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Honorable Ben J. Dean.
District Attorney’
90th Judicial District of Texas
Breckenridge, Texas
D&r Sir: Opinion No. O-7069
Re: Absentee voting by veterans un-
der the provisions of Art. VI,
Sec. .2a, Constitution of Texas,
and Art. 2956, Revised Civil
Statutes of Texas
We have your recent request for an opinion which reads in
part as follows:
“Article 2956 R.S. with reference to absentee voting,
provides in sub-division 2 thereof that an elector who de-
sires to vote by absentee ballot shall make an application
which shall ‘be accompatiied by the poll tax receipt or ex-
emption certificate of the elector.’
“since a man recently in service is not required to
secure an exemption and the tax assessor-collector should
not issue one I should like to ask you the following question:
“When a service man whose rights to vote is secured
by the constitutional amendment Section 2a, Article VI of the
Texas Constitution, desires to vote by absentee ballot, in
what manner is he to proceed in order to get an absentee
ballot, since he does not have an exemption to send with his
application for such ballot?”
1n our Opinion No. O-7034, copy of which is enclosed here-
with, we carefully considered the effect of Art. VI, Sec. 2a. of the Con-
stitution upon prior election laws, pointing out that this constitutional
amendment was adopted after the last session of the Legislature and that
therefore the Legislature has not amended the old election statutes since
its adoption. in that opinion, although we did not discuss absentee voting,
we held that a person who comes within the terms of the constitutional
amendment, and who is otherwise a,qualified voter, is entitled to vote even
though he has not paid a poll tax and has not obtained a certificate of ex-
emption, and even though his name does not appear on the list of voters
prepared by the tax collector. We further held, in that opinion that if a
person who comes within the terms of the constitutional amendment, and
who is otherwise a qualified voter, shows by his own oath that he is a
Hon. Ben J. Dean - Page 2
qualified voter, the election judges cannot legally refuse to accept his
vote. In discussing this question, we said:
“Such a person is entitled to vote ‘in any election
held under the authority of the laws of this Stats, during
the time the United States is engaged in fighting a war,
or within one year after the close of the calendar year
in which said war is terminated,’ if he shows by his own
oath (and in a city or town of 10,000 or more inhabitants,
by the oath of a well-known resident):
“1. That at the time of the holding of such election
he is, or within 18 months immediately prior to the time
of holding such election was, a member of the armed for-
ces of the United States or of the Armed Force Reserve of
the United States, or of any branch or component part of
such armed forces or Armed Force Reserve, or the United
States Maritime Service or the United States Merchant
Marine,; and
“2. That he is subject to none of the disqualifications
stated in Art. VI, Sec. 1, of the Constitution of Texas; and
“3. That he has attained the age of twenty-one years
and is a citizen of the United States and has resided in this
State one year next preceding such election and the last six
months within the district or county in which such person
offers to vote.*’
Art, 2956, Revised Civil Statutes of Texas. provides in part
as follows:
“Subdivision 1. Any qualified elector of this State who
is absent from the county of his residence, or because of
sickness or physical disability can not appear at the poll
plac~e in the election precinctof his residence, on the day of
holding any general, special, or primary election, may, never-
theless, cause his vote to be cast at such an election in the
precinct of his residence by compliance with one or other of
the methods hereinafter provided for absentee voting.
“Subdivision 2. Such elector shall make application
for an official ballot to the county clerk in writing signed
by the elector, or by a witness at the direction of said elec-
tor in case of latter’s inability to make such written appli-
cation because of physical disability. Such application shall
be accompanied by the poll tax receipt or exemption certifi-
cate of the elector, or, in lieu thereof, his affidavit in writ-
ing that’sa- has been lost or mislaid. If the ground of
Hon. Ben J. Dean - Page 3
application be sickness or physical disability by reason of
which the elector can not appear at the polling place on elec-
tion day, a certificate of a duly licensed physician certify-
ing as to such sickness or physical disability shall acc~om-
pany the application.
‘Subdivision 3. At any time not more than twenty (20)
days, nor less than three (3) days, prior to the date of such
an election, such elector making his personal appearance be-
fore the county clerk of the county of his residence at his of-
fice and delivering to such clerk his application aforesaid.
shall be entitled to receive from said clerk one official bal-
lot which has been prepared in accordance with law for use
in such election, which ballot is then and there, in the office
of said clerk of said county, and in the presenc’e of said clerk
and of no other person, except the witness who is authorized
to assist elector in certain cases as hereinafter provided, to
be marked by the elector, or by said witness in case of physi-
cal disability of elector, so as to conceal the marking, and
same shall, in the presence of the clerk, be deposited in a
ballot envelope furnished by said clerk. which envelope shall
bear upon the face thereof the name, official title and post
office address of such county clerk, and upon the other side
a printed affidavit in substantially the following forum, to be
filled out and signed by the elector; provided, however, that
in case of the physical disability of elector preventing him
from filling out and signing such affidavit, then the witness
who assisted the elector in marking his ballot shall fill out
and sign affidavit for and in behalf of elector and shall also
sign his, witness’ name as prescribed in the following form:
“State of
“County of
“I, , do solemnly swear that I am a Resi-
dent of Precinct No. , in County, and am
lawfully entitled to vote at the election to be held in said pre-
cinct on the day of I 19 ; that I am pre-
vented from appearing at the polling plaxsaid Precinct
on the date of such election because of (illness), (physical
disability), (or because of absence from County),
(elector to signify one of foregoing reasons) that the en-
closed ballot expresses my wishes, independent of any dicta-
tion or undue persuasion of any person; that I did not use any
Hon. Ben J. Dean - Page 4
memorandum or device to aid me in the marking of said bal-
lot.
“Srgnature of elector
“By:
Name of witness who assisted
elector in event of physical dis-
ability.
‘Subdivision 4. At any time not more than twenty (20)
days, nor less than three (3) days prior to the date of such
an election, such elector who makes written application for
a ballot as provided for in Subdivision 2 hereof, shall be en-
titled to have his ballot cast at such an election on compli-
ance with the following provisions:
“The application, including fifteen cents (15c) to cover
postage, shall be mailed to the County Clerk of the elector’s
residence whose duty it shall be forthwith to mail to such
elector a blank official ballot and ballot envelope as provid-
ed in Subdivision 3, which ballot shall be marked by elector,
or by witness at the direction of said elector in case of the
latter’s inability to mark such ballot because of physical
disability, in the presence of a Notary Public or other per-
sons qualified under the law to take acknowledgments, and
in the presence of no other person except said witness and/
or such officer, and in such manner that such officer cannot
know how the ballot is marked, and such ballot shall then in
the presence of such officer be folded by the elector or by
said witness in case of physical disability of said elector,
deposited in said envelope, the envelope securely sealed,
the endorsement filled out, signed and sworn to by the elec-
tor, or in case of physical disability, then by the said wit-
ness for and in behalf of said elector, and certified by such
officer and then mailed by said officer, postage prepaid, to
the County Clerk.
“Subdivision 5. Upon receipt of any such ballot sealed
in its ballot envelope duly endorsed, the clerk shall keep the
same unopened until the second day prior to such election,
and shall then enclose same together with the elector’s ap-
plication and accompanying papers, m a larger or carrrer
envelope whrch shall be securely sealed and endorsed with
the name and official title of such clerk, and the words ‘this
envelope contains an absentee ballot, and must be opened
only at the polls on election day,’ and the clerk shall forth-
Hon. Ben J. Dean - Page 5
with mail same., or ;deliver it in .pe.rson, to, the, presiding
judge of election,, or to~any,assist.a,nt judge of election, in
said precinct.
‘,knd ballots mailed out’bythe county clerk within
the legal time, but not received back by him on or before
the third day prior to the election on the day of election,
shall not be voted, but shall remain in the custody of the
county clerk during the thirty (30) day period provided in
Subdivision 6.
“Subdivision 6. On the day of such election, and in
the presence of the election officers, and the supervisors,
if any, one of the judges of election shall, between the hours
of 2:00 and 3:00 o’clock open the carrier envelope only, an-
nounce the elector’s name and compare the signature upon
the application with the signature upon the affidavit on the
ballot envelope. In case the election board finds the affi-
davits duly executed, that the signatures correspond, that
fhe applicant LS a duly, qualified elector of the precmct, and
that he has not voted in person at said election, they shall
open the envelope containing the elector’s ballot in such
manner as not to deface or destroy the affidavit thereon,
take out the ballot therein contained without permitting same
to be unfolded or examined and having endorsed the ballot
in like manner as other ballots are required to be endorsed,
deposit the same in the proper ballot box and enter the elec-
tor’s name in the poll list the same as if he had been pres-
ent and voted in person. If the ballot be challenged by any
election officer, supervisor, party challenger, or other per-
son, the grounds of challenge shall be heard and decided ac-
c~ordmg to law, including the consideration of any affidavits
submitted in support of or against such challenge. If the bal-
lot be admitted, the words ‘absentee voter’ shall be set down
opposite the elector’s name on the poll list. If the ballot be
not admitted, there shall be endorsed on the back thereof the
word %ejected,’ and all rejected ballots shall be enclosed,
securely sealed, in an envelope on which words ‘rejected ab-
sentee ballots’ have been written, -together with a statement
of the precinct and the date~of election, signed.by the judges
and clerks of election and returned in the same miLMer as
provided for the return and preservation of official ballots
voted at such election. In all cases, the application poll tax
receipt or exemption certificate, ballot envelope and the af-
fidavits and certificates accompanymg same shall be re-
turned by the offmers of election to the county clerk who
shall keep all such papers except poll tax receipts and ex-
emption certificates for one (1) year and shall return poll
tax receipts and exemption certificafes to the voter at any
Hon. Ben J. Dean - Page 6
time after the same have been returned to him except in
case of challenge when such poll tax receipts and exemp-
tion certificates shall be held thirty (30) days and as much
longer thereafter as any Court or reviewing authority may
direct.
“Subdivision 10. The county clerks, their deputies
and officers acting under this Article shall be consrdered
as Judges or officers of election within the scope of Arti-
cles 215 to 231, inclusive, of the Penal Code of Texas, and
all amendments thereto, and be pumshable as in sard Ar-
ticles respectively, provided in the case of judges or offi-
cers of election.” (Emphasis supplied)
Your request presents the problem of determining the effect
of the constitutional amendment upon the above-quoted provisions of Art.
2956. Although we have found no court decisions construing the consti-
tutional amendment, the decisions hereinafter discussed illustrate the
liberality with which the courts have interpreted the provisions of Art.
2956.
In the case of Stratton v. Hall, 90 S.W. (2d) 865 (El Paso Civ.
App. 1936), it was held that absentee ballots could not be disregarded be-
cause of non-compliance with Article 2956. In its opinion, the Court said:
“It appears to be well settled that in the absence of a
statute prohibiting the counting of ballots because of irregu-
larities either in preparing or casting, and in the absence of
fraud or of a showing that the returns were changed or tam’-
pared with, ballots cast by qualified voters should be counted.
Hooker et al. v. Foster et al. (Tex. Civ. App.) I9 S.W. (2d)
911; Ramsay v. Wilhelm (Tex. Civ. App.) 52 S.W. (2d) 757
(writ refused).”
In Lee v. Wbitehead. 182 S.W. (2d) 745 (San Antonio Civ,App.
1944) it was held that an absentee ballot was properly counted, although
not accompanied by the required application and affidavit of the voter as
required by Article 2956, where it was apparent that such omission was
due to no failure on the part of the voter.
In State v. Martin,, 186 S.W. (2d) 111 (Amarillo Civ. App. 1945).
the Court said:
“Article 2956 of the statutes contains provisions for
absentee voting and regulations governing the same. . . .
The detailed allegations contained in plaintiff’s petition al-
leged noncompliance with a number of these provisions.
h
Hon. Ben J. Dean - Page 7
.
The statute does not provide that in the case of violation
of any of the provisions alleged by appellant the ballots
shall not be counted. . .
”. . . Should the Legislature in its wisdom see fit
to provide that for any or all of such irregularities as
alleged by appellant, an absentee ballot otherwise valid,
should not be counted, that is within its province, but
the courts of Texas have throughout the years liberally
construed the statutory regulations affecting the right
of a’voter freely to cast his vote in the expression of his
free choice at an election and, in the absence of statu-
tory command, will not disfranchise him.”
It should be noted that subdivision 10 of Art. 2956, quoted
above, provides that county clerks shall be considered as election judges
within the scope of Arts. 215 to 231, inclusive, of the Penal Code of Texas.
hart. 217, Penal Code of Texas, which is one of the statutes referred to,
provides that:
,‘Any judge of any election who shall refuse to re-
ceive the vote of any qualified elector who, when his vote
is objected to, shows by his own oath that he is entitled
to vote, or who shall refuse to deliver an official ballot
to one entitled to vote under the law, or who shall wilful-
ly refuse to receive a ballot after one entitled to vote has
legally folded and returned same, shall be fined not to ex-
ceed five hundred dollars.”
In our opinion, the constitutional amendment nullifies and
renders inapplicable, as to persons who qualify thereunder, all provi-
sions of Art. 2956 relating to poll tax receipts and exemption certifi-
cates. Otherwise, the amendment would be meaningless and of no ef-
fect. Furthermore, it is clear from the cases cited above that failure
to comply with all of the terms of this statute will not disfranchise a
qualified voter.
If a person swears falsely as to his qualifications, or votes
when he knows that he is -not a qualified voter, or votes more than once,
he is subject to criminal prosecution. Arts. 232, 234, 236, and 2,41, Penal
Code of Texas. And, upon the trial of a contested election, fraudulent
votes are not counted. Art. 3053, Revised Civil Statutes of Texas.
In our opinion, an absentee ballot cast by a person who quali-
fies under the constitutional amendment may be counted although not ac-
companied by a poll tax receipt, an exem- certificate, or an affidavit.
However, the voter, in order to preclude any question as to his qualifica-
tions, may submit an affidavit, or statement under oath, setting forth his
qualifications. In the absence of such a statement, neither the county
Hon. Ben J. Dean - Page 8
clerk nor the election judges, in case of challenge, would be legally
bound to accept the ballot. But if the voter’s statement under oath shows
%hXlie is entitled to vote, his ballot must be accepted; and refusal to
receive it would violate Art. 217 of the Penal Code of Texas.
We see no legal objection to the use of a printed affidavit
form containing the requir~ed information, which could be submitted by
the voter with his application or with his ballot and transmitted by the
county clerk to the election officials.
Approved Feb 23, 1946 Yours very truly
/s/ Grover Sellers ATTORNEY GENERAL OF TEXAS
Attorney General of Texas
By /s/ Raymond A. Lynch
Raymond A. Lynch
Assistant
RAL:jt/cm
enclosure
Approved
Opinion
Committee
By /s/ BWB
Chairman