The Honorable Jo Anne Bernal
El
Paso County Attorney
500 East San Antonio, Room 503
El Paso, Texas 79901
Dear Ms. Bernal:
KEN PAXTON
ATTORNEY
GENERAL
OF
TEXAS
April 17, 2017
Opinion
No. KP-0140
Re: Whether Texas election judges are
required to take the oath
of
office prescribed by
Texas Constitution article
XVI, section 1
(RQ-0134-KP)
The Texas Constitution requires all elected and appointed officers to take the official oath
of
office "before they enter upon the duties
of
their offices."
TEX.
CONST.
art. XVI, § l(a). An
official taking the constitutional oath swears to faithfully execute the duties
of
the office and to
preserve, protect, and defend the constitution and laws
of
Texas and the United States. Id. Before
taking the oath, the official subscribes to a statement averring that the official has not paid or
promised to pay a thing
of
value or promised employment in order to obtain the office. Id. § 1 (b
).
You ask whether article XVI, section 1
of
the Texas Constitution requires election judges, alternate
judges, and early-voting clerks to take the constitutional oath
of
office.
1
Article XVI, section 1 does not specifically enumerate the public officers who must take
the constitutional oath
of
office. See
id.
In Aldine Independent School District
v.
Standley, 280
S.W.2d
578 (Tex. 1955), the Texas Supreme Court adopted standards for determining whether a
person occupying a particular position is a public officer for constitutional purposes.
Id.
at 583.
Under the Aldine standard, the "determining factor
...
is whether any sovereign function
of
the
government is conferred upon the individual to be exercised by him for the benefit
of
the public
largely independent
of
the control
of
oth~rs."
Id.
at 583. Courts
of
appeals and this office rely on
the
Aldine standard to determine whether a person is a public officer required to take the
constitutional oath
of
office under article XVI, section
1.
See,
e.g., Prieto Bail Bonds
v.
State, 994
S.W.2d 316,
318-20
(Tex.
App.-El
Paso 1999, pet.
ref
d)
(holding that senior judges are public
officers required to take the constitutional oath);
Arredondo
v.
State, 406 S.W.3d 300, 303-04
(Tex.
App.-San
Antonio 2013, pet.
ref
d) (determining that county medical examiner was not a
public officer required to take the constitutional oath); Tex.
Att'y
Gen. Op. No. GA-0365 (2005)
at
4-5
(determining that the Aldine standard is the appropriate test to determine
if
an officeholder
1
Letter from Honorable Jo Anne Bernal,
El
Paso Cty. Att'y, to Honorable Ken Paxton, Tex.
Att'y
Gen. at I
(Oct. 4, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Jo Anne Bernal - Page 2
(KP-0140)
is a public officer subject to article XVI, section 1). Accordingly,
we
examine the powers and
duties
of
election judges, alternate election judges, and early-voting clerks.
2
Chapter 32
of
the Election Code generally governs election judges. See
TEX.
ELEC.
CODE
§§
32.001-.115. The county commissioners court appoints a presiding election
judge
and an
.alternate for each election precinct in which an election is held.
Id.
§§
32.001-.002.
3
Presiding
election
judges
generally serve a one- or two-year term, although, in an emergency the
commissioners court may appoint an election judge to serve for a single election.
Id.
§§
32.002(b ),
.007( d). Presiding election judges are responsible for the management and conduct
of
the elections
at their respective precinct polling places.
Id.
§ 32.071. They appoint election clerks who assist
the presiding
judge,
administer oaths, assign the election clerks duties, and 9ontrol their working
hours.
Id. §§ 32.072, .074. The presiding
judge
must preserve order, prevent breaches
of
the
peace, and prevent violations
of
the Election Code in and near the polling place. Id. § 32.075(a).
An
election
judge
may appoint a special peace officer to assist with these duties. Id. § 32.075(b).
In performing these duties, the election
judge
"has the power
of
a district
judge
to enforce order
and preserve the peace, including the power to issue an arrest
warrant."
Id.
§ 32.075(c).
An
alternate presiding
judge
and an early-voting clerk both have duties and powers generally
equivalent to those
of
a presiding judge. See
id.
§ § 32.001 (b) (the alternate presiding
judge
serves
as presiding
judge
for an election when the regularly appointed presiding
judge
cannot serve),
83.00l(c)
(the early-voting clerk generally "has the same duties and authority with respect to early
voting as a presiding election
judge
has with respect to regular voting").
As discussed above, an election judge is an appointed position created
by
the Legislature.
Thus, whether election judges and others with the authority
of
an election
judge
must take the
constitutional oath depends on whether they qualify as officers under the
Aldine standard.
Performing statutory duties in an election is a sovereign function, exercised for the benefit
of
the
public.
See Krier
v.
Navarro, 952 S.W.2d 25,
28-30
(Tex.
App.-San
Antonio 1997, writ denied)
(stating that performing
or
supervising the performance
of
duties and functions for a county-wide
election is a sovereign function conferring a public benefit);
Des Champ
v.
Featherston, 886
S.W.2d 536, 540 (Tex.
App.-Austin
1994, no writ) ("Elections are the ultimate expression
of
the
sovereign
will." (quotation marks omitted)). Additionally, the statutes give an election
judge
limited judicial authority, which is also a sovereign function. See Prieto Bail Bonds, 994 S.W.2d
at
318-20
(determining that senior judges are appointed officials required to take the constitutional
oath). Because an election
judge
exercises sovereign functions for the benefit
of
the public, the
2
An
early-voting clerk
is
an election official who has the same powers and duties with respect to early voting
as a presiding election judge has with respect to regular voting.
TEX.
ELEC. CODE §
83
.00 I ( c
).
Distinct from the
early-voting clerk are "election clerks," who are appointed by and work at the direction
of
the presiding election judge.
Id.§
32.072(a), (c). Your questions do not concern these election clerks. See Request Letter at 3.
3
0ther
county authorities and political subdivisions may appoint election judges for elections
in
which the
county election precincts are not used.
TEX.
ELEC. CODE
§§
32.004-.005. Also, for a political party holding a primary
election, the county chair
of
the party holding the election appoints the election judges for each precinct. Id.
§ 32.006(a).
The Honorable Jo Anne Bernal - Page 3
(KP-0140)
remaining factor is whether an election judge exercises those functions "largely independent
of
the
control
of
others." A/dine, 280 S.W.2d at 583.
Some
of
an election
judge's
duties may be routine and ministerial, but others require the
exercise
of
independent discretion. An election
judge's
duty and authority to perform sovereign
functions, albeit limited under the law, is not subject to the control
of
other officials. The State's
chief election officer, the Secretary
of
State, provides advice and assistance to local election
authorities such as an election judge but does not possess general authority to supervise an election
judge's
performance
of
the
judge's
statutory duties. See
TEX.
ELEC.
CODE
§§
31.00l(a)
(designating Secretary
of
State as the State's chief election officer), .004 (requiring assistance and
advice).
4
Further, the statutes do not give the entities that appoint election judges the authority to
remove
or
supervise an election judge, so that an election judge exercises his or her statutory duties
"largely independent
of
the control
of
others." A/dine, 280 S.W.2d at 583;
cf
Krier, 952 S.W.2d
at
29-30
(holding that because the position
of
county elections administrator could be created or
abolished by the commissioners court and the administrator required the commissioners court's
approval for many
of
the administrator's decisions, the county elections administrator was thus
not a public officer for purposes
of
constitutional term limits). Thus, a court is likely to conclude
that election judges, alternate election judges, and early-voting clerks exercise a sovereign function
of
government for the benefit
of
the public, largely independent
of
the control
of
others and,
therefore, are officers subject to article XVI, section 1
of
the Texas Constitution.
The Election Code requires that before the polls open, the election judge must take a
statutory oath:
I swear (or affirm) that I will not in any manner request or seek to
persuade or induce any voter to vote for or against any candidate or
measure to be voted on, and that I will faithfully perform my duty
as an officer
of
the election and guard the purity
of
the election.
TEX.
ELEC.
CODE
§ 62.003(a). Briefing submitted to our office argues that this statutory oath is
sufficient to bind an election
judge's
exercise
of
his or her powers for the common good, making
any constitutional oath requirement unnecessary.
5
However, a statute cannot relieve a public
officer
of
a constitutional duty. See City
of
Fort Worth
v.
Howerton, 236 S.W.2d 615, 618 (Tex.
1951) (stating that
"the Legislature
...
does not have the power to repeal or amend the provisions
of
the Constitution").
4
The Secretary
of
State provides general instructions, advice, and assistance to local election authorities but
may intervene
only
in
limited circumstances. See e.g.,
id.
§§
31.003-.004 (requiring the Secretary
of
State to provide
advice and assistance to local election authorities such
as
an election judge, and to obtain and maintain uniformity and
provide written instructions and directives), .005 (authorizing the Secretary
of
State to order an election authority to
desist from impeding a citizen's exercise
of
voting rights and to seek judicial process to enforce the order); see also
id. § 3 I .006(a) (authorizing the Secretary
of
State to refer criminal complaints to the Attorney General).
5
See
Brief
from Lindsey Wolf, Gen. Counsel, Tex.
Sec'y
of
State at
1-2
(Nov. 10, 2016)
("Brief')
(on file
with the Op. Comm.).
The Honorable Jo Anne Bernal - Page 4
(KP-0140)
An
oath in words substantially similar to the constitutional oath may suffice when any
difference is
"merely semantic." In re Gen. Elec. Capital Corp.,
63
S.W.3d 568, 571 (Tex.
App.-
El Paso 2001, [mand. denied]). However, the statutory oath and the constitutional oath are not
functionally equivalent. Article XVI, section 1 provides in full:
(a) All elected and appointed officers, before they enter upon the
duties
of
their offices, shall take the following Oath or
Affirmation:
"I, , do solemnly swear (or affirm), that I will
faithfully execute the duties
of
the office
of
__
the State
of
Texas, and will to the best
of
my ability preserve, protect,
and defend the Constitution and laws
of
the United States
and
of
this State, so help me God."
(b) All elected or appointed officers, before taking the Oath or
Affirmation
of
office prescribed by this section and entering upon
the duties
of
office, shall subscribe to the following statement:
"I,
__
, do solemnly swear (or affirm) that I have not
directly or indirectly paid, offered, promised to pay,
contributed, or promised to contribute any money or thing
of
value, or promised any public office or employment for the
giving or withholding
of
a vote at the election at which I was
elected or as a reward to secure my appointment or
confirmation, whichever the case may be, so help me
God."
( c) Members
of
the Legislature, the Secretary
of
State, and all other
elected and appointed state officers shall file the signed statement
required by Subsection (b)
of
this section with the Secretary
of
State
before taking the Oath or Affirmation
of
office prescribed
by
Subsection (a)
of
this section. All other officers shall retain the
signed statement required by Subsection (b)
of
this section with the
official records
of
the office.
TEX.
CONST.
art. XVI, §
1.
In contrast, the statutory oath specific to election judges and polling
place election clerks, quoted above, requires them to swear that they will (1) refrain from
attempting to influence voter's votes, (2) faithfully perform their election-officer duties, and (3)
"guard the purity
of
the election."
TEX.
ELEC.
CODE
§ 62.003(a). Unlike the constitutional oath,
the statutory oath does not require the affiant to
"preserve, protect, and defend the Constitution
and laws
of
the United States and
of
this State," or include an anti-bribery statement. Compare
id., with
TEX.
CONST.
art. XVI, §
1.
Although the courts have never addressed the question, they
are unlikely to conclude that the statutory oath
of
section 62.003
of
the Election Code satisfies the
constitutional oath requirements.
Cf
Brown
v.
State, 238 S.W.2d 787, 788 (Tex. Crim. App. 1950)
(holding that an oath to perform the duties
of
a special judge "agreeably to the Constitution and
laws
of
the United States and
of
this State" but did not include an obligation to "preserve, protect
The Honorable Jo Anne Bernal - Page 5 (KP-0140)
and defend" the constitutions and laws did not satisfy the constitutional oath requirements).
Rather, a court is likely to conclude that election judges, alternate election judges, and early-voting
clerks are public officers and must take the constitutional oath
of
office under article XVI, section
I
of
the Texas Constitution in addition to the statutory election officer's oath.
6
We are aware that some election judges and similar officers
may
have performed their
duties in past elections without taking the constitutional oath.
See
Brief
at
1.
The validity or
results
of
an election may be challenged only in an election contest, initiated
by
petition filed not
later than thirty days, and in some instances ten days, after an election.
See
TEX.
ELEC.
CODE
§ 232.008(b
)-(
c
).
An
election contest determines whether the outcome shown by the final canvass
was not the true outcome because illegal votes were counted or an election official prevented
eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct,
or mistake.
Id. § 221.003(a). "[T]he declared results
of
an election will be upheld in all cases
except where there is clear and convincing evidence
of
an erroneous result." Olsen
v.
Cooper, 24
S.W.3d 608, 610 (Tex.
App.-Houston
[1st Dist.] 2000, no pet.). Irregularities in the manner
of
holding an election "will not ordinarily invalidate an election, unless
...
such irregularities have
affected or changed the results
of
the election." Prado
v.
Johnson, 625 S.W.2d 368, 369, 371 (Tex.
Civ.
App.-San
Antonio 1981, writ dism' d) (holding that irregularities by election officials did
not invalidate election where there was
"no showing that those who served did not honestly and
faithfully perform their duties without bias or
favoritism"). Thus, the fact that an election official
may have failed to take the required constitutional oath is unlikely to affect the results
of
the
election in which the official served.
See Hunnicutt
v.
State ex
rel.
Witt, 12 S.W. 106, 239 (Tex.
1889) (stating in an election case that voters
of
a precinct should not be disenfranchised even
if
the evidence showed that the selection
of
election officers was irregular, "that they had not been
sworn at all, but that the election was fairly
held"); see also Gonzalez
v.
State, 938 S.W.2d 482,
484 (Tex.
App.-El
Paso 1996, pet.
refd);
Mitchell
v.
Jones, 361 S.W.2d 224, 228 (Tex. Civ.
App.-Texarkana
1962, no writ) (failure
of
person providing assistance to take statutorily required
oath did not invalidate ballot); Tex.
Att'y
Gen. L0-96-056 (1996) at 2 (determining that an official
who has not filed the statement required by article XVI, section 1
of
the Texas Constitution may
still be a de facto officer whose acts are valid with respect to third parties and the public).
6
0ther
statutes also require an official to take an oath specific to the office
in
addition to the constitutional
oath.
See, e.g.,
TEX.
Loe. Gov'T CODE
§§
81.002(a) (requiring county judges and commissioners to "take the official
oath and swear
in
writing" that the person will not be interested
in
certain contracts with
or
claims against the county),
84.007(b) (requiring a county auditor to take the official oath and an oath providing specific information);
TEX.
CIV.
PRAC. &
REM.
CODE
§ 21.032 (requiring interpreter appointed to a county court at law to "take the constitutional oath
of
office and an oath that the interpreter will faithfully interpret all testimony given
in
court").
The Honorable Jo Anne Bernal - Page 6
(KP-0140)
SUMMARY
A court is likely to conclude that election judges, alternate
election judges, and early-voting clerks are public officers and must
take the constitutional oath
of
office under article XVI, section 1
of
the Texas Constitution in addition to the statutory election officer's
oath. The fact that an election judge, alternate election judge, or
early-voting clerk may not have taken the constitutional oath is
unlikely to affect the validity
of
a prior election.
JEFFREY
C.
MATEER
First Assistant Attorney General
BRANTLEY
STARR
Deputy First Assistant Attorney General
VIRGINIA K.
HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Very truly yours,
KEN
PAXTON
Attorney General
of
Texas
Assistant Attorney General,
Opinion Committee
