December 12, 1961

Honorable J. W. Edgar OpinionNo. ~~-1218

of Education Commissioner Texas Education Agency Re: Whether voting machines must Austin, Texas be used in school elections, where the commissioners court of a countyhas adopted the
use of voting machines as themethod of holding elecDear Mr. Edgar: tions in that county.

You have requested an opinion of this office on the following question:

"Where the commissioners court of a county purchases votingmachines and subsequentlypasses a resolution requiring the usage of suchmachines In all elections in such county, is
a school district board required to
use such voting machines in school trustee elections, In all school district elections?"

Your question requires an examination of Section 3 of Article 7.14 of the Election Code,Vernon's Civil Statutes, which reads as follows:

?The Commissioners Court of any county in the State of Texas may adopt for use In elections and primary elections in at least three

‘(3) of the larger voting precincts in voting strength in said county, any kind of votingmachine approved by the Secretary of State and may adopt such voting machine at any time for use in such additional voting precincts in the county as it may deem advisable, and thereupon such voting machine shallbe used at any and all elections and primary elections,municipal, county, district, or State held in that.\

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Honorable J. W. Edgar,page 2 @w-1218) C

county or any part thereof,designated for voting, registeringand counting votes cast at such electionsand primary elections,all school and bond elections also shallbe conductedby the use of votingmachines in those counties or parts thereofwhere suchmachineshave been adopted,where the lawnspecifically makes theiruse obligatory.

This statutedoes not give the commissionerscourt the authority to determine the types of elections in which votingmachines shallbe used. Itmerely gives the commissioners court the authority to designate the votingprecincts in which votingmachines are adopted for use, and the statute itselfprovides in what electionsheld within the designated territory the use of votingmachines ismandatory. The order upon which your opinion request is based reads as follows:

"It is orderedby the Commissioners' Court of Cameron County that the voting machinemethod of holding elections in Cameron County be and it Ishereby adopted."

This we interpretas being a county-wideadoption of voting machines for use in all electionprecincts of Cameron County, rather than an unauthorizedattempt on the part of the CommissionersCourt of Cameron County .torequire their use in all electionsheld within the county. We must look to Section 3 of Article 7.14 and other pertinent statutes to determinewhether theiruse in school electionsheld within Cameron County is now mandatory.

Section 3 of Article 7.14 provides that voting machines "shallbe used at any and all elections and primary elections,municipal, county, district,or State" held within the precincts for which votingmachines have been adopted, and furtherprovides that "all school and bond elections also shallbe conductedby the use of votingmachines in those counties or parts thereofwhere suchmachines have been adopted,where the law specificallymakes their use obligatory." (Emohaslssuonlied.) While this statute in itself requires the use-of voting-machines in the first-quoted types of elections,Honorable J. W. Edgar,page j (~~-1.218)

we construe it as requiring their use in school elections only where some other law obligatory."1 specificallymakes their use

There is no provision in the school laws or the Election Code which would prohibit a school district from ccnducting its electionswith available votingmachines rented from the county, if the district chose to do so, or which would invalidatean election soheld even though theiruse was not mandatory in that election. However,
we can find no statutewhich makes the use of voting machines obligatory in school elections,unless Section la of Article 27&c, Vernon's Civil Statutes, requires their
use for absenteevoting In school trustee elections. This statute,which was enacted by Chapter 440, Acts of the 57th Legislature,Regular Session, 1961, reads as follows:

"Section la. In all elections for the office of county school trustees, or trustees of any school districthowever created or designated, in countieswhere votingmachines have been adopted, the authority chargedwith holding an election in any such county or school district shall, b;r

proper resolution or order, provide that voting machines shall be used for the casting of absentee votes at such elections, in accordancewith the provisions of Article 7.14, Section 7, of the Acts of 1951, 52nd Legislature,

'This languagehas not been construed by the Texas courts. In Anderson v. Crow, 260 S.W.2d 227, 230 (Civ.App. 1953), involvingan election contest attacking the legality of a school bond electionheld in Bexar County, at which votingmachines had been used, for failure to maintain a voting place in each election precinct in the district, the court observed that the school districthad been advised that therewas some question of the legality of an election in Bexar County conductedwithout the use of votingmachines (theCommissionersCourt of Bexar County having adopted voting machines for use in that county), but the court did not indicate any opinion on whether their use was required in school electionsheld in c,ounties which had adopted voting machines.Honorable J. W. Edgar, page 4 (~~-1218)

Chapter 492, known as the Election Code of the State of Texas."

To arrive at the intent of this statute, it is necessary to review the law In effect at the time of its enactment.

Section 7 of Article 7.14, Election Code, contains the followingprovisions,which have remained unchanged since 1939:

"Sec. 7. AbsenteeVoting. In

counties in which votingmachines are adopted for use, the authority charged with holding an election shallwithin Its discretiondetermineby proper resolution and/or order whether or not votlng,machines shall be used for the casting of absenteevotes at such election, and if it be determinedby such authority that votingmachines shall be used for the casting of absentee votes at such election, a votingmachine
or machines shall be placed in the county clerk's office, If an election held at the expense of the county, or if a primary election, and if a city
or town election in the office of the city or town secretaryand if a school district or other election, in a public place designatedwithin the boundaries of such district or election, * * *. * * * Should the authority charged with holding an election determine by such resolution as above provided, that absentee votes cast at such election be cast by a paper ballot, then, and in such event, the authority charged with holding such election shall provide a ballot for the casting of absentee votes
as prescribed and provided by the general laws applicable to elections and to absentee voting, and those entitled under the law shall cast their vote by such ballot under the laws applicable to absentee voting, + * * .'

This statute, it is seen, gives the authority holding an election the discretion to determinewhether voting machines
or paper ballots shall be used for absentee voting.. .

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Honorable J. W. Edgar,page 5 (~14-1218)

In 1957 the Legislaturepassed a law relating to elections for county school trusteesand trustees of school districts (Chapter262 Acts of the 55th Legislature, 1957 codified as Article 2745~ in Vernon's Texas Civil Statutesj, which was amended in 1959 by Chapter 320, Acts of the 56th Legislature. Each of these enactments contained the following provisions:

" * * * it shall be the duty of

the county clerk to conduct the absentee voting in the election in accordancewith the general laws relating to absenteevoting. Paper ballots shall be used for absentee voting in all such elections, including elections in districts where votingmachines are used at regularpollingplaces."

The effect of these enactmentswas to revoke, for school trustee elections, the discretion conferredby Section 7 of Article 7.14, Election Code, and to maitethe use of paper ballots mandatory in absenteevoting in those eiections.

Under Section 7 of Article 7.14, the absentee voting in a school election,when conductedon votingmachines, was "ina public place within the boundaries of the school district. By virtue of the 1957 and 1959 enactments,the absentee voting in school trustee electionshad to be conducted in the office of the county c.lerk(Subdivision3 of Article 5.05, Election Code), except in those instanceswhere the county clerk appointed a deputy in townshaving a population of 4,000 Inhabitants or more as authorized in Subdivision 14 of Article 5.05. Against this background of existing law, the Legislature in 1961 amendedArticle 2745~ by adding Section la, quoted above. The emergency clause of the 1961 act stated that "the fact that existing laws require those desiring to cast absentee votes in school trustee elections to travel to the county seat and cast such votes at the office of the county clerk, results in great inconvenience to the voter, loss of time, and expense, * * * creates an emergency, * * *.I1 The body of the act provides that the trustee election "shall, the authority charged with holding by prcpar resolution or order, provide that votingmachines shal1 be used for casting of absentee votes at such elections, in accordancewith the provisions of Article 7.14, Section 7" of the Election Code. supplied.) (Emphasis

Our problem is to determinewhether the legislative., . T

Honorable J. W. Edgar,page 6 (~~-1218)

intentwas merely to restore the law as ithad existedprior to 1957,which gave the authorityholding the election the discretionto decidewhether absenteevoting was to be by votingmachines or by paper ballots, or whether the intent
was to make the use of votingmachinesmandatory in these elections.

While theword 'shall"ordinarily is of mandatory effect, the words "shall"and "may"are frequentlyused interchangeably,and the use of one or the other of thesewords in
a statute is not conclusiveof the questionwhether it should be construedas mandatory or discretionary. 39 Tex.Jur., Statutes, Sec. 15, and cases cited. If the Legislaturehad intended to make the use of votingmachinesmandatory and to deny to the authorityholding the electionany discretion in thematter, the provision for adoption of a resolution or order by the authorityholding the electionwould have been unnecessary,as the statute itselfwould have required the
use of votingmachines and adoption of a resolution to that effectwould have been a superfluousact. Moreover, the fact that this statutewas enacted as an amendment to Article 2745~ and was limited to trustee elections furtherpoints to an intentmerely to undo what had been done in Article 274%. It doesnot undertake to restrict the discretion of a school board to determinewhether votingmachines or paper ballots shallbe used for absenteevoting in other types of elections held by school districts, such as bond elections and consolidation elections. If the Legislaturehad intended to make the
use of votingmachinesmandatory for absentee voting in school trustee elections, It reasonably couldhave been expected to make their use mandatory in all school elections, since the voters in districtswhich did not include the county seat would be subjected to the same inconvenience, loss of time, and expense in traveling to the county seat to cast their absentee ballots in other types of school elections if the schoolboard chose to use paper ballots. We think the intent of the statute
was to leave the matter to the discretionof the school board,
as provided in Section 7 of Article 7.14, and to rely on their judgment to adopt themethod best suited to the particular district in the light of its geographical location and other factorswhich would dictate the wisdom of choosing the one or the othermethod.

The interpretationwe give to Section la of Article 2745~ is further borne out by the title of the act, which may be considered as a guide showing the legislative intend? 39 Tex.Jur., Statutes, Sec. 121, and cases cited. The title states that it is an act 'toadd a provision authorizingtheHonorable J. W. Edgar, page 7 (w-1218)

use of voting machines for absenteevoting for school trustees in countieswhere voting machines have been adopted." (Emphasissupplied.) The use of the word "authorizing" guggests that the statute is permissive, since the word requiring"would have been the more appropriate language to express an intent to.make the use of voting machines mandatory.

In conclusion, it is our opinion that the use of votingmachines is not obligatory either in school trustee elections or in other school district electionsheld within countieswhich have adopted votingmachines, and that the school district board has the discretion to determine whether votingmachines or paper ballots shall be used in elections ordered by the board.

SUMMARY

The use of voting machines is not obligatory in school electionsheld within countieswhich have adopted voting machines, and the school district board has the discretion to determine whether votingmachines
or paper ballots shallbe used in elections ordered by the board.

Yours very truly,

WILL WILSON Attorney General of Texas

MKW:ljb

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

Marvin Thomas Morgan Nesbitt Robert Lewis

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.