THE ATTORNEY GENERAL 

OF TEXAS 

August 2, 1963 

Honorable Joe Resweber 

County Attorney 

Harris County 

Houston, Texas 

Dear Sir: 

Opinion No. C- 122 

Re: Whether an electronic 

type voting machine is 

legal under State law 

and related question. 

You state that your office has been requested by the 

County Judge of Harris County to secure the opinion of the Attorney General on the following two questions: 

(1) Can Harris County mix 

and on what basis? 

voting machines 

(2) Is an electronic type voting machine 

legal under the State law? 

Section 1 of Article 7.14, 

__ ^ . . 

Vernon's Texas Election Code, 

proviaes for examlnatlon ana approval of voting machines by the 

Secretary of State. Upon approval of a machine, the statute provides that "machines of its kind may be adopted for use at elections 

and primary elections as herein provided." Sections 3 and 5 of 

Article 7.14, as amended by S.B. 61, Chapter 424, Acts of the 58th 

Legislature, 1963, which will become effective on August 23, 1963, 

read as follows: 

“Sec. 3. Adoption by commissioners court. 

The commissioners court of any county In the 

state may adopt for use In elections in at least 

three of the larger election precincts in voting 

strength In the 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 election precincts In the county as It 

may deem advisable. . . .' 

-606- 
Hon. Joe Resweber, page 2 (C- 122 ) 

“Sec. 5. Providing voting machines. The 

commissioners court of a county which has adopted voting machines for that county or any portion 

thereof, shall as soon as practicable, and In no 

case later than six months after adoption thereof, 

provide for each election precinct designated 

one or more approved voting machines in completed 

working order, and shall thereafter preserve and 

keep them In repair.” 

We agree with the conclusion you have reached in your 

brief that the commissioners court may provide more than one 

kind of machine for use In the county, the only limitation being 

that each kind must have been approved by the Secretary of State. 

At the present time, three kinds or makes of machines have been 

approved by the Secretary of State. In our opinion, there is 

nothing In the law to prevent Harris County from acquiring machines 

of all three makes. Nor is there any legal Impediment to use of 

more than one kind or make in a particular precinct. It might be 

debatable whether the mixing of machines would or would not be 

undesirable from a practical standpoint, but from a legal standpoint there Is no reason why It could not be done. 

Your second question is whether an electronic type 

voting machine is legal under the State law. Section 2 of Article 

7.14 sets out certain requirements which a voting machine must 

meet In order to be approved, but does not specify that the operation of the machine must be based upon any particular principle. 

No principle, mechanical, electrical, or otherwise, Is forbidden, 

so long as the machine complies with the statutory requirements. 

However, when Article 7.14 Is read In its entirety, it is seen 

that the type of voting machine authorized for approval and adoption 

by that statute is a machine upon which votes are registered and 

automatically counted by means of registering counters constructed 

Into the machine. See Article 7.14, Sections 10, 12 and 18. The 

three makes of machines which have been approved by the Secretary 

of State are of this type. 

There Is also a type of voting machine or ballot-marking 

device on the market by which a ballot in the form of a punch-card 

Is Inserted into the machine and the voter marks his ballot by 

punching a slot opposite the names of candidates or the statements 

of propositions to indicate how he wishes to vote. The ballots from 

the various precincts are automatically counted and tabulated on 

electronic data-processing machines at a central location. We 

understand your second question to relate to this type of “voting 

machine.” The Secretary of State thus far has not approved any 

machine or device of this type for use in elections in this State, 

-607- 
Hon. Joe Resweber, page 3 (C-' 122, ) 

and we are of the opinion that Article 7.14 does not authorize 

approval of this type of 'machine. A bill (H,B. 111) was lntroduced at the last session of the Legislature to authorlze,approval 

and adoption of this type oft equipment, but the bill died incommlttee In the ,Senate after having passed,the House. We come, 

then, to the question of whether this type of equipment may lawfully be used without the approval of the Secretary of State. 

Section 1 of Article 7.14 contains the following provision: 

8, 

. . .Any form of voting machine not approved 

as herein set out, or which has not been examined 

by voting machine examiners and reported on pursuaht to law and its use specifically authorized 

by law, cannot be used at any election or primary 

election in the State of Texas." 

If th ballot-marking device to be used in conjunction with dataproce ii.3 ing equipment Is considered to be a form of voting machine 

within the meaning of Article 7.14, this statute would expressly 

prohibit Its use, since It has not been approved by the Secretary 

of State and could not lawfully be approved under the authority 

conferred on him by Article 7.14. There is no statute authorizing 

use of any other type of machine or equipment. The only authorized 

methods of voting In this State are by use of paper ballots to be 

marked and counted as provided In Articles 6.06 and 8.19 of the 

Election Code and by use of voting machines which have been approved and adopted as provided in Article 7.14. Without considering 

the question of whether a valid election could be held under any 

circumstance by any other method, it Is sufficient for the purpose 

of this opinion to state that the holding of an election by use 

of any other method could be enjoined in advance of its holding, 

and the expenditure of county funds for any type or kind of voting 

machine not authorized for adoption under Article 7.14 would be 

Illegal. Clancy v. Clough 

ii$?E%%v~~~e"~~~~~y~" 

b 

f 0 S.W.2d 560 (Tex.Civ.App. 1928); Davis 

Tex.Clv.App. 1948); Galveston, H.m. 

167 S.W.2d 305 (Tex.Civ.App. 1943, error ref. 

w.0.m.). 

SUMMARY 

A county which has adopted voting machines 

may use more than one kind or make of machine 

if each kind used has been approved by the Secretary of State in accordance with the procedure 

set out in Article 7.14 of the Election Code. 

-608- 
Hon. Joe Resweber, page 4 (C- 122 ), : 

The type of voting machine or ballot-marking 

device by which the voter indicates his choice 

by punching slots In a ballot card, and the ballots 

are counted and tabulated on electrfiic dataprocessing equipment, is not authorized for use ,' 

in elections in this State. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

By 

* 

TimfceeL 

Mary . Wall 

Assistant 

MKW:jh:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Frank Booth 

Bob Flowers 

Ernest Fortenberry 

John Reeves 

APPROVED FOR THE ATTORNEY GENWAL 

BY: Stanton Stone 

-6O’+