, 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austln, TX. 73711- 2543 

512/475-2501 

Telex 9101874.1387 

Telecopier 512/4750286 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

21417424944 

4824 Alberta Ave.. Suite IS0 

El Paso. TX. 79905.2793 

915/533-3484 

1001 Texas. Suite 700 

Houston, TX. 770029111 

713l223.5886 

805 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

806/747-5235 

4309 N. Tenth, Suite S 

McAllen, TX. 78501-1885 

512lSS2-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

51212254191 

An Equal OpportunityI 

Affirmative Action Employer 

The Attorney’ General of Texas 

April 4, 1986 

Honorable Clint H~.ckuey 

Chairman 

Committee on Elections 

Texas Rouse of ReFresentatlves 

P.O. Box 2910 

Austin, Texas 78769 

Opinion No. JM-467 

Re: Location of polling places 

and residency requirements for 

election judges in city council 

election 

Dear Representative Hackney: 

You ask two questions about an election for members of the Alvin 

City Council scheduled for April 5, 1986. The city is under a federal 

court order to ceme at-large election of city council members and 

adopt a plan that includes the election of five city council members 

by district and mro at large. The city is phasing in the new plan. 

You inform us that the city council has named election judges who 

not reside in the diistrict to which they are assigned. Moreover, the 

city has not established a' polling place in each district which will 

cl&t a city councilman. 

You request an opinion on the following questions: 

1. In a municipal election, does the election 

of a couucil member from a district require that 

the polling place be located within the district? 

2. In a municipal election, does the law 

require t:hat the election judge be a registered 

voter :iiving within the boundaries of the 

district? 

We cannot pn>vide an exhaustive answer to your first question. 

Whether the polling places were designated for the April 5 election 

compliance with the Election Code depends in part upon the facts. 

Some facts have been submitted to US, but an Attorney General Opinion 

may not make the .additional fact findings necessary to a complete 

answer to this quc:stlon. Moreover, the requirements of the Federal 

Voting Rights Act, .42 U.S.C. 61971, et seq., are also relevant to your 

inquiry. The requirements of this act may in some cases prevail over 

the provisions of state law. We lack sufficient information about 

court orders issued under the Voting. Rights Law that would modify the 

application of Election Code provisions to this election. See, l .g., 

Attorney General Opinion MW-350 (1981). However, the court order 

which the city is subject will.control its duty with respect to this 
Honorable Clint Eackuey - Pape 2 (J-M-467) 

particular election. We w:X discuss the relevant provisions of law 

to provide some guidance to you. 

With this caveat. we 'turn to your first question. Under the 

Election Code, the precinct, and not the city election district, is 

the geographical unit withi,n which a polling place is established. A 

single polling place is to be located within each precinct. Elec. 

Code 543.001. The city comcil has authority to determine where the 

polling place will be located within the precinct. Elec. Code 

143.004; see Elec. 

to iuclud= city). 

Code §1.005(13) (defining "political subdivision" 

The city council also has some authority to establish election 

precincts for city council elections. but the city's election precincts "may uot divide a county election precinct except as necessary 

to follow the city's bomiary." Elec. Code 042.061(c). Thus, the 

city's election precincts arc virtually determined by the county's 

election precincts established pursuant to the Election Code. See 

Attorney General Opinion H-2:32 (1974). 

- 

The commissioners court is to divide the county into "compact and 

contiguous" election precincts. Elec. Code 142.001. Section 42.005 

of the code establishes rho relationship betweeu county election precincts and single member districts for the election of city qouucilmm: 

(a) A county election precinct way Dot contain 

territory from mre than one of each of the following types of territorial units: 

(1) a comissioners precinct; 

(2) a justice -precinct; 

(3) a congressional district; 

(4) a state representative district; 

(5) a state seaatorlal district; 

(6) a ward in a city with a population of 

10,000 or:=; or 

(7) a State Board of Education district. 

. . . . 

(c) In this section, 'ward' means a territorial 

unit of a city, regardless of its designation under 

p. 2138 
Honorable Clint Hackney - L'age 3 (JM-467) 

other law. from which a aember of the city's gover- -- 

ning body is elected by only the voters residing in 

the territorial &t --* (Emphasis added). 

Elec. Code 42.005. 

The Election Code aulhorizes the commissioners court to change 

the boundaries of county Ktection districts to make them conform to 

city election districts. See Elec. Code §S42.031-42.035. You have 

not informed us whether tlG?county has attempted to change election 

precinct boundaries to accommodate the new city election districts, or 

whether there was sufficient time between the issuance of the court 

order and the April 5 electIon date to fulfill the statutory requirements for changing a boundary. See Elec. Code 542.003(b). - 

Moreover, the Federal Voting Rights Act, 42 U.S.C. 91971 et seq., 

might prevent the commissioners court from complying with Election 

Code deadlines in changing an election precinct boundary to conform to 

a new city election district. Changes in election precinct boundaries 

and in the locationsof polling places are subject to praclearance by 

the Attorney General of the United States. 42 U.S.C. 81973c; Perkins 

v. Matthews, 400 U.S. 379, 380-83 (1971); County Council of Sumter 

County, South Carolina v. United States, 555 F.Supp. 694 (D.C.D.C. 

1983); Eeggins v. City of-Dallas, 469 F.Supp. 739, 740 (N.D. Texas 

1979); see Attorney General Opinion MW-350 (1981). See also Acts 

1985, 69thLeg., ch. 340, at 2589 (county election precincts are not 

required to conform to &ty election districts if compliance is 

impracticable because of a federal court order). 

To suamlarise, author,ity rests with the county commissioners 

court, and not the city council , to redraw election precinct lines to 

conform with city wards 01: election districts. See Attorney General 

Opinion E-282 (1974). We cannot determine whxer the statutes 

discussed prevent or excuss the county from redrawing the precinct 

lines in time for the April 5 election; the application of those 

statutes to a specific case requires the investigation and resolution 

of fact questions. 

The city council Is required to locate the polling place within 

the established election ,precinct, and voters are required to vote 

within the precinct in which they reside. Elec. Code 111.003; 

Harrison v. Jay, 271 S.W,:!d 388, 389 (Tex. 1954). Election laws, 

however, are construed as directory in absence of fraud or a mandatory 

provision which requires voiding a ballot for failure to comply with a 

statute. Thomas v. Groebl. 212 S.W.2d 625, 630-31 (Tex. 1948); 

Statler v. Fetzer, 630 S.lr2d 782. 783-84 (Tex. Civ. App. - Houston 

‘[lst Dist.] 1982, writ dism'd). Election law provisions which relate 

to voters are more readily construed as directory than those relating 

to candidates. Branaum v. Patrick, 643 S.W.2d 745, 749 (Tex. Civ. 

APP. - San Antonio 1982, ntrvrit). 

p.~ .2139 
Honorable Clint Hackney - I'age 4 (JM-467) 

The courts have in nest cases strictly construed the section 

11.003 reauirement that al:L voters vote in the orccinct in which thev 

reside. &rrison v. Jay, ~271 S.W.2d 388, 389' (Tax. 1954); Greater 

596, S.W.2d 597, 

uniga v. Almaraz, 

514 S.W.2d 331. 334 (Tex. Civ. App. - San Antonio 1974. no writ). 

There are, however. exceptions to the strict construction of this 

provision. En parte White, 28 S.W. 542, 544 (Ten. Cria. App. 1894); 

Anderson v. Crow, 260 S.W.2d 227, 233-34 (Tex. Civ. App. - Austin 

1953, wand. overr.); Attorney General Opinion O-1303 (1939). 

You next ask whether zhe law requires that the election judge in 

a municipal election be a registered voter living within the 

boundaries of the district. Chapter 32 of the Election Code deals 

with the appointnent and qualifications of election judges. The 

provisions of a home rule city charter supersede or supplement some of 

the code provisions. See SLec. Code 5532.011. 32.035, 32.056. Alvin 

is a hone rule city anms charter provisions on elections will have 

to be read together with the Election Code. 

Sections 32.051 through 32.056 of the Election Code govern 

eligibility requirenents :Eor election judges. These provisions 

constitute subchapter C of chapter 32 of the Election Code. Sectlop 

32.051 provides as follows: 

(a) Except a:~ provided by Subsection (b), to 

be eligible to :@ve as a judge of an election 

precinct, a person must be a qualified voter of 

the precinct. 

(b) If the suthority making an energency 

appointment of s. presiding judge cannot find an 

eligible qualified voter of the precinct who is 

willing to accept the appointment, the eligibility 

requirement for a clerk prescribed by Subsection 

(c) applies. 

(c) To be eligible to serve as a clerk of an 

election precinct, a persou nust be a qualified 

voter ; 

. . . . 

(3) of the political subdivision. in an 

election ordered by an authority of a political 

subdivision othsr than a county. (Emphasis 

added). 

A hone rule city charter aay prescribe eligibility requirements or 

grounds of ineligibility in addition to those prescribed in subchapter C for election officers serving in elections ordered by an 

p. 2140 
Honorable Clint Hackney - l'age 5 (JM-467) 

authority of the city. Elec. Code 932.056; see 6532.052 (public 

officer ineligible); 32.053 (candidate for publicoffice Ineligible); 

32.054 (relative or employc~s of candidate ineligible). Under section 

32.051, the person appointed as a city election judge must be a 

qualified voter of the p:cecinct, unless he is appointed under the 

emergency provision. Section 32.007 of the Election Code defines an 

"emergency appointment" mier chapter 32: 

(a) If neither the presiding judge nor the 

alternate presidtng judge can serve in an election 

and their inabil:tty to serve is discovered so late 

that it is impr,xticable to fill the vacancy in 

the normal msnmx, the presiding officer of the 

appointing authority or the authority if a single 

officer shall appoint a replacament judge to preside at the eleckton. If the appointing authority 

is unavailable, the authority responsible for 

distributing the supplies for the election shall 

appoint the replacement judge. 

Elec. Code 032.007. Under the circumstances described here, the city 

may appoint a qualified 'voter as election judge, subject to other 

eligibility provisions in the city charter applicable to an anergeacy 

appointee. Whether an orJer under the federal Voting Rights Act 

affects the operation of lkese provisions at the April 5 election in 

Alvin is a question beyond ,the scope of this opinion. 

SUMMARY 

Section 43.004, of the Election Code provides 

that a polling .place for a mutiicipal election 

should be located within the election precinct. 

Section 32.051 af the Election Code requires that 

the election jwlge be a registered voter of the 

election precinct he serves as judge. Section 

32.051 of the E:lection Code also provide for 

appointment of 8 registered voter in an emergency 

as defined by section 32.007 of the Election Code. 

The provisions WE the Federal Voting Rights Act 

may in some casfw prevail over the provisions of 

the Texas Election Code. 

Very truly you s 

J-k 

. 

JIM MATTOX 

Attorney General of Texas 

JACX EIGHTOWER 

First Assistant Attorney General 

p. 2141 
Honorable Clint Eackney - I'rge 6 (JM-467) 

MARY KELLER 

Executive Assistant Attormy General 

ROBERT GRAY 

Special Assistant Attorney G.eneral 

RICK GILPIN 

Chairman, Opinion Coumittec! 

Prepared by Susan L. Garrhon 

Assistant Attorney General 

p. 2142