.- . 

EA ORNEY GENERAL 

OF ?IrEns 

WLL WILSON 

ATTORNEYGENERAL 

Ausnnr 1,. TEXAS 

May 2, 1960 

Honorable Cecil M. Pruett Opinion NO. ~~-831 

County Attorney 

Hutchinson County Re: Whether refusal by an. 

Borger, Texas election judge to deliver a ballot in the 

Democratic primary to 

a person who refuses to 

allow the judge to stamp 

"Democrat" on his poll 

tax receipt, as provided 

in Art. 13.01a of the 

Election Code, constitutes a violation of Art. 

Dear Mr. Pruett: 217 of the Penal Code. 

Your opinion request Involves an interpreation of Subsection (4)(i) of Article la.Ola of Vernon's Texas Election Code 

(the "Party Affiliation Law enacted by the Texas Legislature in 

1959), which reads as follows: 

"Each voter shall present his poll tax receipt 

or exemption certificate, or an affidavit of its loss, 

to the election judge on the first time such voter 

participates in a primary election and the election 

judge shall stamp within the party affiliation space 

on the face of said poll tax receipt, exemption, or 

affidavit of loss, the words 'Democrat' or 'Republican' 

or other party primary vote connotation as the case may 

be and such stamped poll tax receipt, exemption, or affidavit of loss shall be the designation of a qualified 

member of that party; such qualified member of such party, 

having once voted within a party primary shall remain a 

qualified member,,of that party for the d-cration of the 

poll tax period. 

You have informed us that various persons in your county 

have stated that they were going to vote in the Democratic primary 

but would refuse to have their poll tax receipt stamped "Democrat . 

In anticipation of this occurrence, you have asked the following 

question: 

Does refusal of an election judge to deliver a 

ballot in the Democratic primary to a person or persons 
Honorable Cecil M. Pruett, page 2 (W-831) 

who refuse to allow the judge to stamp their poll tax 

receipt, exemption certificate, or affidavit of loss 

with the word "Democrat", as provided in Article 13.01a 

of the Election Code, constitute a violation of Article 

217 of the Penal Code? 

Article 217 of the Penal Code readsas follows: 

"Art. 217.' Refusing to permit voter ,to vote.--Any 

judge of any election who shall refuse to receive the 

vote of any qualified elector who, when his vote is objected to shows by his own oath that he is entitled to 

vote, or who shall refuse to deliver an official ballot 

to one entitled to vote under the law, or who shall wilfully refuse to receive a ballot after one entitled to 

vote has legally folded and returned same, shall be fined 

not to exceed five hundred dollars." (Emphasis supplied.) 

In the light of the underscored portion of Article 217, your 

question may be restated as follows: Is a person entitled to vote in 

a Democratic primary if he refuses to allow the election judge to 

stamp "Demccrat" on his receipt or certificate? 

Before taking up this question, we should give some attention to whether Article 217 of the Penal Code applies to primary elec-. 

tions. Article 217 is a part of Chapter 4 of Title 6 of the Penal Code. 

Various other articles in this chapter refer to "an election or primary" (Art. 2161, 

(Art. 218), 

"an election, either primary,, special or general" 

'any general cr primary election" IArt. 2?2)> while others 

use only the term "election" witho~st specifically mentioning a primary 

election. However, any doubt as to applicability of Article 217 to 

primary elections is removed by Article 231 of the Penal Code, also 

a part of Chapter &,.which provides that the term 'elect,ion" as used 

special, or prior within any 

subdivision within that chapter means "any election, either general, 

mary, held under authority of law within this State, 

town, city, district, county, precinct, or any other 

in this State for any pcrpcse whatever." 

Returning to your question, Article 18.01a cf the Election 

Code provides that the voter shall present his poll tax receipt, exemption certificate, or affidavit of loss, anl that the election judge 

shall stamp the party designation on the receipt, certificate or afflit. While statutory provisions stating that an act shall be done 

are sometimes construed to be discretionary or directory rather than 

mandatory, the ordinary meaning of the word "shall" is equivalent to 

"must " -- it is a mandatory term, requiring compliance. McLaren v. 

State 82 Tex.Crim. 449, 199 S.W; 811 (1917); Brinkley v. State, 32C 

S.W. 655 (Tex. Grim. 1959); Mitchell 'v. Ean,cock, lgb S.W. 694, 730 

(Tex.Civ.App. 1917); J&n& s 

Looking to the purposr 

!e, 3Ob S.W.2d 182 (Tex.Civ.App. 1957). 

and intent of Article l?.Cla, we are of the 

opinion that these provisions are mandatory. The requirement for 
.- - 

Honorable Cecil M. Pruett, page 3 (W-831) 

stamping of the voter's party affiliation is not only for the purpose 

of furnishing him with evidence that he is qualified to participate 

in that party's conventions and to hold party offices, but also for 

the purpose of enabling other parties to determine that he is not 

eligible to participate in their conventions or to hold office in 

their party organization. These being mandatory provisions, a person 

who refuses to allow the primary election judge to stamp the party 

designation on his receipt, certificate, or affidavit is not entitled 

to vote in that primary, and the election judge therefore would not 

violate Article 217 by refusing to deliver a ballot to him. Accordingly, 

your question is answered in the negative. 

SUMMARY 

A person offering to vote in the Democratic primary who refuses to allow the election judge to stamp 

"Democrat" in the party affiliation space on his poll 

tax receipt, exemption certificate, or affidavit of 

loss, is not entitled to vote in that election, and 

refusal of the election judge to deliver a ballot to 

him is not a vlolatlon of Article 217 of the Penal Code. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

$c tzLka.& 

BY 

Mary K. Wall 

Assistant 

MKW:bh 

APPROVED: 

OPINION COMMITTEE 

W.V. Geppert, Chairman 

Houghton Brownlee, Jr. 

J.C. Davis, Jr. 

Riley Eugene Fletcher 

J. Arthur Sandlin 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

Leonard Passmore