HonorableJules Dsmlani,Jr. Opinion NO. ~~-1065

CriminalDistrictAttorney Court Rouse Re: What officer handles 'Galveston,

Texas absenteevoting by paper ballots in school elections.

Dear Sir:

You have requestedan opinion on'the following question:

"Does the County Clerk handle

or process absentee voting by paper ballots in school eltictione, where voting machines or pa#er ballots are in use by the county?
Voting machines have been adopted for use in elections in GalvestonCounty, and your Inquiry is directedparticularly to school elections In countieswhere voting maohines are in
use. Sectlon 7 of Article 7.14, Electlon Code, provides that the authority chargedwith holding an election shall determine whether voting machines or paper ballots shall be used for the casting of absenteevotes at the,electlon. The portion of the statute dealingwith absentee,votlng by paper ballots reads as follows:

' * + + Should the authority

chargedwith holding an election de-. termlne by such resolutionas above provided, that absentee votes cast at such electionbe cast by a paper ballot, then, and In such event, the authorlty chargedwith holding such election shall provide a ballot for the'castlngof absentee votes as preecribedand provided by the generallaws applicableto elections and to sbsentee voting and those entitledunder the l&w shall i?astxr 'vote by such ballot under the laws appllcable ,toabsentee voting

, wovi~ however, that on the day of such %ction.

Hon. Jules Damlanl, Jr., page 2 (~~-1065)

and in the presence of the election officers
one of the judges of election shall, between the hours of 2 p.m. and 3 p.m. open the carrier envelope only as provided by the laws applicableto absentee voting, * * *.

portion provides for processing~ absentee ballots and registeringthe votes on the voting machine In use at the polling place, and for challengeof absentee ballots and rejectionof those not voted according to lawg All rejected ballots shall be.enclosed,securely sealed In an envelopeon which words, 'rejected absenteeballots1have been written together with the statementof the precinct and the date of the election, signed by the judges and clerks of election and returned In the same manner as provided for the return and preservationof official ballots voted at such election and shall be held by the County Clerk, City Secretary or other person providedby law, thirty (30) days and as much longer thereafteras a;y court
or reviewingauthoritymay direct. (Emphasissupplied.)

Where absentee voting Is by paper ballot, the underscored portion of this statutemakes the general provisionson absenteevoting applicable In all matters except the matters expre.ssly

covered In the succeedingprovisionsof Section 7, dealingwith the processingof the ballots after they have been deliveredto the election judges.

Article 5.05, Election Code, which Is the general statute on absentee voting, provides that absentee voting In all elections shall be conductedby the county clerk. Article 7.13 provides that In municipal elections "the mayor, the city secretary,and/or the governingbody shall do and perform each aat which In other electionsare required to be done and performed respectively by the county judge, the county clerk and the Commissioners

Court." Consequently,In municipal elections the city secretary is the proper officer to conduct absentee

Wood v State ex rel. Lee 133 Tex. 110, 126 S.W.2d 4 ~%~r Att'y Gdn. Cp. O-b033 d ). However, there Is no similar statute transferring the county clerk's duties to some other officer in school elections,and the county clerk Is the proter officer to conduct absentee In paper ballot" counties. voting in these elections Hooker v. Foster 19 S.W.2d 911 (Clv.App.1929);. Att'y Gen. Op. 04467A (1942). Since Section

### suu7

Hon. Jules Damlanl,Jr., page 3 (~~-1065)

7 of Article 7.14 makes these provisionsof Article 5.05 appllcable.to absentee voting by paper ballot In countieswhere ,' voting machines have been adopted, the same rule applies. In those counties. In this connection, Article 2745~ of Vernon's Civil Statutes expresslyp'rovldes that the county clerk shall conduct the absenteevoting In school trustee elections,and that paper ballots shall be used for absentee voting In all such elections,includingelectionsIn districtswhere voting machines are used at regularpolling places.

You have called our attention to the term "authority charged with holdlng..the lection" In Section 7 of Article 7.14 and to the last sentenceof this section,which provides that rejected absentee ballots shall be returned In the same manner as provided for the return and preservationof official ballots voted at the election and "shallbe held br the Counts Clerk. City Secretary or other person providedby-law", and ,ou suggest that the terms nauthorlty chargedwith h Id1 ng an election" and 'otherperson provided by law" indlczte that school dlstrlcts and water districts should handle their own absentee voting, the same as the county clerk and city secretary In their elections. As already pointed out, there is a statute expressly substitutingthe city secretaryfor the county clerk In city elections. In primary elections,the authority charged with holding the election Is the county executive committeeof the party; yet It cannot be doubted that the oounty'clerkrather than someone designatedby the executive committee Is the proper officer to conduct absenteevoting for primary elections. In the absence of a statute transferring these duties to someone else, It Is our opinion that the county clerk Is the proper officer to conduct absenteevoting in all elections.

The last sentenceof Section 7 pertains to the custody of the ballots after the election Is concluded. The general provisions of the Election Code place custody of the ballots In the county clerk (Art. 5.05, Subdiv. 6;,Art. 5.06; Art. 8.32). By Article 7.13, supra, the city secretary Is made the custodian of ballots In city elections. Special statutesplace custody In some other officer in various other elections (e.g.,Arts. 2746a and 7880-29,V.C.S.) and these special statutes explain the reason for insertionof the term "or other person provided by law." However, the substitution of some other person for the county clerk In these latter statutes Is for the specific duties enumeratedIn the statute and not for the duties of the county clerk generally.

Sectioll

7a of Article 7.14, efiacted In 1957, provides
an optionalmethod for the counting of absentee paper ballots by a special canvassingboard In electionsheld In countiesHon. Jules Damlanl, Jr., page 4 (~~-1065)

which have adopted voting machines. This sectionprovides that "absentee

voting shall be conductedby the county clerk, city secretary,or other officer charged by law with the duty of conductingabsentee voting for that election." (Emphasis lid) Th ~p$tl&*of th f th

thTsayawoinod t opinion assisted In

lns~r~~?%e underscoredlanguage the

because of proposalswhich had been made to permit county executive committeesto conduct absentee voting In primary elections and in recognitionof the possibilitythat the Legislature might provide In subsequentlyenacted special statutesthat In certain elections the absentee voting was to be conductedby
some other officer. Seatlon 7a does not undertake to designate any other officer to conduct absenteevoting in particulartypes' of elections,

and until the Legislature places this duty in
some other officer It remains with the county clerk In all electionsexcept municipal elections.

Section 3 of Article 7.14,afterproviding that the commissioners court of a county may adopt votingmachines for
use In electionsIn all or part of the electionprecincts of the county, furtherprovides:

"* *.* and thereupon such voting machine shall be.used at any and all electionsand primary elections,munlclpal, county, district,or State held In that county or any part thereof, designatedfor voting, registering and countingvotes cast at such elections and primary elections,all sahool and bond electionsalso shall be conducted bv the use of votlna machines In those &unties orparts &ereof where such machineshave been adopted,where the @~Wspeclflcally makes their use obliRatory." (Emphasissupplied.)

In this opinion we are not passing on whether this statutemakes
use of voting machines at regular polling places mandatory In school elections. The answer to your questionon absentee voting is unaffectedby the question of whether their use for regular voting is mandatory or permissive.

SUMMARY

The county clerk has the duty of .conducting

absentee voting by paper ballots In electldnsheld by schoolHon. Jules Damlanl, Jr., page 5 (~~-1065)

districts,both In countieswhere voting machines have been adopted for use and In countieswhere paper ballots are used.

Yours very truly,

WILL WILSON ,AttorneyGeneral of Texas

MKW:ljb

APPROVED:

OPINION C~NMITTEE W. V. Geppert, Chairman

LawrenceHargrove Howard Maya
w. Ray scruggs Sam Wilson

REVIEWEDFOR THE ATTORNEY GENERAL BY: Morgan Nesbltt