Honorable W. C. McClaln
District Attorney Opinion No. Q-2298
Conroe, Texas Re: Interpretation of law
regulating absentee
Dear Sir: voting, Article 2956j
Revised Civil Statutes,
This is in reply to your letter of April 26, 1940,
requesting the opinion of this Department interpreting Article
2956, Vernon’s Annotated Civil Statutes, dealing with absentee
voting. Your request was prompted by an inquiry from the
County Clerk of Montgomery County and the following questioni
are asked:
“Question 11 Is it legal to send out a ballot
or t6 permit a Notary Public to take out a ballot and
application and have the elector slgn the application
and vote the ballot not In the presence of the County
Clerk, vhereas the law provides that the ballot shall
be returned by mail?
“Question 2: In Section 2 a provision is made
that if the. application is on account of sickness or.
physical disability a certificate of a licensed physi-
clan.‘ shall accompany it. It seems to me it would be
impossible for a physSclan to determine 35 or 20 days
ahead In many cases whether or not an elector would
be able to attend the polls, and I will ask you, where
sickness Is the basis of the application, if under
that section an elector would not have to make his ap-
plication and vote on the day of election, there.being
no time specified.
“Question 3: Does not subdivision 3 have applica-
tion only to electors who are absent from the county of
their residence?”
Artlclti 2956 reads, in part, as follows:
“Subdivision 1. Any qualified, elector of thls
State who 1s absent from the county of hls residence,
or because of sickness or physical dlsablllty can
not appear at the poll place in the election precinct
Honorable W. C. McClaln, Page 2
of his residence, on the day of holding any general,
special, or primary election, may, nevertheless, 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 elector in case of latter’s inability to make
such written application because of physical disability.
Such application shall be accpmpanied by the poll tax
receipt or exemption certificate of the elector, or, in
lieu thereof, his affidavit in writing that same has
been lost or mislaid. If the ground of application can
be sickness or physical disability by reason of which
the elector cannot appear at the polling place on election
day, a certificate of a duly licensed physician certifying
as to such sickness or physical dlsabllltg shall accompany
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 appear-
ance before the county clerk of the county of his resi-
dence at his office and delivering to such clerk his
application aforesaid, shall be entitled to receive,from
said clerk one official ballot which has been prepared
in accordance with law for use in such election, which
ballot is t-hen and there, In the office of said clerk of
said county, and In the presence of said clerk and Of no
other person, except the vltness who is authorized to
assist elector in certain cases as hereafter provided,
to bejmarked by the elector, or by sa,ld witness in case
of. physical dlsabilltg of elector, so as to conceal the
marklncr and same shall. In the presence of the clerk,
be dep&ted ln[a ballot envelope furnished by said cierk,
vhlch 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 sub-
stantially the following form, to be filled out and signed
by the elector; provided, however, that in case of the
physical disability of elector preventing him from fllllng
out and signing such affidavit, then the witness who assisted
the elector in marking his ballot shall fill out and slgn
affidavit for and in behalf of elector and shall also sign
his, wltness”.nsme as prescribed In the following form:
Honorable W. C. McClain, Page 3
State of
C,ounty of
T -, do solemnly svear that I am a Resl-
dent ‘0; Precinct No. in -~~ I
l;ounr;y, ana
am lawfully entitled to vote at’the election to be held in
said precinct on the day of
that~ I am prevented from appearing at the polling ilace in
said Precinct on the da,te of such election
ness). (physical dlsabllltg), (or because
County) (elector to signify one of foregoing
reasons I that the eiclosed ballot expresses my wishes,
independent of any d%ctatlon or undue persuasion of any
person; that I did not use any memorandum or device to aid
me in the marking of said ballot.
Signature of elector
By:
Name of :wltness who
assisted elector in event
of physical dlsablllty.
“Subdivision 4. At any time’ not more than twenty (20)
days, nor- less than three (3) days .prlor to the date of such
an election, such.elector who makes written appllcatlon.for
a ballot as provided for in Subdivision 2 hereof, shall be
entitled to have his ballot cast at such an election on com-
pliance with the following proVisIons:.
“The ,appllcatlon, including fifteen cents (15#) to
cover postage, shall be mailed to the County Clerk of the
elector’s resi’dence whose duty it &all be forthwith %o
mail to such :eledttir a’blank .offlcitil ballot and ballot
envelope as prqvlded 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 lnabllltg ~to mark suoh
ballot because of physical disability, in the presence of
a Notary Public or other persons qualified under the law
to take acknowledgements, and in the presence of no other
person except said witness and/or such officer, and in such
manner that~s~ueh 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 sec~urely sealed, the endorsement
filled out, signed and sworn to by the elector, or in case
of physical dlstibillty, then bjr the said witness for and In
behalf of ~said elector,. and “ce&ifled by ‘such officer and
then ‘mailed by ‘said ofHceP, postage, prepaid, to the County
Clerk.’ (Underscoring ours)
Honorable W. C. McClaln, Page 4
You may note from reading this article that two
methods are provided for voters who, because of absence from
the county of their residenoe or because of sickness or physl-
cal disability, cannot appear at the poll place on the day of
election.
The first method is by written application signed by
the elector or a vltness at his direction, accompanied by a
poll tax receipt or exemption certificate, or, in lieu thereof,
his affidavit in writing that the same has been lost or mislaid.
If the elector claims the privilege of voting by absentee ballot
on the ground of sickness or physical disability a certificate
of a duly licensed physician certifying as to such sickness or
physical disability must accompany the application. The appllca-
tlon, together with fifteen cents to cover postage, must be
mailed to the County Clerk. Upon compliance with these requi-
sites, the elector will be entitled to have his ballot cast at
any time not more than twenty norlless than three days prior
to the date of the election, and it is the duty of the county
clerk within this time, forthwith to mall the elector a ballot
vhich will be re-mailed to the county clerk by the elector.
For further particulars, ve refer you to Subdivisions 2 and 4
of Article 2956.
The se~cond method is provided in Subdivision 3 of
Article 2954, namely, by the personal appearance of the elector
before .the county clerk at any time not more than twenty or less
than three days prior to the date of the election. For further
particulars, refer to Subdivision 3 of Article 2956.
In ansver to your first question, therefore, we must
advise that Article 2956 regulating absentee voting does not
provide as a method the suggested procedure by vhlch a notary
public will take out blank application and ballot, and have
the elector sign the application and vote a ballot which will
then be returned to the county clerk by the notary.
In this connection we call. your attention to the case
of Sartwelle v. Dunn (C.C.A. 1938) 120 S.W. (26) 130. There
almost the identical procedure was followed. It appeared that
ballots were taken from the county clerk’s office by a notary
and a candidate who vere soliciting votes, to the residences
of certain electors without request from them. Each expressed
a willingness to vote, however, and the ballots vere then and
there marked by the notary at their direction. The court said:
I,. . . We recognize the general rule that the will
of the electors should be respected when expressed at
the ballot, but we are of the opinion that an elector
exercising the right of suffrage through the medium
provided by the absentee voting statute should at least
substantially comply Vlth the requirements of such statute.
Honorable W. C. McClaln, Page 5
To hold that ballots such as these were cast in substantial
compliance with the statute vould Ignore the plain and ex-
press provisions thereof and open the avenues of fraud,
deception and intimidation through absentee voting In the
conduct of electioni.
"We are of the opinion that the trial court erred
In refusing to sustain the challenge to these votes."
We wish to point out that we are not passing upon the
validity of absentee votes cast In a manner other than that pro-
vided by Article 2956. We confine our opinion to the duties of
th$ county clerk with respect to the casting of absentee ballots.
It is his duty to see that there is a substantial compliance with
the terms of the statute; and Insofar as his duties are concerned
the suggested procedure does not so conform.
In answer to your second question, the time for absentee
voting is s eclfled as 'not more than twenty(20) days, nor less
than three P3) days' prior to the date of the election. This
'Urn6 is set forth in subdivision 4 for those absentee voters deslr-
$ng to follov the procedure provided in subdivisions 2 and 4 of
Article 2956. The last day application may be made and ballbt
cast by one unable to participate because of physical disability
or sickness Is the third day prior to the date of the election.
If the election Is to be held on a Saturday, Tuesday midnight
is the deadline.
Your third question 1s whether or not Subdivision 3
relates only to electors absent from the county of their resi-
dence. If you will refer to Article 2956, quoted above, you
vi11 note that we have underscored those portions of subdivision3
wherein specific attention has been given by the Legislature
to cases of physical disability of the elector or illness.
You. are, therefore, respectfully advised that not only
electors who.will be absent from the .county of their residence
on the day of holding the'electlon, dut also those unable to
atteng beCause of sickness or physlcal~dlsablllty may avail
themselves of the method provided in subdivision 3 of Article
2956 for casting absentee ballots.
Yours very truly
APPROVEDJUN 7, 1940 ATTORNEY
GENERALOF TEXAS
S/ GROVERSELLERS By ,S/.WALTERR. KOCH,
FIRST ASSISTANTATTORNM Assistant
GENERAL
By S/ JAMESD. SMULLEN
JDS:BBB
Am! APPROVED Opinion Committee, by BWBChairman