Eonorable Frederick .I. Biel Bee CountyAttorney Bee County Courthouse Beeville,Texas 78102 OpinionNo. J-M-736
ue: Whether article 64.036 of the Election Code is applicable to personswho assistvotersunder the provisions of section 86.010 of the Election Code
DearMr. 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'votingby mail. Provisionsrelating to the general conduct of electionsare found in title 6 of theElection Code [hereinafterthe 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 absenteevotingby mail.
Your inquiry concerns procedures and penalties for assisting a voter inmarking an absenteemail ballot. It is firstnecessary to review the provisions relating to assistanceprovided at the polling place, since thoseprovisionsalso govern absenteevotingby mail.
A voterwho isunable topreparehis ballotbecause 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 electionofficersor by a person of thevoter'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 absenteevoting. These chapters are not relevant to the questionsposed in this opinionand are excluded from discussion. 2. Unless otherwise indicated,all sectionreferencesare to the Election Code.

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not select his employer, an agent of his employer, or an officer or agent of a laborunion towhich thevoter belongs to assisthim. Sec. 64.032.
A person assisting a voter reads the entire ballot to the voter unless thevoter indicatesa desire tovote only on certain offices or measures. Sec. 64.033. If avoter is assistedby a person other than an election officer, the personmust take the following oath administeredby an election officer:

I swear (or affirm) that I will not suggest, by word, sign, or gesture,how thevoter shouldvote; I will confine my assistance to answering the voter's questions, to statingpropositions on the ballot, and to naming candidates and, if listed, their political parties; and I will prepare the voter'sballot as thevoter 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 unlawfullyassisting evoter. Section 64.036provides:

(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 officerknowingly permits a person to provide assistance:

(1) to a voter who is not eligible for assistance;or

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(2) inviolation of Section 64.032(c). (d) An offenseunder this section is a Class B misdemeanor. The provisions regarding assistance in mail balloting situations are found in sections86.010, 86.012,and 86.013 of the Code. Section 86.010provides:

(a) A voter castingaballot 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 inpreparing theballot. (b) Assistance rendered under this section is limited to that authorized by this code at a pollingplace. (c) If a voter is assisted in violation of this section, the voter's 'ballot may not be counted. (Emphasisadded). 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 prescribedby the secretaryof state,must be printed on the face of each official ballot envelope and may be continuedon the reverse side ifnecessary:

(1) instructions for marking the ballot and returning themarked ballot to the absentee voting clerk; (2) thedeadline for returningthemarked 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 absenteeballot is returned to

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



### (4 A certificate in substantially the following formmust 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 persuasionby any person.
Signatureof voter By: Signature of person assisting voier',if applicable (seeBallot Envelope for restrictions and penalties) Printedname of person assisting voter, if applicable Residence address of person assistingvoter, 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 absenteevoting 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 officialballot envelopeandnoted on the official carrier envelope to instruct a voter and a person who may be assisting a voter on the propermethod of assistance. Despite these requirements.you suggest that the legislaturedid 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 titlesof this code apply to absentee voting except provisions that are inconsistent with this title or that cannot feasiblybe applied to absenteevoting.

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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 inconsistentwith the absentee procedures or that the penalties cannot feasiblybe 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 absenteeby 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 criminalpenalty section as evidence of legislative intent to limit available sanctions in absenteevoting.
We cannot agreewith thisreading of theCode. We believe that a more reasonablereading of section 81.002 in conjunctionwith 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 suggestionthat suchassistance is inconsistentor infeasible. While section 81.002 renders repetition of compatibleprovisions unnecessary, it does not eliminateall questionsof applicability. We do not consider section 86.010 redundant because explicit authorisation of assistance eliminates any dispute about its applicability to wail absenteeprocedures.
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 feasiblybe applied to absenteevotingby 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);Spencev. Penchler, 180 S.W. 597, 601 (Tex. 1915).

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In our opinion, section 64.036. subsections (a), (b).and (d)of the Code are consistentwith and applicable to assistance rendered to a voterpursuant to section 86.010 of the Code.
You also ask whether section 64.036 is unconstitutionallyvague. Article I, section 10, of the Texas Constitutionstates, inpart:

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 accusationagainsthim. and tohave a copy thereof.
. . . (Emphasisadded). The requirement for clarity inpenal statutes is restated in the Penal Code. Section 1.02 of the Penal Code provides, inpart:

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, theprovisions of this code are intended,and shall be construed, to achieve the following objectives:

. . . . (2) by definition and grading of offenses to give fairwarning ofwhat isprohibitedand of the consequencesof violation.
. . . (Emphasisadded). 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 forvagueness 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 determiningwhether 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 contestswere election laws fromwhich the

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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.2dat 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 forprovidingassistancecontrary to law. Section 64.036 is not void forvagueness. SUMMARY

Election Code section 64.036, subsections (a), (b),and (d)are consistentwith and applicableto assistancerendered to a voterpursuant to section 86.010 of the Election Code. Election Code section 64.036 is not void forvagueness.

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttorneyGeneral JIJBGE XOLLIE STFAKLEY SpecialAssistantAttorney General RICK GILPIN Chairman,OpinionCommittee Preparedby Karen Gladney AssistantAttorneyGeneral

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