. 

.vA%;~I:13S~Kt3 1:.wlaM 

AUSTIN 11. -,kXAS 

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Am‘>YSm- ~a.:zYBcwAL 

October 16, 1963 I 

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Honorable Wallace Shropshlre 

County Attorney 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 proclamation haa 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 o f 

re~asional Dlsthe 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 officials will 

handle each of the authorized elections, is It 

legally permissible and proper under our Election Laws to treat the several matters as one 

Special Election, with one ballot encompassing 

the candidates for each of the aforesaid public 

offices and the Constitutional Amendments, In 

the same way 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'at such a time, that this election 

would be called for Nciv. 9, 1963 also. This 

petition w?uld~ Tall for the following questlo,ns-'to be passed~'upon by the qualified voters: 

is neXi 

I~t is conceded that a se arate ballot 

to vote upon Items.3 and & of paragraph 5. Ijowever,' If the answer to the question 

raised in .paragraph 4 la in the affirmative, Is 

It then legally permissible and proper under our 

Election Laws to place Items 1 and 2 of the .Junlor 

College Special Election, described above, on the 

same ballot with the ,Constitutlonal Amendments and 

candIdat& for the offices named herein?" 

For or Against creatlng'the Junior 

College District. 

For an Initial Board 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 court will 

canvass the returns and the county clerk will 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 

.held at-the same ,tlme and place, Att'y Gen. Ops. 3i 

be 

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 

elections may be conducted by the same election officers. 

Attly,Gen. Ops. ~0-2853 and O-6496, supra, and Op. v-1367 

(195s). 

~Only resident qualified electors who own 

taxable property which 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 county will be eligible to vote. 

Prior opinions of .thls office have held that 

special elections.may be conducted at the same time and 

place as general elections, other special elections, or 

party primaries, but that they should be c,onducted as 

separate elections with separate ballots, ballot boxes; 

poll lists, etc, There are compelling reasons for requiring that the election supplies and records (either as 

to some of them or as to all, depending on the nature of 

the elections) should be furnlshed and kept separately 

where the elections are not paid for by the same authority, 

are not conducted by the'same officers, or are not 

canvassed by 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-elections where one or more of these factors was 

present, except Opinion o-2853, written in 1940, and two 

later opinions, O-4872 (1942),and O-6496 (1946), which 

cite and.follow o-2853 without further discussion. The 

elections,,involved In these three opinions were: .the 

general election for state and county officers and a 

county-wide'local option liquor election (O-2853); the 

general e3.ection .and a 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 .held that the elections could be 

conducted by the same'offlcers, but that separate ballots 

should be used and the voted ballots should be deposited 

in separate ballot boxes, so,that in the event of a contest 

of one of the elections the'challenged voters' ballots In 

the other election would not be subject to.exposure. It 

further held that the poll lists, tally lists, and~returns 

of each.electlon would also necessarily have to be separate 

and distinct. The opinion recognized that failure to use 

separate balLots and ballotboxes would not Invalidate 

the election, and that neither election would 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 separate was, therefore, solely for the protection 

of the secrecy~of the balloti 

Your oplnion,request takes note of the fact that 

It will be,necessary tom keep a separate poll 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 proposltlons will be furnished ballots enabling them to do so. 

Accordingly, this. opinion is limited $0 the Legality and 

propriety of placing one one ballot form all.the other 

matters to be voted on In these special elections. 

Article'VI; Section 4 of the 'Texas Constitution 

provides that ln.all~electlons the vot,e shall be by ballot. 

This provision Is construed to require a secret ballot, 

and the f~ramework of .our election procedures Is built upon 

the concept thatthe voter's right to a secret ballot 

should be protected. ~.The' Constitution does not guarantee 

absolute secrecy, however, and the Legislature may determine, 

within llnilts, what the public policy of the State will be 

where the protection of the secrecy of the ballot~comes 

into conflict with other considerations whlch,are In promotion 

of the public interest. Thus, In an election contest the 

Legislature may authorize the court to permit examination 

of the ballots of disqualified voters, in order to deduct 

their votes. Whenever an election contest arises In any 

election where more than one office or proposition Is 

voted on, the examination of ballots In the contest proceeding permits exposure of how challenged voters had voted 

in the traces ,and issues not being contested. Nevertheless, 

the Leglslature.has expressly provided that all races shall 

-78s 
, 

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

be placed on the same ballot.ln general ,elections and in 

primary elections. The publla.pol$cy of 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-standing practioe.of placing propqsed 

constPtutiona1 amendments on the general election ballot, 

where they are to be voted’on at the same timqis not 

expressly authorized by 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 constitutional amendments. 

As previously indicated, the former opinions 

deallng,with joint eleotlons have not been based on express 

statutory provisions, authorizing the ~holdlng of joint elections and regulating their conduct. A few isolated statutes 

provide for the holding,, at the same time and place, of two 

elections ~whlch .are called and q3nvassed by separate authorlties (e.g.; Arts. 2676 ana 2774b, V.C 3. ) ,. btit otherwise 

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 county board of school trustees, the board of education, .board of trustees or other governing boapa of any school 

district, or the board of regents, board of 

trustees or other governing board of any 

junior college district, regional college 

district OP other type of,co&lege district, 

is to be held on the same day and wlthln all 

or part ofthe same territory asany other 

of .the eleotions wherein enumerate~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) 

elections may 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 agreement may 

provide for use of a single ballot form at 

each polling place, to contain all the offices to be voted on at that polling place, 

,or for separate ballot forms which 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 'or political subdivision shall. 

appear on the same ballot, One ~set of electlonofficers may be appointed to conduct 

the joint electibn,.and 'any person otherwise 

qualified who 'is a"rdii$enf of elther‘of the 

districts. or political~subaivfslons holdfng 

.the election shall be ‘el’lgible to serve as 

‘an e~e&ion officer. 

.,’ sheets, 

Poll lists; tally 

and return.forms for’the various 

elections may bs combined In’any manner 

convenient and',adequate to record and 

report the. results of each electlon, and 

one set of ballot boxes and one stub box 

may be used for receiving all ballots and 

ballot stubs for the joint election. Returns 

on joint or separate forms may be made to, 

and the canvass made by, each officer, board 

or body designated by law to receive and canvass ‘the,returns of-each election, or one’of 

such officers, boards or bodies may be designated to receive and canvass’ the returns for 

the joint election and to reportthe results 

of each electIon to the proper authority. 

Where the,counted ballots for two or more of 

the elections are deposited in a single ballot box, the box containing the counted ballots shall be returned to the officer or 

board designated in the agreement, which shall 

be an officer or board designated by law to 

receive and,preserve the counted ballots for 

one of the elections zonstitutlng a part of 

the joint election." 

-790- 
. . 

Hon. 'Wallace Shropshire, page 7 (c-162) 

Article 2746~ expressly permits 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 --protection of 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 ,express statutoryrequirements 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 canvassed by 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 shall be 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 m 4 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 

separate ballots 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 

constitutional amendments, 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- 

'lege district are called for the same 

day, the.four special elections may be 

held jointly by the same, election officers, and all the matters on which all 

qualified electors of the county are 

eligible to vote may be placed on a 

single ballot form. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

Assistant 

MKW:'ms:sj 

APPROVED: 

3PINION COMMITTEE 

W, V. Geppert, Chairman 

J. C. Davis 

C. L. Snow 

Fred Ward 

APPROVED FOR THE ATTORNEY GENERAL 

By: Stanton ~Stone 

-792-