Honorable Henry Wade

District Attorney Dallas County Dallas, Texas OpinionNo. C-117

Re: Whether, in counties which have adopted votingmachlnes,'use of the ,machlneaIs mandatory Sn primary eIectlons,,;and related question.

Dear Sir:

For a number of years, votingmachines 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 requestedua to render an opinion on the following questions:
"1. Is Itmandatory for both parties

(Democraticand Republican) In a primary election to use votingmachines?

"2. If It Ismandatory to use voting machines, Is Itmandatory for Dallas County to furnish the voting machines?"
Section 3 of Article 7.14, supra, as enacted In 1951, read as follows:

"Sec. 3. Adoptionby CommissionersCourt. The CommissionersCourt of any county In the State of Texasmay adopt for use In elections and primary elections In at least three (3) of the largervoting precincts in voting strength In said county, any kind of votingmachine approved by the Secretary of State and may adopt such votingmachine at any time for use In such additionalvoting precincts In the county as It may deem advisable, and thereupon. such voting machine shallbe used at any and all elections and primary elections,municipal, county, dlstrlct or Stateheld In that county or any part thereof, designated for voting, registering

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and countingvotes cast at such elections and primary elections,all school and bond electionsalso shallbe conductedby the use of votingmachines In those counties
or parts thereofwhere suchmachines have been adopted,where the law specifically makes their use obligatory."
This statutewas 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 createdby S.C.R. No. 30 of the 57th Legislature. The records of the committee show that It considered four suggestionsfor the amendment of Section 3 of Article 7.14, as follows: (1) clarifywhether, or when, use of votingmachines is mandatory In "schooland bond elections"; (2)provide a solution for the situationwhere more than one election Is to be held on the same day or within the period that themachines are required to remain locked after an election, and the county does not own enoughmachines for both elections; (3) in elections for which votingmachines
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 commissionerscourt to discontinue use of votingmachines after theyhave been adopted.

The problem noted In the second suggestionhad arisen most frequently during the past decade under the provision making use of votingmachines mandatory In primary elections, in the yearswhen both the Democratic Party and the Republican Partywere holding primaries. With this background, the committee recommended the following amendment,which was passed by the Legislaturewithout change:

“sec. 

### 3. Adoptionby commissioners court. The Commissionersqourt of any county In the Btatemay adopt for use in elections-inat least three of the larger electionprecincts in voting strength In the county, any kind of votingmachine approvedby the Secretary of State, and may adopt suchvotingmachine at any time for use In such additional electionprecincts In the county as Itmay deem adviaable. The court at any time may rescind or modify Its previous order or orders adopting votingmachines, and may discontinue use of votingmachlnes altogether,but use of votingmachines shallbe retained in at least three

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### 3 (C-

### 117,)

of the larger electionprecincts 'ifretained for use in any~

part of the county. "Votingmachines shallbe used at the blennlal general elections for state and county officers In all precincts In which they have been adopted by the commissionerscourt. In all other elections,general, special, or primary, the authorityholding the election shall determinewlthIn Its discretionwhether the voting In such precincts for the particular election shallbe by use of voting machines or paper ballots, and may provide for use of either votingmachines or paper ballots In any or all of the precincts for which votingmachines have been adopted. The determination shall be made by the commissioners court in electionsheld at the expense of the county,by the governingbody of the munlclpal- .lty or political subdlvlslon In electionsheld, by munlclpalltles or otherpolitical subdivisions, and by the county executive committee of the politicalparty In primary elections."
Under the clear provisions of Section 

### 3 as amended, use of votingmachines 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 1smandatory for Dallas County to furnish the voting machines for the primary elections If use of themachines Ismandatory. From your brief It Is apparent that you are also interested In whether It Is themandatory duty'of a county to provide a sufficientnumber 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 questionwhich we~shall answer.

Since its original enactment in 1930, it has always been within the contemplation of the Voting Machine Law that the countywould permit itsmachines to be used by otherpolltloal:! subdivisionsand 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 CommissionersCourt shall provide for the payment of votingmachines to be used In such county In suchmanner as the Court may deem for the best Interest of the county. Such voting machines shallbe the pert; of the county paying for same and P roor

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renting same, subject to the terms of the rental contract, and when used in any election or primary election, the aounty is not chargedby lawwith the holding of, suchmachines shallbe leased to the authorities chargedwith holding such election or primary election, and payment shallbe receivedby the county at such leaaeprice per machine for each election day suchmachines are used In an election as the CommlsslonersCourt shall fix, but not to exceed ten per cent (10%) of the original cost of such votingmachine,
as may be required to hold each election or primary election.

. . .'
This section regulates the terms on which the countymay permit use of itsmachines 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 providemachines after adoption. It requires the commissionerscourt to provide "one or more approved votingmachines In completedworking order" for each precinct designated for their use. In the light of Section 

### 3, as amended, It Is the duty of the commissionerscourt to provide the number ofmachines 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 lawwhich requires the county to providemachines In excess of that number.

The problem of having an inadequatenumber of machines to run two elections on the same day was aquarely before the committeewhich drafted the amendments to Article 7.14. It undertook to solve the problem by providing that their use would be discretionaryrather thanmandatory 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 authoritiesholding the elections could result in forcing the county to providemachines 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 votingmachineswill be limitedby the avallability ofmachines. We are of the opinion that the county 1s not required to furnish voting machines to a political party beyond the number which the countywill have available for use by the party on the day of the primary election.

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SUMMARY

In countieswhich have adopted voting machines, use of themachines will not be mandatory in primary elections efter August 2,3,'1963,

the effebtlve 'dateof..arecent amendment to Section 3 of Article 7.14, Vernon's Texas Election Code.
Where a political party has decided to use votingmachines In Its primary election, the county Is not required to furnishmachines for use in the primary In excess of the number of machineswhich 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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