Case Information
*1 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 FTbuary, there was no candidate. Is certificate to the County Clerk, . Chairman made no mention of this
the Democratfc Count officet naturally. g 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 81~0 thinghappemed 5.n eonnectiontith another
(ttlo ve caunty 0 rice.) Y
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
We find that the enersl proposition of law is that the voter on Us ballot in connection with t,hs . m&y write the nsma of the 0 fits $ 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 offi- cial ballot as voters cannot be deprived of their constitutional right by the.neg&ence of the Clerk. Sac casat cited in Centennial Digest, P* 259.
This prOpa6ltion of lau is set forth 8 ;iffll in the case of In-z-e Diets, decided by the Suprsme Court of c , bo R.T.S. 43. The decision statss i.m part;
W in fatit a ~a anuy in the office of alderman in the tara aldwmafa d.i tr2ets in question did erist whish P should have-properly been filled at the elec,lon o h 1914 the faitiLrJn, nag3.ect or oktssioh of the electioa officiais to revlde 8 plaeo on the 0SMofal ballot for voting for sue offioa, d&t sot d*pr$vo the voters ?f their !l t to have the nssms of the oand%daWs for rdsozn they~vote , and T 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 *eras- ing fron his ballot sny name or names thsreon printed.;. or for 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%
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Hon. J. M. Reiger - Page 3
court's construction could be applied to our statutes with regard to writing to cast the names of persons or candidates for whom the voter desires
hi8 vote. In the above case the Court used the following l=C-& 8:
*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 revented; by force of the beflot the voter is not statutory angga&e under cons deration, from voting to fill i f
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 aacer- tafn 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