THICAITORNEY GENERAL
OF-TEXAS
GERALD C. MANN
Honorable Dan W. Jackson Opinion No. O-4455
District Attorney
Civil Courts Building Re: Is the data of election excluded
Houston, Texas in computing the three day period
for absentee voting ?
ATTN: Conrad J. Landram
Dear Sir:
We have carefully considered your opinion request of recent date
relative to the construction to be plac,ed on Subdivisions 3 and 4 of Article
2956, Revised Civil Statutes, 1925, as amended, with reference to the compu-
tation of the period of time within which absentee voting is to be permitted.
You refer especially to the opinion of the Austin Court of Civil Appeals in the
case of Clark v. Stubbs, 131 S.W.2d 663, wherein it appears that absentee votes
cast on a Sunday before an election held on Tuesday were held not illegal.
Subdivision 3 of Article 2956 permits absentee voting by personal
appearance before the county clerk of the voter’s residence “at any time not
more than twenty (20) days, nor less than three (3) days, prior to the date of
such an election a 0 *” Subdivision 4 of such statute uses the identical language
just quoted, but permits absentee voting by mail within the time prescribed.
The language of Clark v. Stuffs, supra, to which you doubtless refer,
reads as follows:
‘The next group of voters challenge~d by appellant are
Herman Young, Julia Mae Stubbs and Nolan Lathan, all of whom
voted absentee votes on Sunday before the election on Tuesday.
Appellant attacks these votes as being in violation of the spirit
of the statutes which prohibit the doing of certain acts on Sunday.
Art. 286. Texas Penal Code; Art. 1974, R. S. 1925. These sta-
tutes do not relate to voting, and since the election law authorizes
the absentee voting for a period of from 20 to 3 days before the
ele.ction. Sunday would necessarily be included where the elec-
tion is held on the first Tuesday in November as required by
law; and we find no statute prohibiting the ‘voting of absentee
votes on Sunday. *
Honorable Dan W. Jackson, Page 2 (O-4455)
It has been the view of this administration of the Attorney General’s
office that the last day application may be made and ballot cast by one unable
to participate by personal appearance on the day of the electian, ts the third
day prior to the data of the election. In our opinion No. O-2298 it in said:
*If the election ia to be held on a Saturday, Tuesday
midnight is the deadline.”
We do not think the quoted excerpt from Clark V. Stubbs changes
the construction to be placed on the statutory declaration. In that case the
sole attack made upon the votes cast by the named persons was because the
ballots were marked on a Sunday. We do not recognize the case as holding
that such votes would have been declared legal had the assignment been that
they were voted less than three days prioz -to the day of the election.
In the California case of Hutchins v. County Clerk of Merced
County, 140 Cal, App. 348, 35 P.2d 563, it is said:
LI . a Now, there is a difference in law between the
meaning of the words ‘within’ and “prior’. If you have to
do a thing before a certain day, that day is not included;
in other words, if you have to do a certain thing before
the 24th day of June, the 24th of June is not included, be-
cause it must be before. I . .*
We therefore advise that in our opinion your question should be
answered in the affirmative; that absentee ballots must be marked by the
voter by Tuesday midnight for an election to be held on a Saturday; by Friday
midnight for an election to be held on a Tuesday.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BW:GO:tiw By /s/ Benjamin Woodall
Benjamin Woodall
APPROVED MAY 13, 1942 Assistant
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED OPINION COMMITTEE
By /s/ BWB, Chairman