312 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

GROVER SELLERS 

*rromm GLNIRIAL i”- _- --..,__. 

-. ..__. 

Hon. J. M. Reiger 

County Attorney 

Stephens County 

Breckenridge, Texas 

Dear Sir: 

Opinion X0. O-7508 

Re: 

FZectlon held in 

orCounty Surveyor ' 

request for additional facts, you set forth 

ic 

Is 

FTbuary, there was no candidate. 

the Democratfc Count 

certificate to the County Clerk, . 

officet naturally. g 

Chairman made no mention of this 

he County Clerk delivered his - 

certificates - those for the State offices, various 

district offices, and County b: precinct offices;asaminS 

that they took care of every office provided for, to the printer. 
Hon. J. He Reiger - Pago a 

(ttlo ve 

Y 

81~0 thinghappemed 5.n eonnectiontith another 

caunty 0 rice.) 

The write-$a oampsign inol.uded votes only for the 

incumbsnt in the offlsa for County Surveyor. 

*If the wd.ta4.n votes were valid the lncujsbemt 

County Gumeyor would have been elect.& (And that is 

the question involved: 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 enersl proposition 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 desires to 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 forasn offioe, I!4 ich should have been but is not, on the official ballot as voters cannot be 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, decided by the Suprsme Court of c 

;iffll in the case 

The decision statss i.m part; 

, bo R.T.S. 43. 

W in fatit a ~a anuy in the office of alderman in 

the tara aldwmafa d.i P tr2ets in question did erist whish 

should have-properly been filled at 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 counted in favor of such persons.n 

1~ snethsr owe, 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.;. orfor writing 

or pa&ing thereon the msme or nsmes of any person or Persons for whom 

he desires to vote for any office or OffiOeseC 

Although our Texas statutes do not provide.for 

name or names of persons or candidates on the ballot, it !?%%e% the 
c 

Hon. J. 

court's 

--.., 

314 

M. Reiger - Page 3 

construction could be applied to our statutes with regard to 

the names of persons or 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 office to be filled be already 

on the ballot, the voter's right is to indicate his desire ' 

by placing the name of the pereon under the name of such 

office but if the name of the office has been omitted km 

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 person he desires to vote for to 

fill-said office, where by necessary implication in such 

case, includes the addition in miting of the name of the 

office to 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 required the designation of the office 

on the ballot .the failure to do so.would not render the 

ballot illegd, but that the ballot, like any other 

written instrument, should be examined and construed in 

the light of the attendant oircuaetances, 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 absence of frau#, said votes cast in the general election 

would be legal end could be counted. 

Fe will further note in this conuection, Article XVI, Sec. 

17 of the Constitution of Texas, .wbich provides: _. 

“All officers i&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 answered your inquiry. 

Very truly yours