Untitled Texas Attorney General Opinion, KP-0118

Background

Request from Wiley B. McAfee (district attorney) asking three questions about: (1) whether electronic voting systems must store a ballot image containing the Chapter 52 ballot elements; (2) whether precinct election judges must print/sign/return tally lists for early voting as for election day; and (3) remedies when a poll watcher is excluded from authorized activities.
The Election Code sets form requirements for ballots (numbering, election designation/date, "OFFICIAL BALLOT" legend, voting square) in Chapter 52 and sets computerized voting standards in §128.001.
The Secretary of State has defined “ballot image” in the computerized voting context as electronically produced records of all votes cast by a single voter; litigation (Pressley v. Casar) contests whether stored cast‑vote records satisfy the statutory requirement.
The attorney general declined to answer the ballot‑image question because it is the subject of pending appellate litigation and AG opinions avoid addressing matters currently before the courts.
The opinion explains that early voting procedures (Title 7, Chapters 81 and 87) create a separate counting process: early voting ballot boards — not individual precinct election judges — receive sealed early voting ballot boxes and count/process early voting returns.
Watcher protections: Chapter 33 entitles watchers to observe authorized activities; §33.061 makes preventing a watcher from observing an authorized activity a Class A misdemeanor, and election contests under Title 14 may void and remand elections tainted by misconduct that prevents counting legal votes or otherwise affects the outcome.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether electronic voting systems must store a ballot “image” containing Chapter 52 elements (ballot number, date, "OFFICIAL BALLOT", voting square)	Appellant (Pressley) argued the system must store the ballot as presented to voters (a ballot image), not merely cast‑vote records.	Appellee argued statute requires electronic representation of votes, not a pixelated/visual copy of the physical ballot.	AG declined to decide because the issue is pending in Pressley v. Casar and courts should resolve it.
Whether precinct election judges must prepare/return tally lists and precinct returns for early voting as for election day	Requester argued §65.004/.005 (tally lists) do not distinguish early voting vs election day and thus apply at each stage.	State pointed to Title 7 (early voting) which establishes separate procedures assigning counting/returns to early voting ballot boards under §87.062.	Held: Early voting is governed by Title 7; early voting ballot boards, not precinct election judges, count early ballots and prepare returns.
Remedies when an elections administrator excludes a poll watcher from authorized activities	Watcher/excluding party argues exclusion deprives observation rights and may affect election integrity.	State notes statutory protections: watchers entitled to observe (§33.056); criminal sanction (§33.061); and election contests under Title 14 can remedy outcome‑affecting misconduct.	Held: Remedies include criminal prosecution under §33.061 and pursuing an election contest under Title 14, which can void the election and order a new one if misconduct affected the outcome.

Key Cases Cited

City of Waco v. Kelley, 309 S.W.3d 536 (Tex. 2010) (statutory interpretation requires reading the statute in context of the whole code)