XAS
Honorable George D. Dowlin Oninion No. C-371
Criminal District Attorney
Randall County Re: Duty of the County Clerk
Canyon, Texas in regard to furnishing
ballots for absentee
voting where two separate
elections are held at
Dear Sir: the same time and place.
You have requested an opinion on
_ whether it. is -the
duty of the County Clerk, in conducting absentee voting sor
two separate elections which are to be held at the same time
and at the same place, to specifically ask the voters whether
they want to vote in both elections+ You have furnished the
following information concerning the factual background for
this request.
Some time ago a group of Randall County citizens
sought to interest the Commissioners1 Court of Randall County
in establishing a county-owned airport. The Commissioners
Court told the group that if they would present a petition
signed by ten per cent of the eligible voters of the county
asking for such an election, the Court would call an election
on the proposition of issuance of bonds to finance the building
of an airport. The pro onents presented such a petition to the
Court in September, 196t , and the Court ordered the bond elec-
tion to be held in conjunction with the general election on
November 3, 1964.
The voting at both the general election and this
special bond election was conducted on voting machines at the
regular precinct polling places, but paper ballots were used
in both elections for absentee voting by personal appearance
as well as by mail, as authorized in Section 7 of Article 7.14,
Texas Election Code. The County Clerk conducted the absentee
voting in both elections, and separate ballots, ballot boxes,
and stub boxes were used in conducting the absentee voting by
personal appearance in the two elections. When the voter
presented his application for an absentee ballot to the County
Clerk, the Clerk furnished him with the ballot form or forms
requested on the application. If the voter asked only for the
general election ballot, the Clerk furnished him that ballot
without asking him whether he also wanted to vote in the bond
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Bon. George D. Dowlin, page 2 (C-371)
election.
There were 1081 absentee ballots cast in the
general election and 45 absentee ballots cast in the bond
election. The bond issue was defeated by 175'votes. The
proponents for the bond issue feel that the result of the
election might have been changed if a larger percentage of
eligible absentee voters had voted in the bond election, and
they also feel that it was the duty of the County Clerk to
call each eligible voter's attention to the fact that the
bond election was being held if the voter had not requested
a ballot for both elections. They have asked the Commissioners
Court to call another election on the bond proposition. The
feeling of the Court is that an opinion as to the duties of
the County Clerk in conducting the absentee voting would be
an important factor in determining whether or not to call
another election on the bond issue. You have propounded the
following question, which you limit to voting by personal
appearance in the Clerkfs office:
"In conducting separate elections at the same
time and the same place, is it the duty of the
County Clerk and his deputies to specifically
ask eligible voters in bond elections whether
they wish to vote in both elections or, in the
alternative, is it the duty of the County Clerk
and his deputies merely to furnish absentee
voters with a blank application form and permit
people to vote only on elections that they
themselves specifically request ballots for, and
not call their attention to what elections are
being held?"
In addition to the qualifications prescribed by
Section 2 of Article VI of the Texas Constitution, which govern
eligibility to vote in the November general election, a person
is eligible to vote in a bond election only if he also meets
the qualification of owning taxable property which has been
duly rendered for taxation in the political entity holding the
election, as required by Section 3a of Article VI. Where a
bond election is held in conjunction with the general election,
the two elections should be conducted as separate elections
with separate poll lists being kept and separate ballots, ballot
boxes and stub boxes bein used, Attry Cen. Ops. 0-2853 (1940),
,o-4872 (ig42), o-6496 (lg&5)D From these statements of general
principles, it is seen that the bond proposition properly was
not placed on the general election ballot and that a voter
apply.ingfor and entitled to receive a general election ballot
was not necessarily eligible to vote in the bond election also.
Hon. George D. Dowlin, page 3 (C-371)
Public notice that an election is to be held is
given to the voters through methods provided by law. For a
county bond election, notice is given by posting a copy of
the election order in each of the election precincts of the
county and at the county courthouse, and by publishing it in
a newspaper of general circulation published within the county.
Article 704, Vernon's Texas Civil Statutes. We find nothing
in the absentee votin laws (Article 5.05 and Sections 7, 7a
and 7b of Article 7.1& , Vernonss Texas Election Code) expressly
or impliedly making it the duty of the County Clerk, where two
separate elections are being held, to inform voters applying
for an absentee ballot for one of the elections that a second
election is also being held. While the Clerk would not be
acting improperly by asking the voter whether he also wished
to apply for the other ballot, the Clerk is not under a duty
to do so. If any voter failed to apply for the bond election
ballot in the belief that the bond proposition would be listed
on the general election ballot, the error of his belief became
evident to him while he was still in the Clerk's office and he
could have made another application for the bond election
ballot if he wanted to vote in that election also.
In answer to your question, it is our opinion that the
County Clerk was not under a duty to call attention to the bond
election where a voter failed to apply for that ballot.
SUMMARY
Where a countywide bond election is ordered
for the same date as the general election, to be
held at the same polling places, snd a separate
paper ballot is properly furnished to the County
Clerk for conducting the absentee voting in.the
bond election, the Clerk is not under a duty to
call attention to the bond election if a voter
applies for an absentee ballot for the general
election without also asking for a ballot for
the bond election.
Your5 very truly,
WAGGONER CARR
Attorney General
B
-7kry %K
xq Wall
Assistant
MKw:sj
- .
Hon. George D. Dowlin, page 4 (C-371)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
George Gray
Malcolm Quick
Roger Tyler
Bob Flowers
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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