::
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Konombia T. it. JOhnSOn
County .,tt3rnoy, iiertge3 COUEty
iSg Ltike, Teas
uuzir 2. Johnson:
upon the nbu7e
.7, requests
County Clerk, should &core ab3c:;teo bellots 80 rz-
ccivod or a:ethr he ohculd dcliVer then t0 tbY eiSC-
ti;n Judges for their cOiSi~e~::tioll and. deterzimtion
a s to ::k;?.i.r they diould be caii.:td or nst. The rs3t
frec,;c..t ~:CGQ~US of !iOtVnbsectce bdl~t envelo-es !i1~6
teen received by hia in the ?zst no illustrated by
Sxhibits ‘.L,’ ‘3’ and ‘G’ stts.c,hed.
%hould the County Clerk ignore as void ub-
ocntee ballot emeloges which ore not properly filled
in, signed and sworn to by the elector when received
by him through the mils 3r should said County Clerk
doliver such absentee ballot e:Jvclo:es to the election
ti judges for then to deterxlne whether the ballot thore-
in should be considered or not?
“bhat would be the application of this quce-
tlon to an absentee ballot ezvelo?e which hos not been
filled Fn at all and which has not been sighed or 3;:orn
to by the elector eo shown by Sxhibit’j,’ where the ab-
scnteo ballot envelope h,:s been pi:rtlally filled in but
not signed or sworn to as shown by Lxhiblt ‘B,l and
where the absehteo ballot envelope has been filled in
and signed by the elcxtsr bat not sworn to before a
Notary Publia or soxe cfficm an?Aorizod to t Ike acknowl-
,‘adg~~ents as shown by Lzhlbf,t ‘C’:’
“The Costy Clerk is only interested in whut
disporltion he should x2e of such nbscntee ballots;
that is, ehethrr he should or should hot deliver them
to the presiding judge of election, or to any assist-
ant judge of eleotion, in the proper precinct.
*It is my opinion t!%t absentee ballot envelopes
i&OC qogerly filled in, signed md cxorn to by the eleo-
tor as provided by lnw are void and should be ignored
by the County Clerk when received by bin through the rzuLls
c;i:d should not be delivorod to the judges of electl~n to
b3 considered a8 ballots In the election beiag hold.
*I tail to find my decisions by our appell:,to
courts on tho subjeot, but BubdivisTon 4 of Article 2956
provides the zanner in which absmtee ballots should bo
cnst * to-wit:
Honortible T. .H. JOMB;Il, px~e 3
“’ l + 4 which ballot shall be a a sk ed by
elector, * * * in the presence ot a Notpirg
Fubllo or other persons qualified under the
law to take acrnowled~mmts, l * l and suoh
ballot shall th e n In the presenoeLof :uoh
ofrlcer be folded by the elootor
deposited in stiid envelope, the envelope
securely sealed, the endorsam!nt filled out,
nirJned ;ad oworn to by the elector, or in
case of disability, then by the said witness
for and in behalf of said eleotor, and certi-
fied by euch officer and then nailed by=
officer, postage preyuid, to the County Clerk.’
“And Subdivision 5 ot said ..rtiole 2956, Revised Civil
Itatutcs of Texas of 1925, seta out what the County
Clerk is to do with said absentee ballot when rcoeivad,
a8 r0ii0w8:
**Upon receipt of any sach ballot
sealed in its ballot envelo:m duly en-
c0rsea, the clerk ah‘?11 keep the sa?le un-
opened until the second day prior to suoh
election, acd shall then-enclose the sazz
tosether with the eLector's applfcation
and acoollpanglng papers, in a larger or
carrier envclojm which shall be securely
sealed aad endorsed with the nme aod of-
rroiol tftle or such clerk, and * * *
the clerk shall forthwith zail otme, or
deliver it in person, to the presldlng
judge of election, or to any assistant
judge of elootion, in said greoinct.'
(See firtiolo 2956 ior duties or eleotlon
judges as to such ballots).”
Subdivision 5 or ..rticle EQSO, Vernon*s Annotated
Civil Statutes, provides:
"Upon receipt oi uoy such.bnllot (absentee)
sealed in ita ballot enveloye duly endorsed, the
’Ifonorabie T. A. J ohsson, p-age 4
county Clerk shall ‘mep the sme unopened until
tho second day prior to such eleotion, and shall
then enclose saize together with the eleotor’s
a?plloatlon and aooo~?i~n$ing pupcrs, in s larger
or currirr envelope end the olcrk ehall
forthwith mall sa!:.B, or d&lver it in person, to
the presiding judge of election, or to any assist-
ant judge of eleotioa, in said precinct.*
Then follows another paragraph of seid Subdivieion
5 vihioh requires “bclllots &led out by the county clerk within
the legal tlm, but not reoeived*b:c$ by him on or before the
ts,?rd day prior to the aloction shall not be voted, but
shall re;;l:lin in the oustody of the co&ty alerk during the thirty
(50) day psriod provided for in Subdivision 6 of’ said hrtiole.”
It will therefore be noted that while express pro-
vision is a&e for the custody of absentee ballots not received
b;lck by the county clerk on or before the third day prior to the
election, no suoh provision is made for the disposition of eb-
sentce ballots received by said clerk in ballot envelope6 not
Dulp endorsed.
A anreful exazAnution’oi Subdivision 6, bowever,
cletirly implies that such b:illots shnll be emiled or delivered
in person by the county clerk in like tinner and to the proper
aieotion ofriolals as required oonoernlng bdlota in duly en-
dorsed ballot envelo?es.
Said Subdivision 6 oontains, among others, the
following provislone:
*In case tr‘e olectlon botird rind8 the afri-
davits (on brAlot envelopes) duly exaouted, thtt the
sign-itures (upon the opplb;itfon and upon the affidmit)
correspond, t!lJt ~the applloazt is a duly qualiried
elector or the :Jreclnot, aad tlzt he has not voted
in person at said election, they shall open the envelope
containing the 61eOtor’s ballot * a * If the ballot be
adtittod, the word8 ‘absentee voter’ shall be aet down
opposite the elector’s nu:ze on the poll list. If the
ballot be not admitted, there Call be endorsed on the
back thereof the word *reJected,* and all rejeoted
.bsllota shad be anclosed, sco,;relp sealed, in an
envelope on whlon word0 *rej?Jcted ubasntoe bullets’
have boon virittcn, topthdlr with a stata;zent of t>e
precinct n;ld the dote of election, signed by the
judaus and clerks cf oleotlon snd returned in the
s+;wa manner :%a 2rovidsd ?or t!ie racurn end poser-
v::tlon irt official ballots voted ot ouah election.
In all ani tha acgl:c.-rtion ?a11 tax receipt or 8x-
elqti,on aertiflcate, bsll,ot envelope o;ld the affids-
vits and csrtlffo.%tea accom~onying B~IX shall be re=
turnad by the ofrlccrs of aleotion to the oounty clerk
who s?:sl.l kcop all such p.ciperzJ ene?t poll tex ra-
ceipts and exe.qAion certificates for one (I) year
and shall return poll tilx recai%s and exesibtiol;
ceztific~ztss to ,tl;o voter * * *‘sxcept in &se or
ch;;:llen~o 7 * *.” (&qhasia our>-)
Tnus, It we6 clearly tho lntc3tion oi ths it?Ril3h:ture
t.h;lt g,l.l ;lbsantec-,be],lot e??velooe~ecefvod by the county-clerk
zn or bcroro the third dsy erior to tho olectlon;‘toi~etber with
their oo:;tcnts and the other instr&?ts mentioned in Aubdiviaian
6, should Do mailed or delivered in aeroon by tbc couht y clerk 3s
thcreln directed. Otharwino, how could the election board de-
tomine whether or not the aPfldavits (on the ballot anvelo~pes)
hid been duly executed, or that the s2gnaturss (upon the ag;llica-
tlon ad u?on tho nffiduvlt) corres~ohdY Alao, how nould said
hoard be able to detemine the other rictters covered by ~~ubdivl-
eioa 3 and comply with its provlslons7 It ccrtaialp coald not do
so if eald absentee b&lot onvelogas and eooom~anylng papers
were not delivered to it.
Suppoose the aboeiltee voter’s oppUaatioa, because
of his physical dlsabllity, is yreasred and signed by one witness
zrid oaid voter’s affidavit OB the ballot envolo,m 1s filled out
md sig,ned by a %itiless other th!m the first. Could it be con-
teaded tht;t anyone, other tbn& the pro?er olectloh offlolnl&,
could deto&%dne Whethw said ballot envelope hid been “duly
ecdoraed?”
9up?oso ths eemty clerk should fail to deliver re-
turnad b;;ilots in a~~vcl.opos -sot duly endorsed a;ld an election
contest shouid thiredtof emue. Xabarrasment and serious
coneequences xi6ht saslly result, ospeclaUy ii such bnllots should
be lost or destroyed. The Clerk’s oontentlon as to lack of proper
endoraeslent could and probi;bly would be net by ah emphatio denis
by the absentee elector. MO RL?~ iimie aould arise If the nbeentee
ballots in question are delivered by the county clerk in the
war groscrlbod In Subdivision 6, SU3ra1
In the oeae of Sartwalle v. Dunn (Clv. App. 193’3)
120 5. ii. (Zdj 130, the cou.rt used this SigliffCaDt ~lsngusge:
Ve recognize the-general rule th?t the
~~11 of the &zctcrs should be xesimtad when ex-
prsooed at the bullet, but ~23~r6 or the 0pini0n
th%t 811 elector cfitrcisir.g the r; ght of suttrcge
through the z?dlm grovidcd by the absentee voting
statute should at le.&
the roguirezents of such statute.
Fho, tbea, is te determine whether said reguire-
,zents h~.ve been substaatiallv ooqlied with? Ho such authority
is given the cm--t is clearly the dyty of the respec-
tive Drecinot eleotlon off ioials.
In, the OABB of ‘in~~~t3g V. 3llhel;ll (civ. ADD), 52 s.
‘ii. (M) 757, error refused, it WAS held that:
w’i’he will of the leg,al voter5 as expmsed
at the polla $8 the utter cf 3mm3uht conearn, ma,
in tne absence or any showing or fraud, or reasonable
lniiio;rtlon that such wlL1 .has not been ralrly expressed
and the evidence fhcre.;f oroperly orooorved, the oourts
heve boon liberal in construing and enfcrciag a8 dire+
tory onle the provision8 of the election lows whlChe
not upon their face cle&ly mandatory.” (.Emghssle ours)
In the saae case, the votes of seven absentea votoxs
v:ereattaaked, five ;;f %hozl did DOt deliver. or exhibit their poll
t;Lx receipts to the oounty clerk Mhen obtaining their ballote, 35
provided for in Article 2986, E. 3. The county o lerk .mde ho
ouch dezand, althmgh said five voters had paid their poll t’:xa5
and were quallfied eleotors. Rogerding these votes the court
‘.
.. .
Honorrtble T. A. Johnson, &ge 7
said:
*That they expressed thair ~0111 by an
othcrwlae legal bullet, that euoh ballot wDB not
tampored Nith, but was oouatad, io not denied.
The proper time and pltice to h:sve raised that
question would hove been, we think, by challen6e
or these votes when tendered to the election of-
ficisls. aa provided for in Art. 2z3$.t There fs
no indication that this wtna done, ; cud we
decline to dlaSranchioe them beoauvs administra-
tive orficiala ho0 railed, * l + to aisohorge the
-ties lmpoeed PpOA them by the 8tatute.v
( r;mphasie ours)
Aleo see Stratton v. Hell, (Civ. irpp.1 90 3. b. (2d) 863; Booker
V. Foster, (Civ. Bpp.) 19 S. x. (2d) 911.
Clsarl.p, theretore, the duties of the county clerk
in connectfon withtbse matter8 aro minlsterlal and not discre-
t ionnrg. iie is nut vested with authority as to what ballots shall
or shall not be au~atod. Such authority is treated ln the proper
ehCtiOA OtfiCial8. The presumption obtains that said oiiiclolf~
will perfonn their duties in a l~~wful manner. Should they admit
AbJeAtW bclllots which should k3ve been rejeoted, or should they
raject suoh Bsllotn which should hove been admitted, ample pro-
vision ie xde ror the preservation of both. The evidence ia
thus legally preserved in the event of a contest. A serious
question in this connection would be presented if the oounty olerk
should retain any euoh absentee ballots in his pO33es51On. A
more soriom Cuostlon would nrlse in the event sold clerk should
destroy same. These matters lzre very serloua and involve grave
conneguencee. The Best way 1s the safe way. The safe way 18 tar
the county olerk to mail or deliver to the proper election offi-
cials all returned absentee ballots in their envelopes, exceat
those whloh clre not received back by him on or before the third
day prior to the election. By so doing he will perform his du-
ties in the manner oletirlg implied by the statute; and he will
not violate sny of the provisions of Articles 216 to 231, inclu-
sive, of the Penal Code of Texas, and all amendment8 thereto.
Fortunately, the Yupreae Court of Texas, in the
rather reaont ease or aood V. State (1939). 1213 5. W. (24) 4,
,. :
.
Honorable T. rC. 3~hnaon, p-.ge 0
hn8 hit n0 doubt as to the ffi;aning 0r Seotion 5 or mtlolo
2956, aioreeald. The fUlloWing quotation from ssld oaae 1~
unambiguous and very aerinite:
nljubdlvlsion 5 of thio Artlole (2956)
makes it the duty of the county clerk, when he
recolves an absentee ballot, to keep same un-
opened until the eeoond day prior to the eleo-
tion. It i6 then mado his duty to enclose the
ballot with the elector*8 application theretor
in an envelope, securely sealed, etc., and mall
or dellvcr the same to the proper preeidlng or
oeslstant eleotlon judge.”
Let it be derinitely mderstood that we are not
pneslng upon the legality or such absentee ballots. Such is a
matter ror determlnatlon prlmarllp by the proper election otfi-
olnls in eaoh preolnot.
Youri very truly
ATTCZZEYGEWRALOF TEXAS
p
By . -
L. H. Blewellen
I.HF:EP
Untitled Texas Attorney General Opinion
Combined Opinion