Honorable Jules Dsmlani, Jr. Opinion NO. ~~-1065 

Criminal District Attorney 

Court Rouse Re: What officer handles 

'Galveston, Texas absentee voting by 

paper ballots in school 

elections. 

Dear Sir: 

You have requested an 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 Galveston County, and your Inquiry is directed particularly 

to school elections In counties where voting maohines are in 

use. Sectlon 7 of Article 7.14, Electlon Code, provides that 

the authority charged with holding an election shall determine 

whether voting machines or paper ballots shall be used for the 

casting of absentee votes at the,electlon. The portion of the 

statute dealing with absentee,votlng by paper ballots reads as 

follows: 

' * + + Should the authority 

charged with holding an election de-. 

termlne by such resolution as above 

provided, that absentee votes cast at 

such election be cast by a paper ballot, 

then, and In such event, the authorlty 

charged with holding such election shall 

provide a ballot for the'castlng of absentee votes as preecribed and provided 

by the generallaws applicable to elections and to sbsentee voting and those 

entitled under the l&w shall i?astxr 

'vote by such ballot under the laws appllcable ,to absentee 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 applicable to absentee voting, * * *. 

portion provides for processing~ 

absentee ballots and registering the 

votes on the voting machine In use at the 

polling place, and for challenge of absentee ballots and rejection of those not 

voted according to lawg All rejected 

ballots shall be.enclosed, securely sealed 

In an envelope on which words, 'rejected 

absentee ballots1 have been written together with the statement of 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 preservation of official ballots 

voted at such election and shall be held by 

the County Clerk, City Secretary or other 

person provided by law, thirty (30) days 

and as much longer thereafter as a;y court 

or reviewing authority may direct. 

(Emphasis supplied.) 

Where absentee voting Is by paper ballot, the underscored portion of this statute makes the general provisions on 

absentee voting applicable In all matters except the matters 

expre.ssly covered In the succeeding provisions of Section 7, 

dealing with the processing of the ballots after they have been 

delivered to 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 conducted by the county clerk. Article 

7.13 provides that In municipal elections "the mayor, the city 

secretary, and/or the governing body shall do and perform each 

aat which In other elections are 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 provisions of Article 5.05 appllcable.to absentee voting by paper ballot In counties where ,' 

voting machines have been adopted, the same rule applies. In 

those counties. In this connection, Article 2745~ of Vernon's 

Civil Statutes expressly p'rovldes that the county clerk shall 

conduct the absentee voting In school trustee elections, and 

that paper ballots shall be used for absentee voting In all 

such elections, including elections In districts where voting 

machines are used at regular polling places. 

You have called our attention to the term "authority 

charged with holdlng..thelection" In Section 7 of Article 7.14 

and to the last sentence of this section, which provides that 

rejected absentee ballots shall be returned In the same manner 

as provided for the return and preservation of official ballots 

voted at the election and "shall be held br the Counts Clerk. 

City Secretary or other person provided by-law", and ,ou suggest 

that the terms nauthorlty charged with h Id1 ng an election" 

and 'other person 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 substituting the city secretary for the county clerk 

In city elections. In primary elections, the authority charged 

with holding the election Is the county executive committee of 

the party; yet It cannot be doubted that the oounty'clerk rather 

than someone designated by the executive committee Is the proper 

officer to conduct absentee voting 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 absentee voting in all elections. 

The last sentence of 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 statutes place 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 insertion of 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 enumerated In the statute and not for the duties of 

the county clerk generally. 

Sectioll 7a of Article 7.14, efiacted In 1957, provides 

an optional method for the counting of absentee paper ballots 

by a special canvassing board In elections held In counties 
Hon. Jules Damlanl, Jr., page 4 (~~-1065) 

which have adopted voting machines. This section provides 

that "absentee voting shall be conducted by the county clerk, 

city secretary, or other officer charged by law with the duty 

of conducting absentee voting for that election." (Emphasis 

lid) Th 

~p$tl&*of 

th f th 

thTsayawoinod 

t opinion assisted In 

lns~r~~?%e underscored language 

the 

because of proposals which had been made to permit county executive committees to conduct absentee voting In primary elections and in recognition of the possibility that the Legislature 

might provide In subsequently enacted special statutes that In 

certain elections the absentee voting was to be conducted by 

some other officer. Seatlon 7a does not undertake to designate 

any other officer to conduct absentee voting in particular types' 

of elections, and until the Legislature places this duty in 

some other officer It remains with the county clerk In all 

elections except municipal elections. 

Section 3 of Article 7.14,after providing that the 

commissioners court of a county may adopt voting machines for 

use In elections In all or part of the election precincts of 

the county, further provides: 

"* *. * and thereupon such voting 

machine shall be.used at any and all 

elections and primary elections, munlclpal, county, district, or State held 

In that county or any part thereof, 

designated for voting, registering and 

counting votes cast at such elections 

and primary elections, all sahool and 

bond elections also shall be conducted 

bv the use of votlna machines In those 

&unties orparts &ereof where such 

machines have been adopted, where the 

@~Wspeclflcally makes their use obliRatory." (Emphasis supplied.) 

In this opinion we are not passing on whether this statute makes 

use of voting machines at regular polling places mandatory In 

school elections. The answer to your question on absentee 

voting is unaffected by 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 electldns held by school 
Hon. Jules Damlanl, Jr., page 5 (~~-1065) 

districts, both In counties where voting 

machines have been adopted for use and 

In counties where paper ballots are used. 

Yours very truly, 

WILL WILSON 

,Attorney General of Texas 

MKW:ljb 

APPROVED: 

OPINION C~NMITTEE 

W. V. Geppert, Chairman 

Lawrence Hargrove 

Howard Maya 

w. Ray scruggs 

Sam Wilson 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Morgan Nesbltt