Texas Attorney General Opinion: KP-0140 Page: 3 of 6
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The Honorable Jo Anne Bernal - Page 3
remaining factor is whether an election judge exercises those functions "largely independent of the
control of others." Aldine, 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 31.001(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." Aldine, 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").
4The 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. 31.006(a) (authorizing the Secretary of State to refer criminal complaints to the Attorney General).
'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.).(KP-0140)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: KP-0140, text, April 17, 2017; (https://texashistory.unt.edu/ark:/67531/metapth1051054/m1/3/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.