December 12, 1961 

Honorable J. W. Edgar Opinion No. ~~-1218 

Commissioner of Education 

Texas Education Agency Re: Whether voting machines must 

Austin, Texas be used in school elections, 

where the commissioners court 

of a county has adopted the 

use of voting machines as 

the method 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 voting machines 

and subsequently passes a resolution 

requiring the usage of such machines 

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 voting machine 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 shall be 

used at any and all elections and 

primary elections, municipal, county, 

district, or State held in that 
.\ 

-’ . 

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

county or any part thereof, designated 

for voting, registering and counting 

votes cast at such elections and primary 

elections, all school and bond elections 

also shall be conducted by the use of 

voting machines in those counties or 

parts thereof where such machines have 

been adopted, where the lawnspecifically 

makes their use obligatory. 

This statute does not give the commissioners court 

the authority to determine the types of elections in which 

voting machines shall be used. It merely gives the commissioners court the authority to designate the voting precincts 

in which voting machines are adopted for use, and the statute 

itself provides in what elections held within the designated 

territory the use of voting machines is mandatory. The order 

upon which your opinion request is based reads as follows: 

"It is ordered by the Commissioners' 

Court of Cameron County that the voting 

machine method of holding elections in 

Cameron County be and it Is hereby adopted." 

This we interpret as being a county-wide adoption of voting 

machines for use in all election precincts of Cameron County, 

rather than an unauthorized attempt on the part of the 

Commissioners Court of Cameron County .to require their use 

in all elections held within the county. We must look to 

Section 3 of Article 7.14 and other pertinent statutes to 

determine whether their use in school elections held within 

Cameron County is now mandatory. 

Section 3 of Article 7.14 provides that voting 

machines "shall be used at any and all elections and primary 

elections, municipal, county, district, or State" held within 

the precincts for which voting machines have been adopted, and 

further provides that "all school and bond elections also 

shall be conducted by the use of voting machines in those 

counties or parts thereof where such machines have been 

adopted, where the law specifically makes their use obligatory." 

(Emohasls suonlied.) 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 

specifically makes their use 

There is no provision in the school laws or the 

Election Code which would prohibit a school district from 

ccnducting its elections with available voting machines 

rented from the county, if the district chose to do so, or 

which would invalidate an election so held even though 

their use was not mandatory in that election. However, 

we can find no statute which 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 absentee voting 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 district however created or designated, 

in counties where voting machines 

have been adopted, the authority 

charged with 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 accordance with 

the provisions of Article 7.14, Section 

7, of the Acts of 1951, 52nd Legislature, 

'This language has not been construed by the Texas 

courts. In Anderson v. Crow, 260 S.W.2d 227, 230 (Civ.App. 

1953), involving an election contest attacking the legality 

of a school bond election held in Bexar County, at which 

voting machines had been used, for failure to maintain a 

voting place in each election precinct in the district, the 

court observed that the school district had been advised that 

there was some question of the legality of an election in 

Bexar County conducted without the use of voting machines 

(the Commissioners Court 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 

elections held 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 following provisions, which have remained unchanged 

since 1939: 

"Sec. 7. Absentee Voting. In 

counties in which voting machines are 

adopted for use, the authority charged 

with holding an election shall within 

Its discretion determine by proper 

resolution and/or order whether or not 

votlng,machines shall be used for the 

casting of absentee votes at such election, and if it be determined by such 

authority that voting machines shall 

be used for the casting of absentee 

votes at such election, a voting machine 

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 secretary and if a school 

district or other election, in a public 

place designated within 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 determine whether voting machines 

or paper ballots shall be used for absentee voting. 
. . 

. - 

* 

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

In 1957 the Legislature passed a law relating to 

elections for county school trustees and trustees of school 

districts (Chapter 262 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 accordance with the general laws relating 

to absentee voting. Paper ballots shall 

be used for absentee voting in all such 

elections, including elections in districts where voting machines are used 

at regular polling places." 

The effect of these enactments was to revoke, for school trustee 

elections, the discretion conferred by Section 7 of Article 7.14, 

Election Code, and to maite the use of paper ballots mandatory in 

absentee voting in those eiections. 

Under Section 7 of Article 7.14, the absentee voting 

in a school election, when conducted on voting machines, was 

"in a public place within the boundaries of the school district. By virtue of the 1957 and 1959 enactments,the absentee 

voting in school trustee elections had to be conducted in the 

office of the county c.lerk (Subdivision 3 of Article 5.05, 

Election Code), except in those instances where the county 

clerk appointed a deputy in towns having 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 amended Article 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 voting machines shal 1 be used for casting of absentee votes at such elections, in accordance with the provisions 

of Article 7.14, Section 7" of the Election Code. 

supplied.) 

(Emphasis 

Our problem is to determine whether the legislative 
., 

. T 

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

intent was merely to restore the law as it had existed prior 

to 1957, which gave the authority holding the election the 

discretion to decide whether absentee voting was to be by 

voting machines or by paper ballots, or whether the intent 

was to make the use of voting machines mandatory in these 

elections. 

While the word 'shall" ordinarily is of mandatory 

effect, the words "shall" and "may" are frequently used interchangeably, and the use of one or the other of these words in 

a statute is not conclusive of the question whether it should 

be construed as mandatory or discretionary. 39 Tex.Jur., 

Statutes, Sec. 15, and cases cited. If the Legislature had 

intended to make the use of voting machines mandatory and to 

deny to the authority holding the election any discretion in 

the matter, the provision for adoption of a resolution or 

order by the authority holding the election would have been 

unnecessary, as the statute itself would have required the 

use of voting machines and adoption of a resolution to that 

effect would have been a superfluous act. Moreover, the fact 

that this statute was enacted as an amendment to Article 2745~ 

and was limited to trustee elections further points to an 

intent merely to undo what had been done in Article 274%. It 

does not undertake to restrict the discretion of a school 

board to determine whether voting machines or paper ballots 

shall be used for absentee voting in other types of elections 

held by school districts, such as bond elections and consolidation elections. If the Legislature had intended to make the 

use of voting machines mandatory for absentee voting in school 

trustee elections, It reasonably could have been expected to 

make their use mandatory in all school elections, since the 

voters in districts which 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 school board 

chose to use paper ballots. We think the intent of the statute 

was to leave the matter to the discretion of the school board, 

as provided in Section 7 of Article 7.14, and to rely on their 

judgment to adopt the method best suited to the particular 

district in the light of its geographical location and other 

factors which would dictate the wisdom of choosing the one or 

the other method. 

The interpretation we 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 'to add a provision authorizing the 
Honorable J. W. Edgar, page 7 (w-1218) 

use of voting machines for absentee voting for school trustees in counties where voting machines have been adopted." 

(Emphasis supplied.) 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 

voting machines is not obligatory either in school trustee 

elections or in other school district elections held within 

counties which have adopted voting machines, and that the 

school district board has the discretion to determine whether 

voting machines or paper ballots shall be used in elections 

ordered by the board. 

SUMMARY 

The use of voting machines is not 

obligatory in school elections held 

within counties which have adopted 

voting machines, and the school district board has the discretion to 

determine whether voting machines 

or paper ballots shall be 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.