Do Texas election judges have to take the constitutional oath of office?

Plain-English summary

The El Paso County Attorney asked the AG whether Texas election judges have to take the constitutional oath of office set out in article XVI, section 1 of the Texas Constitution. That oath requires elected and appointed officers to swear they will faithfully execute their duties and preserve, protect, and defend the constitutions and laws of Texas and the United States, plus subscribe to an anti-bribery statement. The catch is that the constitution does not list which positions count as "officers," and election judges already swear a separate, narrower oath under the Election Code before the polls open.

The AG applied the test from Aldine Independent School District v. Standley, the Texas Supreme Court case that asks whether a position carries a sovereign government function exercised for the public largely independent of others' control. Running elections is a sovereign function, and an election judge even has limited judicial power, including the authority to issue an arrest warrant to keep order at the polls. The Secretary of State advises election judges but cannot supervise how they carry out their statutory duties, and the bodies that appoint election judges cannot remove or direct them. So election judges, alternate election judges, and early-voting clerks act largely free of others' control and qualify as public officers.

Because they are public officers, the AG concluded they must take the constitutional oath in addition to the statutory election officer's oath. The two are not interchangeable: the statutory oath only covers refraining from influencing voters, faithfully performing election duties, and guarding the purity of the election. It leaves out the "preserve, protect, and defend" language and the anti-bribery statement, and a statute cannot relieve an officer of a constitutional duty. Finally, the AG addressed the practical worry that many past election judges may never have taken the constitutional oath. An election can be challenged only through an election contest filed within a short window, and irregularities like a missing oath do not ordinarily overturn an election that was honestly and fairly held, so the AG concluded a past failure to take the oath is unlikely to affect a prior election's validity.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that a court would likely hold election judges, alternate election judges, and early-voting clerks are public officers required to take the constitutional oath of office under article XVI, section 1, on top of the statutory election officer's oath.

Election judges and early-voting clerks (as the opinion described them): The opinion treated them as public officers because they exercise sovereign election functions, including limited judicial authority, largely independent of the control of others, so the constitutional oath requirement reached them at the time.

Counties and election administrators (as the opinion described them): The opinion noted that the entities appointing election judges cannot supervise or remove them and that the Secretary of State advises but does not supervise their statutory duties, which is part of why election judges qualified as officers rather than employees.

Common questions

Did Texas election judges have to take more than one oath under this opinion?
Yes. The opinion concluded they take the statutory election officer's oath under Election Code section 62.003(a) before the polls open and, separately, the constitutional oath of office under article XVI, section 1, because the two are not functionally equivalent.

Why did the AG treat an election judge as a public officer rather than just a worker?
Under the Aldine test, the opinion explained that an election judge exercises a sovereign government function (running an election) for the benefit of the public, holds limited judicial authority such as issuing an arrest warrant to keep order, and acts largely independent of others' control, which is the mark of a public officer.

Did the constitutional oath also apply to early-voting clerks and alternate judges?
Yes. The opinion noted that an alternate presiding judge and an early-voting clerk have duties and powers generally equivalent to a presiding election judge, so the same officer analysis applied to them.

If past election judges never took the constitutional oath, were those elections invalid?
The opinion concluded that was unlikely. An election can be challenged only in an election contest filed within a short deadline, and courts uphold results absent clear and convincing evidence of an erroneous outcome, so a missing oath by an official who otherwise served honestly does not ordinarily invalidate the election.

Background and statutory framework

The Texas Constitution requires all elected and appointed officers to take the official oath before entering on their duties and to subscribe to an anti-bribery statement (Tex. Const. art. XVI, § 1, § 1(a), § 1(b), § 1(c)). Because the constitution does not enumerate who counts as an officer, Texas courts and the AG use the standard from Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), which turns on whether a sovereign function of government is conferred on the individual for the public's benefit, exercised largely independent of the control of others (see also Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App.—El Paso 1999, pet. ref'd); Arredondo v. State, 406 S.W.3d 300 (Tex. App.—San Antonio 2013, pet. ref'd); Tex. Att'y Gen. Op. No. GA-0365 (2005)).

Chapter 32 of the Election Code governs election judges. The commissioners court appoints a presiding election judge and an alternate for each precinct, generally for a one- or two-year term (Tex. Elec. Code §§ 32.001-.115, 32.001-.002, 32.002(b), 32.007(d)). Presiding judges manage the polling place, appoint and direct election clerks, preserve order, and may appoint a special peace officer, and in keeping order an election judge "has the power of a district judge ... including the power to issue an arrest warrant" (Tex. Elec. Code §§ 32.071, 32.072, .074, 32.072(a), (c), 32.075(a), 32.075(b), 32.075(c)). Alternate presiding judges and early-voting clerks have generally equivalent duties and authority (Tex. Elec. Code §§ 32.001(b), 83.001(c)). Other appointing authorities and party chairs may appoint election judges in certain elections (Tex. Elec. Code §§ 32.004-.005, 32.006(a)). The AG reasoned that running an election is a sovereign function (Krier v. Navarro, 952 S.W.2d 25 (Tex. App.—San Antonio 1997, writ denied); Des Champ v. Featherston, 886 S.W.2d 536 (Tex. App.—Austin 1994, no writ)), and that the Secretary of State, the State's chief election officer, advises but cannot generally supervise an election judge (Tex. Elec. Code §§ 31.001(a), 31.003-.004, 31.005, 31.006(a)).

The Election Code requires election judges to take a statutory oath before the polls open (Tex. Elec. Code § 62.003(a)), but the AG concluded a statute cannot relieve an officer of a constitutional duty (City of Fort Worth v. Howerton, 236 S.W.2d 615 (Tex. 1951)). A substantially similar oath can suffice when differences are "merely semantic" (In re Gen. Elec. Capital Corp., 63 S.W.3d 568 (Tex. App.—El Paso 2001, mand. denied)), but the statutory election oath omits the "preserve, protect, and defend" language and the anti-bribery statement, so it is not functionally equivalent (Brown v. State, 238 S.W.2d 787 (Tex. Crim. App. 1950)). On the effect of a missing oath, the AG explained that elections are challenged only in an election contest filed within thirty days, or ten in some instances, and that results are upheld absent clear and convincing evidence of an erroneous outcome (Tex. Elec. Code §§ 232.008(b)-(c), 221.003(a); Olsen v. Cooper, 24 S.W.3d 608 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Prado v. Johnson, 625 S.W.2d 368 (Tex. Civ. App.—San Antonio 1981, writ dism'd); Hunnicutt v. State ex rel. Witt, 12 S.W. 106 (Tex. 1889); Gonzalez v. State, 938 S.W.2d 482 (Tex. App.—El Paso 1996, pet. ref'd); Mitchell v. Jones, 361 S.W.2d 224 (Tex. Civ. App.—Texarkana 1962, no writ); Tex. Att'y Gen. LO-96-056 (1996)). The AG noted that other officials likewise take an office-specific oath in addition to the constitutional one (Tex. Loc. Gov't Code §§ 81.002(a), 84.007(b); Tex. Civ. Prac. & Rem. Code § 21.032).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 1, § 1(a), § 1(b), § 1(c)
• Tex. Elec. Code §§ 32.001-.115, 32.001-.002, 32.001(b), 32.002(b), 32.007(d), 32.071, 32.072, .074, 32.072(a), (c), 32.075(a), 32.075(b), 32.075(c), 32.004-.005, 32.006(a), 83.001(c), 31.001(a), 31.003-.004, 31.005, 31.006(a), 62.003(a), 221.003(a), 232.008(b)-(c)
• Tex. Loc. Gov't Code §§ 81.002(a), 84.007(b)
• Tex. Civ. Prac. & Rem. Code § 21.032

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0365 (2005)
• Tex. Att'y Gen. LO-96-056 (1996)

Cases:

• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App.—El Paso 1999, pet. ref'd)
• Arredondo v. State, 406 S.W.3d 300 (Tex. App.—San Antonio 2013, pet. ref'd)
• Krier v. Navarro, 952 S.W.2d 25 (Tex. App.—San Antonio 1997, writ denied)
• Des Champ v. Featherston, 886 S.W.2d 536 (Tex. App.—Austin 1994, no writ)
• City of Fort Worth v. Howerton, 236 S.W.2d 615 (Tex. 1951)
• In re Gen. Elec. Capital Corp., 63 S.W.3d 568 (Tex. App.—El Paso 2001, mand. denied)
• Brown v. State, 238 S.W.2d 787 (Tex. Crim. App. 1950)
• Olsen v. Cooper, 24 S.W.3d 608 (Tex. App.—Houston [1st Dist.] 2000, no pet.)
• Prado v. Johnson, 625 S.W.2d 368 (Tex. Civ. App.—San Antonio 1981, writ dism'd)
• Hunnicutt v. State ex rel. Witt, 12 S.W. 106 (Tex. 1889)
• Gonzalez v. State, 938 S.W.2d 482 (Tex. App.—El Paso 1996, pet. ref'd)
• Mitchell v. Jones, 361 S.W.2d 224 (Tex. Civ. App.—Texarkana 1962, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0140
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0140.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 17, 2017

The Honorable Jo Anne Bernal Opinion No. KP-0140
El Paso County Attorney
500 East San Antonio, Room 503 Re: Whether Texas election judges are
El Paso, Texas 79901 required to take the oath of office prescribed by
Texas Constitution article XVI, section 1
(RQ-0134-KP)

Dear Ms. Bernal:

    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, § 1(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 others." 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 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 control 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), 83.001(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 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").

    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 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 1 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. ref'd); 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. LO-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).

                                 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.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jo Anne Bernal, El Paso Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 4, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[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 § 83.001(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] Other 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).

[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. § 31.006(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.).

[6] Other statutes also require an official to take an oath specific to the office in addition to the constitutional oath. See, e.g., TEX. LOC. 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").