Eonorable Frederick .I.Biel Opinion No. J-M-736
Bee County Attorney
Bee County Courthouse ue: Whether article 64.036 of the
Beeville, Texas 78102 Election Code is applicable to
persons who assist voters under the
provisions of section 86.010 of the
Election Code
Dear Mr. Biel:
You ask whether the penal provisions of section 64.036 of the
Election Code are applicable to persons who assist voters under the
provisions of section 86.010 of the Election Code. You also ask
whether section 64.036 of the Election Code is unconstitutionally
vague in the context of absentee'voting by mail.
Provisions relating to the general conduct of elections are found
in title 6 of the Election Code [hereinafter the Code]. Chapter 64 of
the Code addresses election day voting procedures at the polling
place. Title 8 of the Code pertains to absenta voting. Chapter 86
regulates the conduct of absentee voting by mail.
Your inquiry concerns procedures and penalties for assisting
a voter in marking an absentee mail ballot. It is first necessary to
review the provisions relating to assistance provided at the polling
place, since those provisions also govern absentee voting by mail.
A voter who is unable to prepare his ballot because of a physical
disability or because of an inability to read the ballot is eligible
for assistance. Sec. 64.031.' Assistance may be rendered by two
election officers or by a person of the voter's choice. A voter may
1. In addition to the "regular" absentee voting by mail proce-
dures discussed in chapter 86 of the Code, chapters 101-114 cover
special forms of absentee voting. These chapters are not relevant to
the questions posed in this opinion and are excluded from discussion.
2. Unless otherwise indicated, all section references are to the
Election Code.
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Honorable Frederick J. Biel - Page 2 (J-M-736)
not select his employer, an agent of his employer, or an officer or
agent of a labor union to which the voter belongs to assist him. Sec.
64.032.
A person assisting a voter reads the entire ballot to the voter
unless the voter indicates a desire to vote only on certain offices or
measures. Sec. 64.033. If a voter is assisted by a person other than
an election officer, the person must take the following oath adminis-
tered by an election officer:
I swear (or affirm) that I will not suggest, by
word, sign, or gesture, how the voter should vote;
I will confine my assistance to answering the
voter's questions, to stating propositions on the
ballot, and to naming candidates and, if listed,
their political parties; and I will prepare the
voter's ballot as the voter directs.
Sec. 64.034.
If assistance is provided to a voter who is not eligible to
receive assistance, the voter's ballot is not to be counted. Sec.
64.037. Section 64.036 defines offenses and prescribes criminal
penalties for unlawfully assisting e voter. Section 64.036 provides:
(a) A person commits an offense if the person
knowingly:
(1) provides assistance to a voter who is
not eligible for assistance;
(2) while assisting a voter prepares the
voter's ballot in a way other than the way the
voter directs; or
while assisting a voter suggests by
word,(3jign, or gesture how the voter should
vote.
(b) A person commits an offense if the person
knowingly assists a voter in violation of Section
64.032(c).
(c) An election officer commits an offense if
the officer knowingly permits a person to provide
assistance:
(1) to a voter who is not eligible for
assistance; or
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Honorable Frederick J. Biel - Page 3 (JM-736)
(2) in violation of Section 64.032(c).
(d) An offense under this section is a Class B
misdemeanor.
The provisions regarding assistance in mail balloting situations
are found in sections 86.010, 86.012, and 86.013 of the Code. Section
86.010 provides:
(a) A voter casting a ballot by mail who would
be eligible under Section 64.031 to receive
assistance at a polling place may select a person
as provided by Section 64.032(c) to assist the
voter in preparing the ballot.
(b) Assistance rendered under this section
is limited to that authorized by this code at a
polling place.
(c) If a voter is assisted in violation of
this section, the voter's 'ballot may not be
counted. (Emphasis added).
The instructions required to be printed on an official ballot
envelope in which a voter's marked ballot is to be placed are
prescribed by section 86.012. Subsection (b) of that section
provides:
(b) The following textual material, as pre-
scribed by the secretary of state, must be printed
on the face of each official ballot envelope and
may be continued on the reverse side if necessary:
(1) instructions for marking the ballot
and returning the marked ballot to the absentee
voting clerk;
(2) the deadline for returning the marked
ballot to the clerk;
(3) limitations on assistance to the
voter; and
(4) criminal penalties for unlawful
assistance in preparing the ballot. (Emphasis
added).
Pertinent information required to be printed on the official
carrier envelope in which the voter's absentee ballot is returned to
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Honorable Frederick J. Biel - Page 4 (JM-736)
the absentee voting clerk is set forth in section 86.013(c). The
subsection reads:
(4 A certificate in substantially the
following form must be printed on the reverse side
of the official carrier envelope:
'I certify that the enclosed ballot expresses
my wishes independent of any dictation or undue
persuasion by any person.
Signature of voter
By:
Signature of person assisting
voier',if applicable (see Ballot
Envelope for restrictions and
penalties)
Printed name of person assisting
voter, if applicable
Residence address of person
assisting voter, if applicable'
You question the applicability of the penalties for unlawful
assistance set forth in section 64.036 (election day assistance) to
assistance rendered pursuant to section 86.010 (absentee by mail
assistance). Section 86.010 authorizes assistance in absentee voting
by mail and limits the assistance to that authorized at a polling
place. Sec. 86.010, subsecs. (a). (b). Subsection 86.010(c) prohibits
the counting of a ballot when a voter is assisted in violation of
section 86.010. Thus, the assistance available to a person voting by
mail is equivalent to that offered a voter at the polling place. The
limitations and penalties concerning assistance are printed on the
official ballot envelope and noted on the official carrier envelope to
instruct a voter and a person who may be assisting a voter on the
proper method of assistance.
Despite these requirements. you suggest that the legislature did
not intend to impose criminal penalties on unlawful assistance in
absentee voting. You rely on a general provision pertaining to the
epplicability of other portions of the Code to absentee voting.
Section 81.002 of the Code provides:
The other titles of this code apply to absentee
voting except provisions that are inconsistent
with this title or that cannot feasibly be applied
to absentee voting.
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Honorable Frederick J. Biel - Page 5 (JR-736)
By the terms of section 81.002, the offenses created in section
64.036 do apply to absentee voting by mail. unless the offenses are
inconsistent or infeasible in that context. Rowever, you do not
suggest that section 64.036 is inconsistent with the absentee proce-
dures or that the penalties cannot feasibly be applied. Rather, you
urge that in light of section 81.002. either: (1) section 86.010 is
redundant. or (2) that the provisions repeated in section 86.010 are
an exhaustive listing of the assistance provisions that apply to
absentee by mail situations. Specifically, you cite the inclusion of
language similar to section 64.037 (ballot void when assistance
rendered to ineligible voter) in section 86.010 and the failure to
repeat the criminal penalty section as evidence of legislative intent
to limit available sanctions in absentee voting.
We cannot agree with this reading of the Code. We believe that a
more reasonable reading of section 81.002 in conjunction with sections
86.010, 86.012, and 86.013 discloses a legislative intent to ensure
the availability of assistance in mail voting and to preclude any
suggestion that such assistance is inconsistent or infeasible.
While section 81.002 renders repetition of compatible provisions
unnecessary, it does not eliminate all questions of applicability. We
do not consider section 86.010 redundant because explicit authorisa-
tion of assistance eliminates any dispute about its applicability to
wail absentee procedures.
We note that several provisions relating to election day assis-
tance cannot feasibly be applied to absentee voting by mail. For
example, the oath requirement in section 64.034 assumes the presence
of an election officer; the deposit of the marked ballot in section
64.035 assumes the presence of a ballot box; and the offense created
in section 64.036(c) assumes the presence of an election officer.
Incidentally, each of these provisions is consistent with and may
feasibly be applied to absentee voting by personal appearance.
We cannot conclude that the partial restatement of assistance
provisions in the chapter on absentee voting by mail is intended to
be exhaustive. Such a conclusion would render sections 81.002,
86.012(b), and 86.013(c) inoperative. It is a well-settled rule of
statutory construction that language is to be construed in a wanner
that gives effect and meaning to each word, sentence, end clause of
the statute if feasible. As we stated in Attorney General Opinions
JM-106 (1983) and JR-221 (1984). statutory language should not be
construed in a fashion that renders some lannuane redundant or
inoperative. See Perkins v. State, 367 S.W.2d 146. 146 (Tex. 1963);
Eddins-Walcherxtane Company v. Calvert, 298 S.W.2d 93, 96 (Tex.
1957); Spence v. Penchler, 180 S.W. 597, 601 (Tex. 1915).
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Honorable Frederick J. Biel - Page 6 (JM-736)
In our opinion, section 64.036. subsections (a), (b). and (d) of
the Code are consistent with and applicable to assistance rendered to
a voter pursuant to section 86.010 of the Code.
You also ask whether section 64.036 is unconstitutionally vague.
Article I, section 10, of the Texas Constitution states, in part:
In all criminal prosecutions the accused shall
have a speedy trial by an impartial jury. !i=
shall have the right to demand the nature and
cause of the accusation against him. and to have a
copy thereof. . . . (Emphasis added).
The requirement for clarity in penal statutes is restated in the
Penal Code. Section 1.02 of the Penal Code provides, in part:
The general purposes of this code are to
establish a system of prohibitions. penalties, and
correctional measures to deal with conduct, that
unjustifiably and inexcusably causes or threatens
harm to those individual or public interests for
which state protection is appropriate. To this
end, the provisions of this code are intended, and
shall be construed, to achieve the following
objectives:
. . . .
(2) by definition and grading of offenses to
give fair warning of what is prohibited and of the
consequences of violation. . . . (Emphasis added).
This "fair warning" requirement applies to offenses defined by laws
outside the Penal Code also. -
See Penal Code 11.03(b).
You do not suggest particular words within section 64.036 that
are lacking in clarity. The applicable standard for determining
vagueness was stated in Attorney General Opinion H-925 (1977). at 1.
"A law is void for vagueness if it fails to give a person of ordinary
intelligence a reasonable opportunity to know whet is prohibited."
Grayned v. City of Eockford, 408 U.S. 104 (1972); Ex parte Frye, 156
S.W.2d 531 (Tex. Grim. App. 1941).
In deciding whether the provisions sanctioning unlawful assis-
tance are clear, we look first to the provisions pertaining to
assistance. Courts have had no trouble determining whether specific
behavior constitutes assistance. Carter v. White, 161 S.W.2d 525
(Tex. Civ. App. - El Paso 1942, no writ); Fuentes v. Eoward, 423
S.W.2d 420 (Tex. Civ. App. - El Paso 1967. writ dism'd). The statutes
at issue in those election contests were election laws from which the
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Honorable Frederick J. Biel - Page 7 (JM-736)
*
current assistance provisions are derived. While neither case
concerned the constitutionality of the penal provisions relating to
illegal assistance, both courts agreed that "assistance" means aid in
the actual marking of a voter's ballot. Carter, 161 S.W.2d at 526;
Fuentes. 423 S.W.2d at 424.
In our opinion, the language of sections 64.031, 64.032, and
64.033 precisely define assistance, eligibility for assistance, and
the method of providing assistance. Further, it is our opinion that
section 64.036 clearly states the impermissible conduct and the
sanctions for providing assistance contrary to law. Section 64.036 is
not void for vagueness.
SUMMARY
Election Code section 64.036, subsections (a),
(b), and (d) are consistent with and applicable to
assistance rendered to a voter pursuant to section
86.010 of the Election Code. Election Code
section 64.036 is not void for vagueness.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JIJBGEXOLLIE STFAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen Gladney
Assistant Attorney General
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