Eonorable Frederick .I. Biel 

Bee County Attorney 

Bee County Courthouse 

Beeville, Texas 78102 

Opinion No. J-M-736 

ue: Whether article 64.036 of the 

Election Code is applicable to 

persons who assist voters under the 

provisions of section 86.010 of the 

Election Code 

Dear Mr. Biel: 

You ask whether the penal provisions of section 64.036 of the 

Election Code are applicable to persons who assist voters under the 

provisions of section 86.010 of the Election Code. You also ask 

whether section 64.036 of the Election Code is unconstitutionally 

vague in the context of absentee'voting by mail. 

Provisions relating to the general conduct of elections are found 

in title 6 of the Election Code [hereinafter the Code]. Chapter 64 of 

the Code addresses election day voting procedures at the polling 

place. Title 8 of the Code pertains to absenta voting. Chapter 86 

regulates the conduct of absentee voting by mail. 

Your inquiry concerns procedures and penalties for assisting 

a voter in marking an absentee mail ballot. It is first necessary to 

review the provisions relating to assistance provided at the polling 

place, since those provisions also govern absentee voting by mail. 

A voter who is unable to prepare his ballot because of a physical 

disability or because of an inability to read the ballot is eligible 

for assistance. Sec. 64.031.' Assistance may be rendered by two 

election officers or by a person of the voter's choice. A voter may 

1. In addition to the "regular" absentee voting by mail procedures discussed in chapter 86 of the Code, chapters 101-114 cover 

special forms of absentee voting. These chapters are not relevant to 

the questions posed in this opinion and are excluded from discussion. 

2. Unless otherwise indicated, all section references are to the 

Election Code. 

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Honorable Frederick J. Biel - Page 2 (J-M-736) 

not select his employer, an agent of his employer, or an officer or 

agent of a labor union to which the voter belongs to assist him. Sec. 

64.032. 

A person assisting a voter reads the entire ballot to the voter 

unless the voter indicates a desire to vote only on certain offices or 

measures. Sec. 64.033. If a voter is assisted by a person other than 

an election officer, the person must take the following oath administered by an election officer: 

I swear (or affirm) that I will not suggest, by 

word, sign, or gesture, how the voter should vote; 

I will confine my assistance to answering the 

voter's questions, to stating propositions on the 

ballot, and to naming candidates and, if listed, 

their political parties; and I will prepare the 

voter's ballot as the voter directs. 

Sec. 64.034. 

If assistance is provided to a voter who is not eligible to 

receive assistance, the voter's ballot is not to be counted. Sec. 

64.037. Section 64.036 defines offenses and prescribes criminal 

penalties for unlawfully assisting e voter. Section 64.036 provides: 

(a) A person commits an offense if the person 

knowingly: 

(1) provides assistance to a voter who is 

not eligible for assistance; 

(2) while assisting a voter prepares the 

voter's ballot in a way other than the way the 

voter directs; or 

while assisting a voter suggests by 

word,(3jign, or gesture how the voter should 

vote. 

(b) A person commits an offense if the person 

knowingly assists a voter in violation of Section 

64.032(c). 

(c) An election officer commits an offense if 

the officer knowingly permits a person to provide 

assistance: 

(1) to a voter who is not eligible for 

assistance; or 

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Honorable Frederick J. Biel - Page 3 (JM-736) 

(2) in violation of Section 64.032(c). 

(d) An offense under this section is a Class B 

misdemeanor. 

The provisions regarding assistance in mail balloting situations 

are found in sections 86.010, 86.012, and 86.013 of the Code. Section 

86.010 provides: 

(a) A voter casting a ballot by mail who would 

be eligible under Section 64.031 to receive 

assistance at a polling place may select a person 

as provided by Section 64.032(c) to assist the 

voter in preparing the ballot. 

(b) Assistance rendered under this section 

is limited to that authorized by this code at a 

polling place. 

(c) If a voter is assisted in violation of 

this section, the voter's 'ballot may not be 

counted. (Emphasis added). 

The instructions required to be printed on an official ballot 

envelope in which a voter's marked ballot is to be placed are 

prescribed by section 86.012. Subsection (b) of that section 

provides: 

(b) The following textual material, as prescribed by the secretary of state, must be printed 

on the face of each official ballot envelope and 

may be continued on the reverse side if necessary: 

(1) instructions for marking the ballot 

and returning the marked ballot to the absentee 

voting clerk; 

(2) the deadline for returning the marked 

ballot to the clerk; 

(3) limitations on assistance to the 

voter; and 

(4) criminal penalties for unlawful 

assistance in preparing the ballot. (Emphasis 

added). 

Pertinent information required to be printed on the official 

carrier envelope in which the voter's absentee ballot is returned to 

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Honorable Frederick J. Biel - Page 4 (JM-736) 

the absentee voting clerk is set forth in section 86.013(c). The 

subsection reads: 

(4 A certificate in substantially the 

following form must be printed on the reverse side 

of the official carrier envelope: 

'I certify that the enclosed ballot expresses 

my wishes independent of any dictation or undue 

persuasion by any person. 

Signature of voter 

By: 

Signature of person assisting 

voier', if applicable (see Ballot 

Envelope for restrictions and 

penalties) 

Printed name of person assisting 

voter, if applicable 

Residence address of person 

assisting voter, if applicable' 

You question the applicability of the penalties for unlawful 

assistance set forth in section 64.036 (election day assistance) to 

assistance rendered pursuant to section 86.010 (absentee by mail 

assistance). Section 86.010 authorizes assistance in absentee voting 

by mail and limits the assistance to that authorized at a polling 

place. Sec. 86.010, subsecs. (a). (b). Subsection 86.010(c) prohibits 

the counting of a ballot when a voter is assisted in violation of 

section 86.010. Thus, the assistance available to a person voting by 

mail is equivalent to that offered a voter at the polling place. The 

limitations and penalties concerning assistance are printed on the 

official ballot envelope and noted on the official carrier envelope to 

instruct a voter and a person who may be assisting a voter on the 

proper method of assistance. 

Despite these requirements. you suggest that the legislature did 

not intend to impose criminal penalties on unlawful assistance in 

absentee voting. You rely on a general provision pertaining to the 

epplicability of other portions of the Code to absentee voting. 

Section 81.002 of the Code provides: 

The other titles of this code apply to absentee 

voting except provisions that are inconsistent 

with this title or that cannot feasibly be applied 

to absentee voting. 

p. 3428 
Honorable Frederick J. Biel - Page 5 (JR-736) 

By the terms of section 81.002, the offenses created in section 

64.036 do apply to absentee voting by mail. unless the offenses are 

inconsistent or infeasible in that context. Rowever, you do not 

suggest that section 64.036 is inconsistent with the absentee procedures or that the penalties cannot feasibly be applied. Rather, you 

urge that in light of section 81.002. either: (1) section 86.010 is 

redundant. or (2) that the provisions repeated in section 86.010 are 

an exhaustive listing of the assistance provisions that apply to 

absentee by mail situations. Specifically, you cite the inclusion of 

language similar to section 64.037 (ballot void when assistance 

rendered to ineligible voter) in section 86.010 and the failure to 

repeat the criminal penalty section as evidence of legislative intent 

to limit available sanctions in absentee voting. 

We cannot agree with this reading of the Code. We believe that a 

more reasonable reading of section 81.002 in conjunction with sections 

86.010, 86.012, and 86.013 discloses a legislative intent to ensure 

the availability of assistance in mail voting and to preclude any 

suggestion that such assistance is inconsistent or infeasible. 

While section 81.002 renders repetition of compatible provisions 

unnecessary, it does not eliminate all questions of applicability. We 

do not consider section 86.010 redundant because explicit authorisation of assistance eliminates any dispute about its applicability to 

wail absentee procedures. 

We note that several provisions relating to election day assistance cannot feasibly be applied to absentee voting by mail. For 

example, the oath requirement in section 64.034 assumes the presence 

of an election officer; the deposit of the marked ballot in section 

64.035 assumes the presence of a ballot box; and the offense created 

in section 64.036(c) assumes the presence of an election officer. 

Incidentally, each of these provisions is consistent with and may 

feasibly be applied to absentee voting by personal appearance. 

We cannot conclude that the partial restatement of assistance 

provisions in the chapter on absentee voting by mail is intended to 

be exhaustive. Such a conclusion would render sections 81.002, 

86.012(b), and 86.013(c) inoperative. It is a well-settled rule of 

statutory construction that language is to be construed in a wanner 

that gives effect and meaning to each word, sentence, end clause of 

the statute if feasible. As we stated in Attorney General Opinions 

JM-106 (1983) and JR-221 (1984). statutory language should not be 

construed in a fashion that renders some lannuane redundant or 

inoperative. See Perkins v. State, 367 S.W.2d 146. 146 (Tex. 1963); 

Eddins-Walcherxtane Company v. Calvert, 298 S.W.2d 93, 96 (Tex. 

1957); Spence v. Penchler, 180 S.W. 597, 601 (Tex. 1915). 

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Honorable Frederick J. Biel - Page 6 (JM-736) 

In our opinion, section 64.036. subsections (a), (b). and (d) of 

the Code are consistent with and applicable to assistance rendered to 

a voter pursuant to section 86.010 of the Code. 

You also ask whether section 64.036 is unconstitutionally vague. 

Article I, section 10, of the Texas Constitution states, in part: 

In all criminal prosecutions the accused shall 

have a speedy trial by an impartial jury. !i= 

shall have the right to demand the nature and 

cause of the accusation against him. and to have a 

copy thereof. . . . (Emphasis added). 

The requirement for clarity in penal statutes is restated in the 

Penal Code. Section 1.02 of the Penal Code provides, in part: 

The general purposes of this code are to 

establish a system of prohibitions. penalties, and 

correctional measures to deal with conduct, that 

unjustifiably and inexcusably causes or threatens 

harm to those individual or public interests for 

which state protection is appropriate. To this 

end, the provisions of this code are intended, and 

shall be construed, to achieve the following 

objectives: 

. . . . 

(2) by definition and grading of offenses to 

give fair warning of what is prohibited and of the 

consequences of violation. . . . (Emphasis added). 

This "fair warning" requirement applies to offenses defined by laws 

outside the Penal Code also. See Penal Code 11.03(b). - 

You do not suggest particular words within section 64.036 that 

are lacking in clarity. The applicable standard for determining 

vagueness was stated in Attorney General Opinion H-925 (1977). at 1. 

"A law is void for vagueness if it fails to give a person of ordinary 

intelligence a reasonable opportunity to know whet is prohibited." 

Grayned v. City of Eockford, 408 U.S. 104 (1972); Ex parte Frye, 156 

S.W.2d 531 (Tex. Grim. App. 1941). 

In deciding whether the provisions sanctioning unlawful assistance are clear, we look first to the provisions pertaining to 

assistance. Courts have had no trouble determining whether specific 

behavior constitutes assistance. Carter v. White, 161 S.W.2d 525 

(Tex. Civ. App. - El Paso 1942, no writ); Fuentes v. Eoward, 423 

S.W.2d 420 (Tex. Civ. App. - El Paso 1967. writ dism'd). The statutes 

at issue in those election contests were election laws from which the 

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Honorable Frederick J. Biel - Page 7 (JM-736) 

c 

* 

current assistance provisions are derived. While neither case 

concerned the constitutionality of the penal provisions relating to 

illegal assistance, both courts agreed that "assistance" means aid in 

the actual marking of a voter's ballot. Carter, 161 S.W.2d at 526; 

Fuentes. 423 S.W.2d at 424. 

In our opinion, the language of sections 64.031, 64.032, and 

64.033 precisely define assistance, eligibility for assistance, and 

the method of providing assistance. Further, it is our opinion that 

section 64.036 clearly states the impermissible conduct and the 

sanctions for providing assistance contrary to law. Section 64.036 is 

not void for vagueness. 

SUMMARY 

Election Code section 64.036, subsections (a), 

(b) , and (d) are consistent with and applicable to 

assistance rendered to a voter pursuant to section 

86.010 of the Election Code. Election Code 

section 64.036 is not void for vagueness. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JIJBGE XOLLIE STFAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen Gladney 

Assistant Attorney General 

p. 3431