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**Am ‘** **>YSm- ~a.:zYBcwAL**  October 16, 1963 **I .I-:**  **i. ;h;.**  **,,,::)**

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HonorableWallace Shropshlre CountyAttorney of Travis County Austin, Texas,
Opinion NO. c-162

Dear Sir: Re: The number of sets of ballot forms, ballot boxes,,.

returns, etc., required for.the special elections to be held In Travi.6

County on November 9, 1963,.

You have asked our office for an official oplnion on the questions propounded ln.the following letter which you have received from the Travis County Elect%on Board:
“(1) A proclamation has been Issued by the Governor’s office calling a Special Election to be held on Nov. 9, 1963 to vote upon certain amendments to the State Constitutlon.

“(2) A proclamationhaa been Issued by the Governor’s office calling a Special Election to be held on Nov. 9, 1963 to elect
a Congressman for the 10th Con Crlct for the unexpired term ofre~asionalDlsthe Hon. ,Homer Thornberry.
“(3) A proclamation has been lsaued by the Governor’s office calling a Special Election to be held on Nov. 9, 1963 to elect

a State Representative for the 55th Repreeentatlve District, Place 4, for the unexpired term of the Hon.’Jack Rltter, Jr.Hon. Wallace Shropshire, page 2 (c-162)

"(4) Since all of the above Special Elections fall on the came day and since the same General and-special Election officialswill handle each of the authorized elections, is It legallypermissibleand proper under our Election Laws to treat the severalmatters as one Special Election,with one ballot encompassing the candidates for each of the aforesaid public offices and the ConstitutionalAmendments, In the sameway that a General Election ballot encompasses candidates for office and ConstltuMona1 Amendments on the same ballot, same election returns, etc.?
“(5) Further, a delegation of citizens has heretofore appeared before our County Commissioners" Court and stated their Intention of filing a pe,$ltlon to,call a Special Elec- ~tlon to creat@~a Travis County Junior College Dlstri'ct'atsuch a time, that this election would be called for Nciv.9, 1963 also. This petitionw?uld~

Tall for the following questlo,ns-'to

be passed~'upon

by the qualified voters:

is neXi I~tis conceded that a se arate ballot

to vote upon Items.3 and & of paragraph 5. Ijowever,' If the answer to the question raised in .paragraph4 la in the affirmative, Is It then legallypermissible and proper under our Election Laws to place Items 1 and 2 of the .Junlor College Special Election, described above, on the
sameballot with the ,Constitutlonal Amendments and candIdat& for the offices named herein?"

For or Against creatlng'theJunior College District. For an InitialBoard of 7 Trustees. For or Against the levy of a Malntenance Tax, For dr Against the Issuance of Bonds. and levying a tax In payment thereof.

Each of the above-mentioned elections will be held at the expense of the county. The commissioners courtwill
canvass the returns and the county clerkwill have the custody

-786-Hon. Wallace Shropshire, page 3 (c-162)

of the 'voted

,. ballots In each election. While there is no

_ __. . . express statutory autnorlty for nolaing tnese electlons Jointly, it Is well established that they may ,lawfull .heldat-the same ,tlmeand place, Att'y Gen. Ops. 3ibe O-2 53 (1940),O-6496 (1945),W-728 (1959). Since the recent amendment of Articles 3.01, 3.02, and 3.0% of the Texas Election Code (Sections.8 and 11 of Chapter 424, Acts of the 58th Legislature, 1963,which became effective
on August 23, -1963),it Is also clear that all of these electionsmay be conductedby the same election officers. Attly,Gen. Ops. ~0-2853and O-6496, supra, and Op. v-1367 (195s).
~Onlyresident qualified electorswho own taxable propertywhich has been duly rendered for taxatjon In Travis County will be ellglble to vote on the junior college'tax levy and bond:issue propositions. Tex. Conet. Art. VI, Sec. 3a; V.A.T.S. Election Code, Art. 5.03, On all other matters to be voted on at these elections, all qualified electors of the countywill be eligible to vote.

Prior opinions of .thls office have held that special elections.maybe conductedat the same time and place as general elections, other special elections, or party primaries, but that they shouldbe c,onducted as separate electionswith separateballots,ballot boxes; poll lists, etc, There are compelling reasons for requiring that the election supplies and records (eitheras to some of them or as to all, depending on the nature of the elections) should be furnlshedand kept separately where the elections are not paid for by the same authority,

are not conductedby the'same officers, or are not canvassedby the sa.me board, where the qualifications of the voters are different, or where different officers have custody of the voted ballots. All of the prior opinions involve-electionswhere one or more of these factorswas present, except Opinion o-2853,written in 1940, and two later opinions, O-4872 (1942),andO-6496 (1946),which cite and.follow o-2853 without furtherdiscussion. The elections,,involved In these three opinionswere: .the general election for state and county officers and a county-wide'localoption liquor election (O-2853); the general e3.ection

.anda special election for State Senator (O-4872);a special election on a constitutional amendment and a county-wide special election for tax reallocation (O-6496).

-m-Hon. Wallace Shropshire,page .4(C-162)

Opinion O-2853.heldthat the elections couldbe conductedby the same'offlcers,but that separateballots shouldbe used and the voted ballots shouldbe deposited in separateballot boxes, so,that in the event of a contest of one of the elections the'challengedvoters' ballots In the other electionwould not be subject to.exposure. It further held that the poll lists, tally lists, and~returns of each.electlonwould also necessarilyhave to be separate and distinct. The opinion recognized that failure to use separatebalLots and ballotboxes would not Invalidate the election, and that neither electionwould be Invalid If it was otherwise cdnducted so as to secure a fair and honest election. The reason for requiring that the ballots be kept separatewas, therefore, solely for the protection of the secrecy~of the balloti

Your oplnion,requesttakes note of the fact that It will be,necessary tom keep a separatepoll list of the persons voting on the junior college tax and bond proposltlons, and that the ballots must be prepared In 6uch.a
manner that only those eligible to vote on these proposltlonswill be furnishedballots enabling them to do so. Accordingly, this. opinion is limited $0 the Legalityand propriety of placing oneone ballot form all.the other matters to be voted on In these special elections.

Article'VI; Section 4 of the 'TexasConstitution provides that ln.all~electlonsthe vot,eshall be by ballot. This provision Is construed to require a secretballot, and the f~ramework of .ourelectionprocedures Is built upon the concept thatthe voter's right to a secretballot shouldbe protected.~.The' Constitution does not guarantee absolute secrecy,however, and the Legislaturemay determine, within llnilts,

what the public policy of the State will be where the protection of the secrecyof the ballot~comes into conflictwith other considerationswhlch,are In promotion of the public interest. Thus, In an election contest the Legislaturemay authorize the court to permit examination of the ballots of disqualifiedvoters, in order to deduct their votes. Whenever an election contest arises In any electionwhere more than one office or proposition Is voted on, the examinationof ballots In the contestproceedingpermits exposure of how challengedvoters had voted in the traces,andissues not being contested. Nevertheless, the Leglslature.hasexpresslyprovided that all races shall

-78s,

Hon. Wallace Shropshlre,page 5 (c’-162)

and in

be placed on the sameballot.ln general ,elections primary elections. The publla.pol$cyof the State, as declared by the Legislature, clearly does not forbid use of a ballot form which permits exposure of~the’ uncontested portion of the ballot lngeneral.and primary elections.

The long-standingpractioe.ofplacing propqsed constPtutiona1amendments on the general electionballot, where they are to be voted’on at the same timqis not expresslyauthorizedby statute,but the Leglslature~ has sanctioned It by failing to prohibit it. This practice likewise cannot be .taken as violative of public policy because of exposure which would result from a contest arising out of either the general election or the special election on the constitutionalamendments.

As previously indicated, the former opinions deallng,with joint eleotlonshave not been based on express statutoryprovisions, authorizing the~holdlngof joint elections and regulating their conduct. A few isolated statutes provide for the holding,, at the same time and place, of two elections~whlch.arecalled and q3nvassedby separateauthorlties (e.g.;Arts. 2676 ana 2774b, V.C3. ),. btitotherwise there is no express ~statutory regulation of Joint elections except for Article 27460,V,C.,S,, .whici? was enacted in 1959. This statute.

reads as follows:..~.,

~!!Art. 2746~. Joint eleotlons of governing bodies of school aistriots

“Seotion 1. Whenever an election for members of the countyboard of school trustees, the board of education, .boardof trustees or other governing boapa of any school district, or the board of regents,board of trustees or other governingboard of any junior college district, regional college district OP other type of,co&legedistrict, is to be held on the same day and wlthln all
or part ofthe same territoryasany other of .theeleotionswhereinenumerate~d, the : various offioers,boards or bodies charged with the dUty of appointing the election officers, providing the supp$$es, oanvasslng the returns, and paying the expenses of such. .

Hon. Wallace Shropshire,page~6 (,C-162)

electionsmay agreeto hold the elections jointly and may agree upon the method for allocating the expenses for the joint election. Resolutions reciting the terms of the agreement shall be adopted by each of the participating boards or bodies. The agreementmay provide for use of a single ballot form at each polling place, to containall the offices to be voted on at that polling place, ,or for separateballot formswhich may combine two or more of the sets of county or 'district offices to be voted on, provided that all of the offices and candidates for each district 'orpolitical subdivision shall. appear on the sameballot, One ~setof electlonofficers may be appointed to conduct the joint electibn,.and 'anyperson otherwise qualifiedwho 'isa"rdii$enf of elther‘of the districts.

or political~subaivfslonsholdfng .theelection shallbe ‘el’lgible to serve as ‘ane~e&ion officer. .,’ sheets, Poll lists; tally

and return.formsfor’thevarious electionsmay bs combined In’anymanner convenient and',adequate to recordand report the.

results of each electlon,and
one set of ballot boxes and one stubbox may be used for receivingall ballots and ballot stubs for the joint election. Returns
on joint or separate forms may be made to, and the canvassmade by, each officer,board
or body designated by law to receiveand canvass ‘the,returnsof-each election,or one’of such officers, boards or bodies may be designated to receive and canvass’ the returns for the joint electionand to reportthe results of each electIon to the proper authority. Where the,countedballots for two or more of the elections are deposited in a singleballot box, the box containing the countedballots shallbe returned to the officer or board designated in the agreement, which shall be an officer or board designatedby law to receive and,preserve the countedballots for
one of the electionszonstitutlng a part of the joint election."

-790-. .

Hon. 'WallaceShropshire, page 7 (c-162)

Article 2746~ expresslypermits use of a single ballot form and set of ballot boxes or of separate forms and boxes, at the discretion of the boards charged with the duty of furnishing the supplies. The obvious purpose of the statute is to permit the election authorities to prepare the ballots and to provide for their handling in, the manner best suited to the orderly, efficient conduct of the electiong. The. Legislature,'by the enactment of this statute, has declared the public policy~of this State in joint elections with respeot to the balancing of the two opposing considerations--protectionof the secrecy of the ballot on the one hand and the efficient, orderly and economical conduct of the election on the other hand. If this statute had been in existence in 1940, we daresay that a different result would have been reached in Opinion o-2853.

We think there can be no question that the Legislature could validly authorize the joint conduct of these four special elections as a combined single election. We also concur in'the former rulings that two or more elections may be held at the same time and place withoutexpress statutory authorization, provided the procedures comply with ,expressstatutoryrequirements pertaining to each election and do not violate the spirit and policy of the election laws,.Where the elections are held by the same officers and are canvassedby the same authority; and the same officer has custody of the voted ballots in each election, it is our opinion that the authority charged with the duty of furnishing the supplies for the elections may determine whether separate or combined forms shallbe used for the ballots, the poll and tally lists, and the returns, and, agreeably with ts decision on the form of the ballot, may determine how m4 sets of ballot boxes shall be used.

We hold that the Travis County Election Board may determine, within its discretion,whether to use a single ballot form for all matters to be voted on at the special elections to be held on November 9, 1963 (other than the junior college tax and bond propositions), or to use separateballots for each election, or to combine the ballots for the different elections in such other manner as in its judgment will be most appropriate for the efficient conduct of the election.-. .

Hon.Wallace Shropshire,page 8 (c-162)

SUMMARY

Where a special election for voting on constitutionalamendments, a special election to fill a vacancy in the office of United States Representative,a special election to fill a vacancy in the office of State Representative,and a special election to create a county junior col- 'legedistrict are called for the same day, the.four special electionsmay be held jointly by the same, election officers, and all the matters on which all qualified electors of the countyare eligible to vote may be placed on a singleballot form.

Yours very truly,

WAGGONER CARR Attorney General

Assistant MKW:'ms:sj

APPROVED:

3PINIONCOMMITTEE

W, V. Geppert, Chairman J. C. Davis C. L. Snow Fred Ward

APPROVED FOR THE ATTORNEY GENERAL

By: Stanton~Stone

-792-