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THEATTORNEYGENERAL
OF TEXAS

AUSTIN 11. TEXAS

W ’ILL WILSON AlTORNEy GENERA=. March 27, 1961

Honorable Joe Resweber OpinionNo. W-1026 County Attorney Harris County Courthouse Re: Is itmandatory that Houston 2, Texas "watchers"of elections in countiesusing voting machines be qualified voters of the election precinct In which they Dear Mr. Resweber: are named to serve?

You have requested an opinion of this office as to whether It Is mandatory that "watchers"of elections in countiesusing votingmachines be qualified voters of the electionprecinct In which they are named to serve. Section 24 of Article 7.14 of the V.A.T.S. Election Code,providing for votingmachines reads, in part, as follows:

. But each political party concerned in
an election is entitled to name one watcher for each voting precinct where votingmachines are used, saidwatcher to be recognizedby the presiding officer of that precinct upon the presentation of a certificate signedby the County Chairman of that political party, and any candidate for a State office, the State Senate, any candidate for Representative in the House of the Legislature of Texas, or any candidate for District Judge, or any one-fifth (l/5) of the candidates for any county offices,
or any one-fifth (l/5) of the candidates for precinct offices; or any candidate for mayor, or any candidate for city commissioner in municipalities, or any three (3) candidates In a school election, or the proponents or the opponents of a bond issue,may name one watcher for each precinct In an election or primary election for each precinct where voting machinesHonorable Joe Resweber, Page 2 (~~-1026)

are used. Any candidate for the United States Senate or Representative in the House of the United States Congressmay name one watcher for each electionprecinctwhere a votingmachine is used. The candidatedesiring representationby a watcher shall sign a certificate setting out the name of the person, the number of the precinct where such watcher is to serve, such certificate to bear the signature of the candidate or candldates entitled to representatlon, togetherwith the signature of the bearer. The presiding officer of ,theelectionmust require a countersignatureand preserve the certificate of the bearer to make certain he is the identicalperson referred to in the certificatebut cannot for any other reason refuse to permit such watcher to serve. For their serviceselection officials~and employees shallbe paida~sum to be set by the authority chargedwith holding the election or primary election,but not less than the amount set now by law and not more than Ten Dollars ($10)per day, provided,however that no election official shall be paid more thanthe pro-rata part of two (2)hours overtime after the polls are closed. Watchers, a necessary adjunct to an electionwith votingmachines, may be paid by the interest they represent,but not to exceed Ten Dollars ($10)per day, provided,however, that the authorityholding such election shall not pay for the services of such watchers."
Section 25 of Article 7.14 of the V.A.TiS. Election Code reads, In part, as follows:

I,

. . . The provisions of this Act shall apply only in counties in which such votingmachine is adopted for use at elections.

1,

. . . "The term 'watcher'is similar to supervisor inmeaning but he is an official of the election in this Act. 492, art. 79."

Acts 1951,,

52nd Leg., p. 1097, ch.

First, we would like to state that we believe the provisions of Section 24, Article 7.14, relating to "watchers" and their qualifications in countiesusing votingmachinesHonorable Joe Resweber, Page 3 W-1026)

are crystal clear and there is no requirement that the "watchers" In countieswhere votingmachines are used be qualifiedvoters of the electionprecinct In which they
are named to serve. The general rule of construction Is that a statute that is plain and unambiguous, if construedat all, will be Interpreted literally. Exceptions, exemptions or llmltatlonsmay not ordinarilybe read into
a statute,nor may conditions,restrictions or requirements, be read out of it. And where a literal construction of a provision does not bring it Into conflictwith any other part of the Act, itwill be given themeaning which its reading Imports. 39 Tex. Jur. 180, Statutes, Sec. 95.
However, the basic question involved In the answer to your question Is whether It was the Intent of the Leglslature to require "watchers"of elections In countiesusing votingmachines to have the same qualificationsas supervisors in electionswhere votingmachines are not used.

In determining the intent of the Legislature,we think it is important to study the history of Section 24 of Article 7.14 of the Texas Election Code. The original laws pertalning to votingmachines were enacted by the Forty-first Legislature, Fourth Called Session, 1930, Chapter 33, Page 50. The pertinentprovisions of Section 24 regarding "watchers" in countiesusing votingmachines read In the original enactment the same as they read today. In 1937, the Legislature amended certainparts of the statutes on voting machines but the provisions of Section 24 which are here under consideration remained the same although otherprovisions of those sectionswere amendedby the Acts of the Forty-fifth Legislature, Second Called Session, 1937, Chapter 52, Page 1953. In 1945, certainprovisions of Section 24 were amended but again the Legislature failed to amend the provisions of Section 24 pertaining to "watchers"that we are here considering. (Acts of the 49th Leg., 1945, ch. 280, p. 446).

It can readilybe seen by comparing the wording of the original statuteand the two amended statuteswith the present Section 24, quoted earlier In this opinion, that there
was absolutely no change in the wording of the provisions concerning "watchers"in countieswhere votingmachines are used. If it had been the intent of the Legislature to setup additional qualifications or disqualificationsfor "watchers" In countiesusing votingmachines,we think the Legislature would have acted, particularlywhen other provisions of the
same sectionwere under considerationand re-study.Honorable Joe Resweber, Page 4 (~~-1026)

As stated in paragraph 2, Section 25, Article 7.14, quoted above, the Articles relating to votingmachines are special statutes, the provisions of which are to apply only in counties in which votingmachines are adopted for use at elections. There is another firmly establishedprinciple of statutory construction that where an enactment contains
a specificprovisionwhich Is at variancewith a general provision. the soecificorovislon is treated as an exceotlon to the general and controls the subjectmatter which comeswithin its terms. City of Austin v. Cahill, 99 Tex. 172, 88 S.W. 542 (1905);Gabbertv. City of Brownwood, 176 S.W.2d 344 (Clv.App.1943, error ref.), It therefore, follows that the specificprovisions of Section 24 of Article 7.14 relating to "watchers"In countieswhere votingmachines are used controls over the general statutes relating to supervisors in counties where votingmachines are not used.

As set out In Section 24, Article 7.14, the only requirement that "watchers"in countieswhere votingmachines are used must meet is the requirement that a certificate,properly prepared as set out by Section 24, Article 7.14, be presented to the presiding officer of the election in the precinct where the "watcher"is to serve and where votingmachines are used. There Is no provision In this Article, eitherby impllcation or otherwise, that the "watchers"be qualifiedvoters In the precinct in which they are named to serve. Therefore, it is the opinion of this department that "watchers"of elections in countiesusing votingmachines are not required to be qualified voters of the electionprecinct in which they are named to serve.

SUMMARY

In countieswhere voting machines are used, the provisions of Section 24, Article 7.14 of the V.A.T.S. Election Code relating to “watchers” control. Therefore, "watchers"of elections In counties using votingmachines are not required to be qualifiedvoters of theHonorable Joe Resweber, Page 5 (WW-1026)

electionprecinct in which they are named to serve, there being no such qualification in the law.

Yours very truly,

WILL WILSON Attorney General of Texas

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APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

W. Ray Scruggs Raymond V. Loftin, Jr. John Reeves William E. Allen

REVIEWED FOR THE ATTORNEY GENERAL

BY: Morgan Nesbitt