E NEW GENERAL
OF EXAS
Hon. Ben J. Dean Opinion No. O-4700
District Attorney Rer ConstPuction of the provisions of
Brec,kenridge, Texas Article 2956, Revised Statutes, with
reference to voting. by absentee, ballot.
Dear Sir:
Based upon the provisions of Article 2956 of the Be-
vised Civil Statutes of Texas, a,s amended, you request our opin-
ion as to the correct answer to several questions which we take
the liberty to restate as follows:
“1. Is the county clerk of a county authorized
to send a voter an absentee ballot upon oral request
of some friend or relative of the absentee?
“2. May an absentee voter, through the agency
of a friend, make written application such as would
authorize the clerk to send such ballot?
“3. Is the clerk authorized to mail an absentee
voter a ballot, where the name of the voter appears
on the certified list of poll tax payers, even though
the voter does not send his poll tax receipt to the
clerk at the time of making application for a ballot?
“4. Is the clerk authorized to mail an absentee
voter a ballot if the application for a ballot is ‘not
accompanied by fifteen cents (15$) to cover postage?
lr5. Is the clerk authorized to mail a ballot to
an absentee voter if the fifteen cents (15$) is paid
by some friend or other disinterested person as his
agent?”
As all of the above questions are directed to an inter-
pretation of that part of Article 2956 applicable to absentee vot-
ing by mail, we omit the provisions applicable to voting by~per-
sonal appearance before the county clerk. The pertinent provi-
‘qsions of the statute follow:
“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 place in the election precinct of
Hon. Ben Jr Dean, page 2 (O-4700)
his residence, on the day of holding any general, spe-
cial, or primary election, may, neverthelss, 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.
llSubdivlsion 2. Such elector shall make applica-
tion for an official ballot to the county clerk in writ-
ing signed by the elector, or by a witness at the direc-
tion of said elector in case of latter’s inability to
make such written application because of physical disa-
bility. Such application shall be accompanied 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
be sickness or physical disability by reason of which the
elector can not appear at the polling place on election
day, a certificate of a duly licensed physician certify-
ing as to such sickness or physical disability shall
accompany the application.
I,. . . .
Y%bdivision 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 ap-
plication for a ballot as provided for in Subdivision 2
hereof, shall be entitled to have his ballot cast at
such an election on compliance with the following provi-
sions t
“The application, including fifteen cents (15#> 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 provided 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 pres-
ence of a Notary Public or other persons 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 pres-
ence 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
elector or in case of physical disability, then by the
said wikess for and in behalf of said elector and certi-
fied by such officer and then mailed by said oificer,
postage prepaid, to the County Clerk.
Hon. Ben J. Dean, Page 3 (O-4700)
11
. . . .
%ubdivision 6. On the day of such election, and
in the presence of the election officers, and the super-
visors, if any, one of the judges of election shall,
between the hours of 2~00 and 3rO0 o’clock open the car-
rier envelope only, announce the elector’s name and com-
pare the signature upon the application with the signature
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 elector of the precinct, and that he has not
voted in person at said election, they shall open the en-
velope 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
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 officer, supervisor, party challenger, or
other person, the grounds of challenge shall be heard and
decided according to law, including the consideration of
any affidavits submitted in support of or against such ohal-
lenge. If the ballot 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 ‘rejected,’ 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 manner as provided for
the return and preservation of official ballots voted at
such election. In all cases the application poll tax re-
ceipt or exemption certificate, ballot envelope and the
affidavits and certificates accompanying same shall be re-
turned by the officers of election to the county clerk who
shall keep all such papers except poll tax receipts and
exemption certificates for one (1) year and shall return
poll tax receipts 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 receipts and exemp-
tion certificates shall be held thirty (30) days and as much
is;;;; thereafter as any Court or reviewing authority may
.
II. . . .*
Hon. Ben Jo Dean, page 4 (O-4700)
With reference to the first question propounded by you,
it will be noted that Subdivision 2 of the above statute provides
that :
“Such elector shall make application for an official
ballot to the county clerk ip writina signed bv the eleq-
4py, or by a witness at the direction of said elector in
case of latter’s inability to make such FPitt0n amlica-
w because of physical disability.l~
We think the intent of the Legislature is thus made plain-
by the use of the words underscored by us it was the intent that
the application must be in writing. This conclusion is strength-
ened by reference to the words of Subdivision 6 wherein it is pro-
vided that on the day of the election, one of the judges of elec-
tion, before depositing the ballot in the ballot box shall “compare
the signature upon the application with the signature upon the af-
fidavit on the ballot envelope.” Further, said judge is authorized
to cast such ballot if the election board “fintse;Ee affidavits
duly executed, that the &matures corresoog8, .
In this connection, we-direct attention to the case of
Sartwelle v. Dunn, (Tex.Civ.App. 1938) ~120 S.W.(2d) 1300 In that
case it appeared that ballots we?e taken from the county clerk’s
office by a notary and a candidate to the residences of certain
electors without request from them. Each expressed a willingness
to vote, however, and the ballots were then and there marked by
the notary at their direction. The court said:
” . . . 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 exercis-
ing the right of suffrage through the medium provided by
the absentee voting statute should at least substantially
comply with the requirements of such statute. To hold that
ballots such as these were cast in substantial compliance
with the statute would ignore the plain and express provi-
sions thereof and open the avenues of fraud, deception and
intimidation through absentee voting in the conduct of
elect ions.
“We are of the opinion that the trial court erred in
refusing to sustain the challenge to these votes.
11. . e,I
In view of the above, we answer the first question in the
negative.
The second question is answered in the negative, also,
with the exception stated in Subdivision 2, supra, “or by a
Hon. Ben J. Bean, page 5 (O-4700)
witness at the direction of said e,lector in case of latter 1s in-
ability to make such written application because of physical dis-
ability.” It will be observed that in Subdivision 4 the ~same
exception is applicable to the actual marking of the ballot.
In regard to the third question dealing with the “au-
thority” of the county clerk to mail one a ballot whose name
appears on the certified list of poll tax payers but who does not
accompany his application with his poll tax rece 1pt, we say that
the clerk does not derive any such ‘authority11 from~ the statute.
The second sentence of Subdivision 2 provides that the application
for a ballot is to be accompanied by the poll tax receipt or ex-
emption certificate of the elector or his affidavit in writing
that same has been lost or mislead. The latter part of Subdivi-
sion 6 provides for the return to the ,voter of the poll tax re-
ceipt or certificate of exemption. This is to be done by the
county clerk after the election. Therefore, following the statute,
you are advised that the county clerk is not authorized to forward
a ballot where the application is unaccompanied by either the poll
tax receipt or certificate of exemption of the elector, or in lieu
thereof, the written affidavit of the voter that he has lost or
mislaid the same.
Your fourth question relates to the 18authority1,!, of the
county clerk to mail the ballot where the applicant does not in-
clude fifteen cents (154) to cover postage. The only reference
to such matter in the statute is in the language contained in Sub-
division 4: “The appliaation, including fifteen cents (15Q) to
cover postage, shall be mailed to the County Clerk,” etc. We are
of the opinion that the clerk would not be authorized to send the
ballot where the a plication therefor is not accompanied by the
fifteen cents (15# P. Your fourth question is accordingly answered
in the negative.
But we do not believe that a mere failure to forward the
fifteen cents (15#) along with the written application would justi-
fy the clerk in failihg to forward the ballot if the amount should
be timely paid either by the elector himself or by some other dis-
interested person as his agent. Therefore we aQswer your fifth
question in the affirmative.
Yours very truly
BW:GOrwb ATTOBEEY GENERALOF TEXAS
APPROVED JUL 11; 1942 By /s/ Benjamin Woodall
/s/ Gerald C. Ham By Benjamin Woodall, Assistant
ATTORNEY GEEEBALOF TEXAS
APPROVED:OPIEIOIi c0Im1lTEE
BY: BWB , Chairman