canvassing board of such an 

election to recount the ballots. 

Upon receipt of your request we referred the question to the Secretary 

of State. Article 1.03 of the Election Code designates him the chief election 

officer of the State, and gives him the responsibility of insuring the uniform 

interpretation and application of the election laws. See Attorney General 

Opinion H-407 (1974) (establishing policy of referral of -6&tion law questions ,^_ - Affirmative Action Emplop= to Secretary of State). 
Honorable Lynn Ingalsbe, - page 2 (H-1207) 

The Secretary of State has advised us by his letter of June 30, 1978, that in 

his opinion there is no legal authority for the commissioners court sitting as a 

canvassing board of such an election to recount the ballots. 

As you and the Secretary of State conclude, the law is clear that the 

canvassing board has no power to order a recount. The board’s only authority in 

this election is to ascertain that the papers submitted as election returns are in the 

correct form and properly authenticated by the proper officers, and to compile the 

votes shown on the face of the returns and declare and certify the result 

ascertained. 

In Perguson v. Huggins, 52 S.W. 904 (Tex. 1932), the Texas Supreme Court 

discussed the limited powers and duties of a canvassing board and quoted authority 

for certain “elementary rules of law” as follows, at pp. 905-906: 

It is settled beyond controversy that canvamers cannot go 

behind the returns. The returns provided for by law are the 

sole and exclusive evidence from which a canvassing board 

or official can ascertain and declare the result. . . .’ 

The authorities likewise hold that, in the absence of a 

statute conferring it, a board of canvassers has neither 

express nor implied power to recount the ballots. . . . 

The supreme court reiterated these elementary rules of law in Grant v. 

Ammerman, 437 S.W.2d 547 (Tex. 1969). The court held that canvassing the votes 

of an election is a ministerial function and that in the case before them, the 

commissioners court sitting as a canvassing board “did not have the power to go 

behind the election returns.” The court said it has been held that a canvassing 

board “may not supplant statutory procedures for the contest of an election.” Id. at 

549-550. 

- 

There is no statute in either the Election Code or the Alcoholic Beverage 

Code which authorizes the commissioners court to conduct a recount In a local 

option election conducted with paper ballots. A district judge may order a recount 

upon petition of 25 voters when an electronic voting system is used. Blec. Code 

art. 7.15. A “recheck and comparison of the results” in the presence of a district 

judge and the county judge may be requested when voting machines are used. Elec. 

Code art. 7.14, SS 19, 19a. A recount at the request and expense of a candidate is 

authorized when paper ballots are used in an election for a public office. Elec. 

Code art. 9.38a. Each of these statutes sets out elaborate procedures specifying 

who may request a recount or the number of voters required to request it, to whom 

and when the request must be made, the grounds for a request, and how the costs 

involved are to be paid. The procedures differ substantially among the several 

P. 4844 
Honorable Lynn Ingalsbe - page 3 (H-1207) 

provisions. None is applicable to the type of election before us. While the law may 

be inconsistent or incomplete in this regard, such arguments are properly addressed 

to the legislature. They have no bearing on what the law is at this time. 

We concur with the legal conclusion reached by you and by the Secretary of 

State. In our opinion it is clear that there is no statutory authority for the 

commissioners court sitting as a canvassing board under section 251.51 of the 

Alcoholic Beverage Code to order a recount of the ballots in this local option 

election. An election such as this may be contested in the manner set out in article 

251.55 of the Alcoholic Beverage Code after the results are declared by the 

canvassing board. 

1972, no writ). 

Ellis v. Vanderslice, 486 S.W.2d 155 (Tex. Civ. App. - Dallas 

See also Rlec. Code, ch. 9. 

SUMMARY 

The commissioners court, sitting as canvassing board under 

section 251.51 of the Alcoholi,c Beverage Code, has no legal 

authority to order a recount of paper ballots in a local 

option election. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

L 

Opinion Committee ’ 

P. 4845