Honorable Jules Dsmlani, Jr. Opinion NO. ~~-1065
Criminal District Attorney
Court Rouse Re: What officer handles
'Galveston,Texas absentee voting by
paper ballots in school
elections.
Dear Sir:
You have requested an opinion on'the following
question:
"Does the County Clerk handle
or process absentee voting by paper
ballots in school eltictione,where
voting machines or pa#er ballots are
in use by the county?
Voting machines have been adopted for use in elections
in Galveston County, and your Inquiry is directed particularly
to school elections In counties where voting maohines are in
use. Sectlon 7 of Article 7.14, Electlon Code, provides that
the authority charged with holding an election shall determine
whether voting machines or paper ballots shall be used for the
casting of absentee votes at the,electlon. The portion of the
statute dealing with absentee,votlngby paper ballots reads as
follows:
' * + + Should the authority
charged with holding an election de-.
termlne by such resolution as above
provided, that absentee votes cast at
such election be cast by a paper ballot,
then, and In such event, the authorlty
charged with holding such election shall
provide a ballot for the'castlngof ab-
sentee votes as preecribed and provided
by the generallaws applicable to elec-
tions and to sbsentee voting and those
entitled under the l&w shall i?astxr
'vote by such ballot under the laws appll-
cable ,toabsentee voting, wovi~
however, that on the day of such %ction
.
Hon. Jules Damlanl, Jr., page 2 (~~-1065)
and in the presence of the election officers
one of the judges of election shall, between
the hours of 2 p.m. and 3 p.m. open the
carrier envelope only as provided by the
laws applicable to absentee voting, * * *.
portion provides for processing~
absentee ballots and registeringthe
votes on the voting machine In use at the
polling place, and for challenge of absen-
tee ballots and rejection of those not
voted according to lawg All rejected
ballots shall be.enclosed,securely sealed
In an envelope on which words, 'rejected
absentee ballots1 have been written to-
gether with the statement of the precinct
and the date of the election, signed by the
judges and clerks of election and returned
In the same manner as provided for the re-
turn and preservationof official ballots
voted at such election and shall be held by
the County Clerk, City Secretary or other
person provided by law, thirty (30) days
and as much longer thereafteras a;y court
or reviewing authority may direct.
(Emphasissupplied.)
Where absentee voting Is by paper ballot, the under-
scored portion of this statute makes the general provisions on
absentee voting applicable In all matters except the matters
expre.sslycovered In the succeedingprovisions of Section 7,
dealing with the processing of the ballots after they have been
delivered to the election judges.
Article 5.05, Election Code, which Is the general
statute on absentee voting, provides that absentee voting In
all elections shall be conducted by the county clerk. Article
7.13 provides that In municipal elections "the mayor, the city
secretary,and/or the governing body shall do and perform each
aat which In other elections are required to be done and per-
formed respectivelyby the county judge, the county clerk and
the CommissionersCourt." Consequently,In municipal elections
the city secretary is the proper officer to conduct absentee
Wood v State ex rel. Lee 133 Tex. 110, 126 S.W.2d 4
~%~r Att'y Gdn. Cp. O-b033 d ). However, there Is no
similar statute transferringthe county clerk's duties to some
other officer in school elections,and the county clerk Is the
proter officer to conduct absentee voting in these elections
In paper ballot" counties. Hooker v. Foster 19 S.W.2d 911
(Clv.App.1929);.Att'y Gen. Op. 04467A (1942). Since Section
suu7
Hon. Jules Damlanl, Jr., page 3 (~~-1065)
7 of Article 7.14 makes these provisions of Article 5.05 appll-
cable.to absentee voting by paper ballot In counties where ,'
voting machines have been adopted, the same rule applies.In
those counties. In this connection,Article 2745~ of Vernon's
Civil Statutes expresslyp'rovldesthat the county clerk shall
conduct the absentee voting In school trustee elections,and
that paper ballots shall be used for absentee voting In all
such elections, including elections In districts where voting
machines are used at regular polling places.
You have called our attention to the term "authority
charged with holdlng..theelection" In Section 7 of Article 7.14
and to the last sentence of this section, which provides that
rejected absentee ballots shall be returned In the same manner
as provided for the return and preservationof official ballots
voted at the election and "shall be held br the Counts Clerk.
City Secretary or other person provided by-law", and ,ou suggest
that the terms nauthorlty charged with h Id1ng an election"
and 'other person provided by law" indlczte that school dls-
trlcts and water districts should handle their own absentee
voting, the same as the county clerk and city secretary In
their elections. As already pointed out, there is a statute
expressly substitutingthe city secretary for the county clerk
In city elections. In primary elections, the authority charged
with holding the election Is the county executive committee of
the party; yet It cannot be doubted that the oounty'clerkrather
than someone designatedby the executive committee Is the proper
officer to conduct absentee voting for primary elections. In
the absence of a statute transferringthese duties to someone
else, It Is our opinion that the county clerk Is the proper
officer to conduct absentee voting in all elections.
The last sentence of Section 7 pertains to the custody
of the ballots after the election Is concluded. The general pro-
visions of the Election Code place custody of the ballots In
the county clerk (Art. 5.05, Subdiv. 6;,Art. 5.06; Art. 8.32).
By Article 7.13, supra, the city secretary Is made the custodian
of ballots In city elections. Special statutes place custody
In some other officer in various other elections (e.g., Arts.
2746a and 7880-29, V.C.S.) and these special statutes explain
the reason for insertion of the term "or other person provided
by law." However, the substitutionof some other person for
the county clerk In these latter statutes Is for the specific
duties enumerated In the statute and not for the duties of
the county clerk generally.
Sectioll7a of Article 7.14, efiactedIn 1957, provides
an optional method for the counting of absentee paper ballots
by a special canvassingboard In elections held In counties
Hon. Jules Damlanl, Jr., page 4 (~~-1065)
which have adopted voting machines. This section provides
that "absenteevoting shall be conducted by the county clerk,
city secretary,or other officer charged by law with the duty
of conductingabsentee voting for that election." (Emphasis
lid) Th th f th t opinion assisted In the
~p$tl&*of thTsayawoinod lns~r~~?%e underscoredlanguage
because of proposals which had been made to permit county ex-
ecutive committeesto conduct absentee voting In primary elec-
tions and in recognitionof the possibility that the Legislature
might provide In subsequentlyenacted special statutes that In
certain elections the absentee voting was to be conducted by
some other officer. Seatlon 7a does not undertake to designate
any other officer to conduct absentee voting in particular types'
of elections,and until the Legislatureplaces this duty in
some other officer It remains with the county clerk In all
elections except municipal elections.
Section 3 of Article 7.14,afterproviding that the
commissioners court of a county may adopt voting machines for
use In elections In all or part of the election precincts of
the county, further provides:
"* *.* and thereupon such voting
machine shall be.used at any and all
electionsand primary elections,munlc-
lpal, county, district, or State held
In that county or any part thereof,
designatedfor voting, registeringand
counting votes cast at such elections
and primary elections,all sahool and
bond elections also shall be conducted
bv the use of votlna machines In those
&unties orparts &ereof where such
machines have been adopted, where the
@~Wspeclflcally makes their use obliR-
atory." (Emphasis supplied.)
In this opinion we are not passing on whether this statute makes
use of voting machines at regular polling places mandatory In
school elections. The answer to your question on absentee
voting is unaffected by the question of whether their use for
regular voting is mandatory or permissive.
SUMMARY
The county clerk has the duty of
.conductingabsentee voting by paper
ballots In electldns held by school
Hon. Jules Damlanl, Jr., page 5 (~~-1065)
districts,both In counties where voting
machines have been adopted for use and
In counties where paper ballots are used.
Yours very truly,
WILL WILSON
,AttorneyGeneral of Texas
MKW:ljb
APPROVED:
OPINION C~NMITTEE
W. V. Geppert, Chairman
LawrenceHargrove
Howard Maya
w. Ray scruggs
Sam Wilson
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt