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EA ORNEY GENERAL OF ?IrEns

WLL WILSON ATTORNEYGENERAL Ausnnr 1,. TEXAS
May 2, 1960

Honorable Cecil M. Pruett OpinionNO. ~~-831 County Attorney Hutchinson County Re: Whether refusalby an. Borger, Texas election judge to deliver a ballot in the Democraticprimary 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 Involvesan interpreationof Subsection (4)(i)of Article la.Ola of Vernon's Texas Election Code (the "PartyAffiliation Law enactedby the Texas Legislature in 1959),which reads as follows:

"Eachvoter shallpresent his poll tax receipt or exemption certificate,or an affidavit of its loss, to the election judge on the first time suchvoter participates in a primary election and the election judge shall stampwithin 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 connotationas the casemay be and such stampedpoll tax receipt, exemption, or affidavit of loss shallbe the designationof a qualified member of that party; such qualifiedmember of such party, having once voted within a party primary shall remain a qualifiedmember,,ofthat party for the d-cration of the poll tax period.
You have informedus that variouspersons in your county have stated that they were going to vote in the Democraticprimary 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 Democraticprimary to a person or personsHonorable Cecil M. Pruett,page 2 (W-831)

who refuse to allow the judge to stamp theirpoll 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 ,tovote.--Any judge of any electionwho shall refuse to receive the vote of any qualified electorwho, when his vote is objected to showsby his own oath thathe is entitled to vote, or who shall refuse to deliver an official ballot to one entitled to vote under the law, or who shallwilfully refuse to receive a ballot after one entitled to vote has legally folded and returned same, shallbe fined not to exceed five hundred dollars." (Emphasissupplied.)
In the light of the underscoredportion of Article 217, your questionmay be restated as follows: Is a person entitled to vote in a Democraticprimary 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" 'anygeneral cr primary election" IArt. 2?2)> while others use only the term "election"witho~stspecificallymentioning a primary election.However, any doubt as to applicabilityof Article 217 to primary elections is removedby Article 231 of the Penal Code, also a part of Chapter &,.whichprovides that the term 'elect,ion" as used special, or prior within any subdivisionwithin that chaptermeans "anyelection, eithergeneral, 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 shallpresent his poll tax receipt, exemption certificate,or affidavit of loss, anl that the election judge shall stamp the party designation on the receipt, certificateor afflit. While statutoryprovisions stating that an act shall be done are sometimes construed to be discretionaryor directory rather than mandatory, the ordinarymeaning of the word "shall" is equivalent to "must" -- it is a mandatory term, requiring compliance.McLarenv. 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 theseprovisions 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 furnishinghim with evidence thathe 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 thathe is not eligible to participate in their conventions or tohold office in theirparty organization.These beingmandatory 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 thatprimary, and the election judge thereforewould 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 Democraticprimary 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 ATTORNEYGENERAL BY: Leonard Passmore