,

JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX12548 Austln, TX. 73711- 2543 512/475-2501 Telex 9101874.1387 Telecopier 512/4750286

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# The Attorney’ General of Texas

April 4, 1986

Honorable ClintH~.ckuey Chairman Committeeon Elections Texas Rouse of ReFresentatlves P.O. Box 2910 Austin, Texas 78769 OpinionNo. JM-467
Re: Location of pollingplaces and residency requirements for election judges in city council election
Dear RepresentativeHackney:
You ask two questions about an election formembers of the Alvin City Council scheduledforApril 5, 1986. The city is under a federal court order to ceme at-large election of city councilmembers and adopt a plan that includes the election of five city councilmembers by district and mro at large. The city is phasing in the new plan. You inform us that the city councilhas 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 districtwhich will cl&t a city councilman.
You requestan opinion on the followingquestions:

1. In a municipal election, does the election of a couucilmember from a district require that thepollingplacebe locatedwithin the district?
2. In a municipal election, does the law require t:hatthe 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 pollingplaceswere designated for theApril 5 election compliance with the Election Code depends in part upon the facts. Some factshave been submitted to US, but an Attorney General Opinion may not make the .additionalfact findings necessary to a complete answer to this quc:stlon. Moreover, the requirements of the Federal Voting RightsAct, .42 U.S.C. 61971,et seq.,are also relevant to your inquiry. The requirementsof this act may in some casesprevail over the provisions of state law. We lack sufficient information about court orders issued under theVoting. Rights Law thatwould 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 subjectwill.control its duty with respect to thisHonorable Clint Eackuey - Pape 2 (J-M-467)

particular election. We w:X discuss the **relevant** provisions of law to provide some guidance toyou. With this caveat. we 'turnto your first question. Under the Election Code, the precinct, and not the city election district, is the geographicalunit 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 determinewhere 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 electionprecinct 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 GeneralOpinionH-2:32(1974). -
The commissionerscourt is to divide the county into "compact and contiguous" election precincts. Elec. Code 142.001. Section 42.005 of the code establishes rho relationshipbetweeu county electionprecincts and singlemember districts for the election of city qouucilmm: (a) A county electionprecinct way Dot contain

territory from mre than **one** of each of the following types of territorialunits: (1) a comissioners precinct; (2) a justice -precinct; (3) a congressionaldistrict; (4) a state representativedistrict; (5) a state seaatorlaldistrict; (6) a ward in a citywith a population of 10,000or:=; or (7) a State Board of Educationdistrict.

. . . . (c) In this section, 'ward'means a territorial unit of a city, regardlessof its designationunder

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other law. fromwhich a aember of the city'sgover-

-- ning body is electedby only thevoters residing in the territorial&t

--* (Emphasisadded).
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 precinctboundaries to accommodatethe new city electiondistricts,or whether there was sufficient time between the issuance of the court order and the April 5 electIon date to fulfill the statutoryrequirements for changingaboundary. See Elec. Code 542.003(b). - Moreover, the FederalVoting Rights Act, 42 U.S.C. 91971 et seq., might prevent the commissioners court from complying with Election Code deadlines in changingan electionprecinctboundary to conform to a new city electiondistrict. Changes in electionprecinctboundaries and in the locationsof polling places are subject to praclearanceby 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 impracticablebecause of a federal court order).
To suamlarise,author,ityrests with the county commissioners court, and not the city council, to redraw electionprecinct lines to conformwith 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 investigationand 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,:!d388, 389 (Tex. 1954). Election laws, however, are construedas directory in absence of fraudor amandatory provisionwhich requiresvoiding aballot for failure to complywith 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 ‘[lstDist.] 1982,writ dism'd). Election law provisionswhich relate to voters aremore readily construedas directory than those relating to candidates. Branaum v. Patrick, 643 S.W.2d 745, 749 (Tex. Civ. APP. - SanAntonio 1982,ntrvrit).

p.~.2139Honorable Clint Hackney - I'age4 (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, ~271S.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 GeneralOpinion 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 supersedeor supplementsome of the code provisions. See SLec.Code 5532.011. 32.035, 32.056. Alvin is a hone rule city anms charterprovisions on electionswill have tobe read togetherwith the ElectionCode. 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 32.051provides 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. 2140Honorable Clint Hackney - l'age5 (JM-467)

authority of the city. Elec. Code 932.056; see 6532.052 (public officer ineligible); 32.053 (candidatefor publicoffice Ineligible); 32.054 (relativeor 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 emergencyprovision. Section 32.007 of the Election Code defines an "emergency appointment"mier chapter 32:

(a) If neither the presiding judge nor the alternatepresidtng 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 appointingauthority is unavailable, the authority responsible for distributing the supplies for the election shall appoint the replacement judge.
Elec. Code 032.007. Under the circumstancesdescribedhere, the city may appoint a qualified 'voteras election judge, subject to other eligibilityprovisions 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 questionbeyond ,thescope of this opinion.
SUMMARY Section 43.004,of the Election Code provides that a polling .placefor a mutiicipalelection 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:lectionCode also provide for appointmentof 8 registeredvoter in an emergency as definedby 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 ElectionCode. Very trulyyou s
J-k .

JIM MATTOX Attorney General of Texas
JACX EIGHTOWER First AssistantAttorney General

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MARY KELLER ExecutiveAssistantAttormy General
ROBERT GRAY SpecialAssistantAttorney G.eneral
RICK GILPIN Chairman,Opinion Coumittec! Preparedby SusanL. Garrhon AssistantAttorney General

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