THEAYTOEZNEYGENERAL
OFTEXAS
April 12, 1962
Honorable Alvin E. Pape Opinion No. NW-1307
County Attorney
Guadalune County Courthouse Re: Whether the City Clerk may
Seguin,- Texas return absentee voters'
poll tax receipts, now
being held by the Clerk
under Subdivision 6 of Art.
5.05, Texas Election Code
for 30 days after such
voters have voted absentee
in a city election, so as
to enable such voters to
use the poll tax receipts
again to vote absentee in
school and primary elec-
tions, occurring within
less than 30 day,s of the
Dear Mr. Pape: preceding city election.
In your letter you stated:
"The city election in Seguin will
be held on April 3. The City Clerk
is now retaining the poll ‘taxes of
persons seeking to cast an absentee
ballot as required by Article 5.05,
Subdivision 2, of the Election Code
of the State of Texas. Subdivision
6 provides that the Clerk shall re-
turn the poll tax receipts and the
exemption certificates to the absen-
tee voters after the expiration of
30 days unless a contest has been
filed.
“Many voters have cast an absen-
tee ballot in the City election and
have requested that their poll tax
receipts be returned to them so that
if necessary they can vote absentee
in the school and primary elections
which will follow shortly. Is the
City Clerk required to hold such poll
tax for 30 days as provided by the
Code or may she return them to the
voter at an earlier date? If she
.
Honorable Alvin E. Pape, Page 2 Opinion No. WW-1307
can return such poll tax receipts
at a date earlier than that pro-
vided in the Code, what is the
earliest date after the election
she can release such poll tax re-
ceipts to the voters?”
Subdivision 2 of Article 5.05, Texas Election Code reads
in part as follows:
“An elector desiring to vote
absentee shall make written sworn
application for an official ballot
to the county clerk of the county
of his residence, . .
cation shall be
poll tax receipt or exemption certi-
ficate of the elector, or, in lieu
thereof, his affidavit in writing
that same has been lost or mis-
z. . . .I’ L Emphasis added1
Subdivision 6 of Article 5.05, Texas Election Code reads
in part as follows:
II. . .
“The county clerk shall return
the poll tax receipts and the exemp-
tlon certificates to the absentee
voters at the end of thirty (30) days
unless a contest has been filed.”
In your letter you refer to the “City Clerk”. This is the
same official referred to in the Election Code as the “City Secre-
tary.” Art. 7.13, Election Code, reads in part as follows:
“The expense of all city and town
elections shall be paid by the munici-
nalitv in which same are held. In all
such elections, . . the city secre-
tary, . . . shall do’a;d perform each
act which in other elections are re-
quired to be done and erformed. ,.
plphasi;h; ;zMy cl&k . . . .‘I
The clerk’s authority to mall an absentee ballot rests on
the clerk’s possession of two documents: (1) a sworn application
for absentee ballot, and (2) any one of the following instruments:
c .
Honorable Alvin E. Pape, Page 3 Opinion No. WW-1307
(a) poll tax receipt, (b) exemption certificate, or (c) affidavit
in writing that same has been lost or mislaid. Seguin is a city
with a population in excess of 10,000 Inhabitants according to
the 1960 Federal Census, so every exempt voter who voted in the
city election in Seguln will be required to possess an exemption
certificate, and we need not consider the situation of an exempt
voter who might live outside a city of 10,000 inhabitants, and
who possesses neither a poll tax receipt nor an exemption certi-
ficate.
Why does Subdivision 6 of Article 5.05, Texas Election
Code require the clerk to hold the poll tax receipts and exemp-
tion certificates for 30 days? Art. 9.03, Texas Election Code
reads in part as follows:
“Any person intending to contest
the election of any one holding a
certificate for any office mentioned
in this law, shall, within thirty (30)
days after the return day of election,
give him a notice thereof in writing. . .I’
Subdivision 6 of Article 5.05, Texas Election Code, pro-
vides that the poll tax receipts and exempzion certificates
should be returned at the end of 30 days, unless a con-
test has been filed.” If any of the absentee’vbtes should be
contested in the election contest, it is obvious that the ab-
sentee voter’s poll tax receipt or exemption certificate ought
to be available for evidence in court. We hold, therefore, that
the city clerk may not return the poll tax receipts or exemption
certificates to the absentee voters until the expiration of
thirty (30) days after the return day of the election.
This still leaves the question of how these absentee voters
are going to participate in another election, which follows so
closely on the heels of the city election as to make it impossi-
ble for the clerk to return their poll tax receipts and exemption
certificates in time to use them in the subsequent election. This
problem would exist whether the voter intended to vote in the
second election in person at the polling place on election day,
or by absentee ballot prior to the second election. If his poll
tax receipt or exemption certificate had not been returned by the
clerk at the time he went to vote in the second election, and if
it were mandatory that he have such poll tax receipt or exemption
certificate in his possession before he could participate in the
second election, he would be disenfranchised.
Art. 5.02, Texas Election Code, provides in part:
Honorable Alvin E. Pape, Page 4 Opinion No. WW-1307
II
If such voter shall have
lost’or misplaced said tax receipt
he or she shall beg entitled to vot&
upon making and leaving with the judge
of the election an affidavit that such
tax was paid by him or her, or by his
wife or bye her husband during the time
allowed by law preceding such election
at which he or she offers to vote, and
that said receipt has been l,ost, mis-
laced, or left at home. . . .‘I
Emphasis added1
Attorney General’s Opinion No. WW-594 (1959) holds that
the above rule also applies to exemption certificates. Subdi-
vision 2 of Art. 5.05, supra, provides for affidavits of lost
poll tax receipts or exemption certificates. In the strict
literal sense of the word, the poll tax receipt or exemption
certificate In the hands of the clerk, who is holding it pur-
suant to Subdivision 6 of Art. 5.05, supra, is not “lost.” Nor
is it “mislaid” in the sense that the owner of the same has put
it someplace and momentarily forgotten where it is. But is is
obvious that the voter, in these circumstances, is entitled to
make affidavit that he has mislaid such tax receipt or certifi-
cate. To hold otherwise, would reach the absurd result that the
voter who voted absentee in one election was disenfranchise~d to
vote in a subsequent election held~ within 30 days of the first
election, simply because he had no way to regain possession of
his poll tax receipt or exemption certificate. In 39 Tex.Jur.,
Statutes, Sec. 95, page 179, the rule is stated:
11
. . . statutes are frequently
given an interpretation at variance
with their literal terms. . . .
Thus it has been decided
that’words or clauses should not be
given their literal meaning when such
an interpretation would thwart the
plain purpose of the Legislature, or
would lead to palpable absurdity, . . .,
injustice. . . , if such construction
can reasonably be avoided.”
We hold, therefore, that a voter who has voted absentee
in an election, and by reason of Subdivision 2, Art. 5.05, Texas
Election Code, has delivered his poll tax receipt or exemption
certificate together with his application to the county clerk
Honorable Alvin E. Pape, Page 5 Opinion No. WW-1307
or ci";y clerk in srder to receive lhis absentee ballot, and whose
poll tax receipt or exemption certificate has not been returned
to such absentee voter, because it is being held by such clerk
for 30 days after such election pursuant to Subdivision 6 of
Art. 5.05, may vote at any subsequent election held during the
period while his tax receipt or certificate is being so held bye
such clerk by, making affidavit of "lost" or "mislaid" poll tax
receipt or exemption certificate as prescribed by Art. 5.02, or
Subdivision 2 of Art, 5.05, Texas Election Code.
SUMMARY
City Clerk, holding an absentee voter's poll
tax receipt or exemption certificate, delivered or
mailed to him by, a voter in a city election in order
to obtain an absentee ballot, as required bye Subdi-
vision 2, Art. 5.05, Texas Election Code, must hold
duch poll tax receipt or exemption certificate for
thirty, (30) days af.:er the return day of the elec-
tion, before returning; the same to the voter. Sub-
division 6, Art. 5.05, Texas Election Code.
A voter, whose poll tax receipt or exemption
certificate is in the hands of the clerk, as a
result of having made application for an absentee
ballot, may vote in any subsequent election during
t;ke period while the clerk retains such tax receipt
or certificate, by making affidavit of "lost" or
"mislali" pail tax receipt or exemption certificate,
s.s provi&d by, Ar;r;*5.02, or Subdivision 2 of Art.
5.05, Texas Election Code,
Yours very~ truly,
WILL WILSON
Attorney General of Texas
By 8% +N+--
Riley Eugene Fletcher
Assistant
REF/jp
APPROVED:
OPINION SC~K~.iTTEE:
Wo TJe r”epper3, Chairman
Elmer McVey
J. c. Davis
W. E. Allen ,$ZEWED FCR THE ATTORNEYGENERAL
Leon ,Pes'3k _, : Houghton Brownlee, Jr.