4‘aE .ccTl-ORNEY GENERAL
OFTEXAS
AUSTXNILTE~S
Hon. John R. Shook Opinion No. O-4897
Criminal District Attorney Re: Construction of
Bexar County Article 2956, R.C.S.,
San Antonio, Texas respecting absentee
voting .
Attention: Jay Sam Levey,
Assistant
Dear Mr. Shook:
We beg to acknowledge receipt of your letter respect-
ing the construction of Article 2956, of the Revised Civil
Statutes, your questions propounded being as follows:
“1. Where an elector intends to be absent
from the county upon election day, mails in his
application to the county clerk within the period
described by law, together with the statutory fee
to cover postage, is It the duty of the county
clerk to mail a ballot to such elector to his ad-
dress located within the county?
“2. On what day does absentee voting begin
and on what day does absentee voting end for the
general election to be held on November 3, 19421
“3 . When do absentee ballots have to be in
the hands of the county clerk in order to be
counted in the election?”
We answer your questions categorically, giving brief-
ly our reasons for such answer, in the order propounded by you,
as follows:
1. Subdivision 3 of Article 2956 authorizes the
county clerk to deliver to an elector desiring to cast an
absentee vote (such elector making his personal appearance
before the county clerk) within the time there specified, and
provides for the marking and depositing of the ballot by the
elector.
Subdivision 4 relates to the application for a ballot
by an elector, as follows:
-- -
Hon. John R. Shook, page 2 (O-48,97)
“The application, including fifteen cents
(ls#) to cover postage, shall, be maiLed to
the County Cl.erk of the elector’s residence
whose duty it shall be forthwith to mail to
such elector a blank official. ballot and ballot
envelope as provided in Subdivision 3, which
ballot shall be marked by elector, or by wit-
ness 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 persons qualified
under the law to take acknowledgments, and in
the presence of no other person except said wit-
ness 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 disabilit,y of said
elector, deposited in said envelope, the enve-
lope securely sealed, the endorsement filled cut,
signed and sworn to by the elector, or in case o:f
physical disability, then by the said witness for
and in behalf of said elector, and certified by
such officer and then mailed by said officer,
postage prepaid, to the County Clerk.”
It is thus apparent that Subdivision 2 deals with
the elector who desires to cast his absentee vote by deliver-
ing same personally to the County Clerk, and Subdivision &
deals with the elector ,who contemplates mailing h,i.s tXM.o-t
to the County’ Clerk. Subdivision 2 necessarily requires the
personal. appearance of the elector before the clerk, whereas
Subdivision 4 clearly does not. It specifically authorizes
the clerk to mail the ballot and envelope to the applicant,
and likewise authorizes the elector to mail ,the ballot back
to the clerk duly marked, Your first qu.estiori, therefore,
is answered in the affirmative.
In Opinion No. O-4700, addressed to Hinore.ble Ben
J. Dean, District Attorney, Breckenridge, Texas, we answered
five specific questions with respect to the authority of ~the
county clerk to send to an elector an absentee ballot rais-
ing points of irregularity in the application therefor, which
opinion clearly involved your question above, and as clearly
implied the right and duty of the clerk to send out such a
ballot. A copy of that opinion is attached hereto.
2. Subdivision 5, dealing with the receipt and dis-
position of ballots by the clerk, is as followsr
. .
Hon. John FL Shook, page 3 (O-4897)
“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 en-
close same together with the elector’s appli-
cation and accompanying papers in a larger
or carrier envelope which shali be securely
sealed and endorsed with the name and official
title of such clerk, and the words ‘this envel-
ope contains an absentee ballot, and must ,be
opened only at the polls eon election day,’ and
the clerk shall forthwith mail same, or deliver
it in person, to the presiding judge of election,
or to any assistant judge of election, in said
precinct o
“And ballots mailed out by the county clerk
within the legal tfme, but not received back by
him on or before the third day prior to the elec-
tion on the day of elec,tion, shall not be voted,
but shall remain Ia the custody of the county
clerk during the thirty (30) day period provided
in Subdivision 6.”
Subdivision 6 deals with the final casting of the
ballot, and reads as follows:
“On the day of such election, and in the
presence of the election officers, and the
supervisors, if any, one o,f the judges of
election shall, between the hours of 2:00 and
3:OO o’clock open the carrier envelope only,
announce the elector ps name and compare the
signature upon the application with the signa-
ture upon the affidavit on the ballot envelope.
In case the election board finds the affidavits
duly executed, that the signatures correspond,
that the applicant is a duly qualified eleotor
of the precinct, and that he has not voted in
person at said election they shall open the en-
velope containin: the e Eector’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 exam-
ined and having endorsed the ballot in like man-
ner as other ballots are required to be endorsed,
deposit the same in the proper ballot box and
enter the elector’s name in the poll list the same
as if he had been present and voted in person.
If the ballot be challenged by any election
‘ .
Hon. John R. Shook, page 4 (O-4897)
officer, supervisor, party cha~llenger, or other
person, the grounds of challenge shall, be heard
and decided according to law, including the con-
sideration of any affidavits submitted in sup-
port of or against such challenge. If the ballot
be admitted, the words ‘absentee voter’ shall be
set down opposite the eleotor’s name on the poll
list. If the ballot be not admitted, there shall
$endorsed on the baok thereof the word ‘reject-
, and all rejected ballots shall be enclosed,
securely sealed, in an envelope on which words
‘rejected absentee 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 man-
ner as provided for the return and preservation
of official ballots voted at such election. In
all cases the application poll tax receipt or ex-
emption certificate, ballot envelope and the af-
fidavits and certificates accompanying same shall
be returned by the officers of election to the
county clerk who shall keep all such papers ex-
cept poll tax receipts and exemption certificates
for one (1) year and shall return poll tax re-
ceipts and exemption certificates to the voter at
any time after the same have been returned to him
except in case of challenge when such poll tax re-
ceipts and exemption certificates shall be held
thirty (30) days and as much longer thereafter” as
any court or reviewing authority may direct .‘I
If, by the words “on what day does absentee voting
begin”, you mean the act of the voter in depositing or mail-
ing to the clerk his vote, the answer is “not more than twenty
days prior to the date of the election.” As applied to the com-
ing election on November 3, that would be October 14. In like
manner, the absentee voting ends not less than three days prior
to the election, which, in the coming November election, would
be midnight, October 30.
We held the same in Opinion No. O-4455, addressed to
Honorable Dan U’. Jackson, District Attorney, Houston, Texas,
a copy of which we hand you herewith.
3. Your third question is answered by the last para-
graph of Subdivision 5 above quoted; that is, no ballot not
received back by the clerk on or before the third day prior to
the election shall be voted. A ballot in the United States
Hon. John R. Shook, page 5 (O-4897)
mails not actually received by the clerk before midnight of
Friday, October 30, should not be voted or Counted in the
election of November 3*
Very truly yours
ATTORNEYGENERALOF TEXAS
By /s/ Ocie Speer
Ccie Speer, Assistant
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
APPROVEDOCT 13, 1942
/s/ Gerald C. Mann
attorney general of texas
os-MR:wb
Enclosure