Honorable Henry Wade 

District Attorney 

Dallas County 

Dallas, Texas 

Opinion No. C-117 

Re: Whether, in counties 

which have adopted 

voting machlnes,'use of 

the ,machlnea Is mandatory 

Sn primary eIectlons,,;and 

related question. 

Dear Sir: 

For a number of years, voting machines have been 

adopted for use in elections in Dallaa County, as provided 

in Section'3 of Article 7.14 of Vernon's Texas Election Code, 

You have requested ua to render an opinion on the following 

questions: 

"1. Is It mandatory for both parties 

(Democratic and Republican) In a primary 

election to use voting machines? 

"2. If It Is mandatory to use voting 

machines, Is It mandatory for Dallas County 

to furnish the voting machines?" 

Section 3 of Article 7.14, supra, as enacted In 

1951, read as follows: 

"Sec. 3. Adoption by Commissioners Court. 

The Commissioners Court of any county In the 

State of Texas may adopt for use In elections 

and primary elections In at least three (3) 

of the larger voting precincts in voting strength 

In said county, any kind of voting machine approved by the Secretary of State and may adopt 

such voting machine at any time for use In such 

additional voting precincts In the county as It 

may deem advisable, and thereupon. such voting 

machine shall be used at any and all elections 

and primary elections, municipal, county, dlstrlct or State held In that county or any part 

thereof, designated for voting, registering 

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Honorable Henry Wade, page 2 (C-117 ) 

and counting votes cast at such elections 

and primary elections, all school and bond 

elections also shall be conducted by the 

use of voting machines In those counties 

or parts thereof where such machines have 

been adopted, where the law specifically 

makes their use obligatory." 

This statute was amended at the regular session of 

the 58th Legislature this year, by the enactment of Senate 

Bill 61, which will take effect on August 23, 1963. The 

amendments to Article 7.14 were part of the recommendations 

of the Election Law,Study Committee created by S.C.R. No. 30 

of the 57th Legislature. The records of the committee show 

that It considered four suggestions for the amendment of Section 3 of Article 7.14, as follows: (1) clarify whether, or 

when, use of voting machines is mandatory In "school and bond 

elections"; (2) provide a solution for the situation where more 

than one election Is to be held on the same day or within the 

period that the machines are required to remain locked after 

an election, and the county does not own enough machines for 

both elections; (3) in elections for which voting machines 

are not mandatory, provide that the election may be conducted 

on voting machines, at the option of the authority holdln 

? 

the 

election, If the county Is able to furnish the machines; 4) 

clarify the authority of the commissioners court to discontinue 

use of voting machines after they have been adopted. 

The problem noted In the second suggestion had arisen 

most frequently during the past decade under the provision making use of voting machines mandatory In primary elections, in 

the years when both the Democratic Party and the Republican 

Party were holding primaries. With this background, the committee recommended the following amendment, which was passed 

by the Legislature without change: 

“sec. 3. Adoption by commissioners court. 

The Commissioners qourt of any county In the 

Btate may adopt for use in elections-in at least 

three of the larger election precincts in voting 

strength In the county, any kind of voting machine approved by the Secretary of State, and may 

adopt such voting machine at any time for use In 

such additional election precincts In the county 

as It may deem adviaable. The court at any time 

may rescind or modify Its previous order or orders adopting voting machines, and may discontinue 

use of voting machlnes altogether, but use of voting machines shall be retained in at least three 

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Honorable Henry Wade, page 3 (C- 117,) 

of the larger election precincts 'if retained 

for use in any~ part of the county. 

"Voting machines shall be used at the blennlal general elections for state and county officers In all precincts In which they have been 

adopted by the commissioners court. In all other 

elections, general, special, or primary, the authority holding the election shall determine wlthIn Its discretion whether the voting In such 

precincts for the particular election shall be 

by use of voting machines or paper ballots, and 

may provide for use of either voting machines or 

paper ballots In any or all of the precincts for 

which voting machines have been adopted. The 

determination shall be made by the commissioners 

court in elections held at the expense of the 

county, by the governing body of the munlclpal- 

.lty or political subdlvlslon In elections held, 

by munlclpalltles or other political subdivisions, 

and by the county executive committee of the political party In primary elections." 

Under the clear provisions of Section 3 as amended, 

use of voting machines Is not mandatory In primary elections. 

Accordingly, as of the effective date of the amendment your 

first question is answered in the negative. 

Your second question Is whether It 1s mandatory for 

Dallas County to furnish the voting machines for the primary 

elections If use of the machines Is mandatory. From your brief 

It Is apparent that you are also interested In whether It Is 

the mandatory duty' of a county to provide a sufficient number 

of voting machines to comply with the request of all political 

parties for use In the primary elections If their use Is not 

mandatory. This is the question which we~shall answer. 

Since its original enactment in 1930, it has always 

been within the contemplation of the Voting Machine Law that 

the county would permit its machines to be used by other polltloal:! subdivisions and political parties in their elections. 

See Sets. 5, 6, I7 and 21 of Art. 7.14. Section 6 provides: 

"sec. 6. Payment forVotIng Machines. 

The County Commissioners Court shall provide 

for the payment of voting machines to be used 

In such county In such manner as the Court 

may deem for the best Interest of the county. 

Such voting machines shall be the 

pert; of the county paying for same and P 

roor 

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Honorable Henry Wade, page 4 (C-117 ) 

renting same, subject to the terms of 

the rental contract, and when used in 

any election or primary election, the 

aounty is not charged by law with the 

holding of, such machines shall be 

leased to the authorities charged with 

holding such election or primary election, and payment shall be received by 

the county at such leaae price per machine for each election day such machines are used In an election as the 

Commlssloners Court shall fix, but not 

to exceed ten per cent (10%) of the 

original cost of such voting machine, 

as may be required to hold each election or primary election. . . .' 

This section regulates the terms on which the county may permit 

use of its machines but does not make It mandatory for the county to furnish the machines. Section 5 of Article 7.14 prescribes the duty of the county to provide machines after adoption. It requires the commissioners court to provide "one or 

more approved voting machines In completed working order" for 

each precinct designated for their use. In the light of Section 3, as amended, It Is the duty of the commissioners court 

to provide the number of machines which will be required for 

the efficient and orderly conduct of the general election In 

the precincts designated for their use. We do not find any 

provision in the law which requires the county to provide machines In excess of that number. 

The problem of having an inadequate number of machines to run two elections on the same day was aquarely 

before the committee which drafted the amendments to Article 

7.14. It undertook to solve the problem by providing that 

their use would be discretionary rather than mandatory In all 

elections except the general election for state and county 

officers. This would be no solution at all if the discretion 

lodged in the authorities holding the elections could result 

in forcing the county to provide machines whloh It did not 

have. In the light of Its background, the only reasonable lnterpretatlon of the amendment la that the discretion in deciding to use voting machines will be limited by the avallability of machines. We are of the opinion that the county 1s 

not required to furnish voting machines to a political party 

beyond the number which the county will have available for 

use by the party on the day of the primary election. 

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Honorable Henry Wade, Page 5 (C-117 ) 

SUMMARY 

In counties which have adopted voting 

machines, use of the machines will not be 

mandatory in primary elections efter August 2,3,'1963, the effebtlve 'date of..a recent amendment to Section 3 of Article 7.14, 

Vernon's Texas Election Code. 

Where a political party has decided to 

use voting machines In Its primary election, 

the county Is not required to furnish machines for use in the primary In excess of 

the number of machines which It will have 

avllable on the day of the election. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

Mary K. Wall 

Assistant 

MKW:jh 

APPROVED 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Jerry Brock 

Nicholas A. Irsfeld 

Paul Phy 

Joseph Trlmble 

APPROVED FOR THE ATTORNEY GENERAL 

By: Stanton Stone 

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