312

**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN**  **GROVER SELLERS**  ***rromm GLNIRIAL**  **i ”**  **- _-**  **--..,__. -.**  **..__.** Hon. J. M. Reiger County Attorney StephensCounty Breckenridge,

Texas Dear Sir: OpinionX0. O-7508 Re:

FZectlon

held in orCounty Surveyor '

requestfor additional facts,you set forth
ic Is FTbuary,

therewas no candidate. the Democratfc

Count certificate to the County Clerk,
. officetnaturally. g Chairman made no mention of this he CountyClerk delivered his - certificates

- **those** for the State offices, various districtoffices,and Countyb: precinctoffices;asaminS that they took care of every officeprovidedfor, to the printer.Hon. J. He Reiger - Pago a

(ttlo ve Y 81~0 thinghappemed 5.n eonnectiontithanother caunty 0 rice.) The write-$a oampsign inol.uded votes only for the incumbsnt

in the offlsa for CountySurveyor. *If the wd.ta4.n

votes were valid the lncujsbemt CountyGumeyor **would** have been elect.& (And that is the questioninvolved: Has the.voter ths legal right to write **in** tha nsme of the office, when unintentionally e;-ed, as well OS the name of the **person** to be voted 0
We find that the enerslproposition of law is that the voter m&y write the nsma of the 0 fits $ on Us ballot in connection with t,hs
. nams of the person lmom he desiresto have fill such office. 29 C.J.S., p* **249.** And a vOt&r,sla write the name of the person for whom he wishes to vote forasnoffioe,I!4 ich shouldhave been but is not, on the official ballot as voters cannotbe deprived of their constitutional right by the.neg&ence of the Clerk. P* 259. Sac casat cited in Centennial Digest,
This prOpa6ltion

of lau is set forth 8 of In-z-e

Diets, decidedby the Suprsme Court of c ;iffll in the case The decisionstatss i.m part; , bo R.T.S. 43.

W in 

### fatit

a ~a anuy in the officeof aldermanin the tara

aldwmafa d.i

tr2ets in question

did erist P whish shouldhave-properly been filledat the elec,lon o h 1914 the faitiLrJn,

nag3.ect

or oktssioh

of the electioa

officiais to !l revlde 8 plaeo on the 0SMofal ballot for voting for sue offioa,d&t sot d*pr$vo the voters ?f **their** T **t to**  have the nssms of **the** oand%daWs for rdsozn they~vote , and ti~ose names they vote upon the officisl tml10~~ cawassed and countedin favor of such persons.n 1~ snethsrowe, that of CWlough VS, Ackeqaan 64 Atlantic 964, the Xew Jersey 00~1% construed a statute

d&h prodded for *erasing fron his ballot sny name or names thsreon printed.;.

or for writing or pa&ing thereonthe msme or nsmes of any personor Personsfor whom he desiresto vote for any officeor OffiOeseC

Althoughour Texas statutes do not provide.for name or names of personsor candidates on the ballot, it !?%%e% thec

Hon. J.

court's --..,

314

M. Reiger - Page 3
construction

could be appliedto our statutes with regard to the names of personsor candidates for whom the voter desires hi8 vote. In the above case the Court used the following 8: 

### writing to cast l=C-& *If the name of the officeto be filledbe already on the **ballot,** the voter'sright is to indicate his desire ' by placingthe name of the pereon under the name of such office but if the name of the office has been omittedkm the beflot

i the voter is not f revented;

by force of the statutory angga&e

under cons deration, from voting to fill such oflice,

but, by terns of the Act, may write on the ballot the name of the personhe desiresto vote for to fill-said

office,

where by necessary implication

in **such** case, includesthe additionin miting of the name of the officeto be filled." In a Texas.case

on t&Is question,

State ex rel Vogler vs. i%mcke, Al S.L. 185, the Court said:

"If the law requiredthe designation of the office on the ballot .the failureto do so.would not render the ballot illegd, but that the ballot,like any other written instrument, shouldbe examined

and construedin the light of the attendantoircuaetances, 60 aa to aacertafn the intention

of the voter in connection therewith." Therefore,

in view,of the authorities, It is our opinion? that in the absenceof frau#, said votes cast in the general election would be legal end could be counted.

Fe will furthernote in this conuection, ArticleXVI, Sec. 17 of the Constitution of Texas, .wbich

provides: _.

**“ All**  officersi&thin this State Shall **COntinUe t0**  perfom the dutiee **of** their officea until their euocessore shall be duly qualified.n
>;e trust that the foregoing has fully answeredyour inquiry. Very truly yours