HE ATTOMNICY GENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Auwrm ~~.TEXAS 

April 30, 1952 

Hon. Boyd Barjenbruch Opinion No. V-1449. 

County Attorney 

Montague County Re: Validity of the action 

Montague, Texas of the commissioners’ 

court in designating an 

“election box” for abDear Sir: sentee voting. 

In your request for an opinion of this office concerning the operation of certain provisions of 

the Texas Election Code, which became effective on 

January 1, 1952, you state that the Commissioners’ Court 

of Montague County has created 25 election precincts, 

and has also created Election Box No. 26 to meet the requirements of Subdivision 6 of Section 37 of the Election Code, which pertains to the casting of absentee 

ballots. 

Section 12 of the Election Code (Art. 2.04! 

Vernon’s 4ection Code) authorizes the commissioners 

court of each county to divide the county into convenient election precincts, but limits the court’s action 

in the following respect: 

1 í. . l No election precinct shall be 

formed out of two (2) or more justice precincts or commissioners precincts, nor out 

of the parts of two (2) or more justice precincts or commissioners precincts. . . .I’ 

Under Section 37 of the Election Code (Art. 

5.05, Vernon’s Election Code), the method of casting 

absentee ballots has been changed. Formerly, under Subdivision 6 of Article 2956, V.C.S., the county clerk forwarded the absentee ballots voted by electors of each 

election precinct to the presiding judge of that precinct, 

and one of the election judges cast the ballots by placing them in the regular voting box of the precinct in the 

same manner as voters appearing at the polls clst t!leir 

ballots. The absentee ballots were then counted along 

with all other ballots. The procedure for casting and 

counting absentee ballots under the present statute is 
Hon. Boyd Bsrjenbruch, page 2 (v-1443) 

described in Subdivision 6 of Section 37 for CountYwide elections and in Subdivision 9 for elections 

which are less than county-wide. Subdivision 6 reads 

as follows: 

“The ballots cast in the office of the 

county clerk shall be deposited when voted 

In a ballot box locked with two (2) locks 

the keys of one of which shall be kept during the period of absentee voting by the 

sheriff and the keys of the other by the 

county clerk. At 1:OO’ p.m. on the day of 

the election the ballots and the ballot envelopes which have been received by mail 

shall be delivered by the county clerk to a 

special canvassing board of three (3) or 

more members named by the authority which 

is authorized by law to name the presiding 

judges of that election; this special election board shall open the ballot boxes and 

the carrier envelopes, announce the elector’s name and compare the signlture,upon 

the application with the signature upon the 

affidavit on the ballot envelope. In case 

the election board finds the affidavits 

duly executed, that the slgn&ures correspond, that the applicant Is a duly quallfied elector of the precinct, and that he 

has not voted in person at said election, 

they shall open the envelope containing 

the elector’s ballot in such manner as not 

to deface or destroy the affldxvit thereon, 

take out the ballot therein contained without permitting same to be unfolded or examined and having endorsed the ballot in 

like manner as other ballots are r~equired to 

be endorsed, deposit the same in the proper 

ballot box and enter the elector’s name in 

the poll list the same as if he had been 

present and voted in person. . . . This 

special election board shall cast these absentee votes and then shall open the ballot 

box and proceed to count and make out returns of all ballots cast absentee In the 

same way as is done at a regular polling 

place. This special canvassing board shall 

possess the same qualifications, be paid the 

same wage, and be subject to the same laws 

and penalties as regular election judges. 

. . .” 
Hon. Boyd .13ar jcnbruch, page 3 (V-1449) 

9 

The questions which you present are the following : 

“1. IS Section 37 Subdivision 6, 

conflict with Section 13 of the Election 

in 

Code? 

“2 . IS the voting box No. 26 which 

is created for absentee voting by the Commissioners’ Court of Montague County, 

Texas, a valid voting box under Section 12 

and Section 37, Subdivision 6 of the Election Code?” 

The ‘substance of the reasoning in the brief 

accompanying your request Is that Election Box No. 26 

is in fact the absentee precinct of Montague County. 

You point out that absentee votes from all precincts 

will be cast in this box and returns made from such box 

as are made from the other 25 boxes, and it will be presided over by three or more persons who must meet the 

requirements of election judges and are subject to the 

same law and penalties as regular election judges. If 

the designation of an election box for absentee voting 

was tantamount to the creation of an election precinct, 

then the boundaries of the precinct are coextensive with 

the boundaries of Montague County and embrace four justice precincts and four commissioners’,precincts, contrary to the provisions of Section 12. 

We have not been furnished with a copy of the 

court’s order, but it would appear from the information 

you have furnished us that the term “election box” in 

the designation of an Election Box No. 26 was being used 

as a synonym for llpolling place .‘I We do not think the 

commissioners’ court was required to take any action 

whatever in regard to defining an election precinct or a 

polling place for absentee voting. The election precincts which the court is authorized to create under Aection 12 are those which are to be observed by voters who 

appear at the polls on election day, and the purpose of 

dividing the county into precincts is to fix the boundaries of the territory which each polling place is to 

serve. hut Section 37 of the Election Code unequivocally 

provides for the casting of absentee ballots at the 

county clerk’s office in county-wide elections and at the 

regular polling place in each election precinct where the 

election is less than county-wide. It was therefore unnecessary for the commlssloners~ court to designate the 
Hon. Boyd Barjenbruch, page 4 (V-1449) 

polling place for casting absentee ballots in countywide elections or the territory which this Polling 

place was to serve, since the statute Itself has already done SO. 

While we do not think the commissioners1 

court was authorized to define an “election precinct 

for absentee votlng,l’ if this was the effect of its 

order it was not in conflict with the absentee voting 

statute, as it did not attempt to designate a different polling place from that fixed by statute. Section 37 does not In terms constitute the entire county 

the “election precinct for absentee voting” in countywide elections, but this view of the effect of its provisions Is not an unreasonable one. The prohibit Ion 

in Section 12 against the formation of an election precinct out of two or more justice or commissioners’ 

precincts is not based upon any constitutional provision limiting the method of forming election precincts. 

Consequently we think it may well be within the power 

of the Legis i ature to prescribe a special election 

precinct for absentee voting purposes. However, it is 

unnecessary for us to determine in this opinion whether 

that is the effect of the absentee voting provisions. 

Since the Legislature itself has provided for the casting of absentee ballots in the clerk’s office, we’have 

only to consider whether this provision can stand alongside the general provisions of the Election Code regulating the formation of election precincts, the designation of polling places, and the casting of ballots. 

It is a’firmly established principle of statutory construction that where an enactment contains a 

specific provision which is at variance with a general 

provision in the same act, the specific provision is 

treated as an exception to the general and controls the 

subject matter which comes within its terms. Lufkin v. 

E;ttv of Galveston 63 Tex. 437 (1885); C t of A sti 

Cahill 99 Texl 172, 88 S.W. 542 (190 

c”itv of Biownwood 176 S.W.2d 344 (Tex. 

j+$Tfi+. 

error ref .) . 

Civ. A,J~. 19 3, 

It hollows that the specific provisions 

of the Election Code relating to absentee voting should 

be treated as exceptions to other provisions regulating 

balloting generally. 

We have pointed out that in our opinion the 

term “election box” In the court order was used in the 

sense of “polling place.” It seems likely that the intent of this portion of the order was merely to authorize the supplying of the ballot boxes required in 
. 1 

Hon. Boyd Bar jenbruch, page 5 (V-1449) 

absentee voting and to provide the manner of their 

identification. Section 70 of the rlection code 

(Art. 7.05, Vernon’s Blection Code) provides for the 

marking of ballot boxes in the election precincts 

laid out by the commissloners~ court. Section 37 

does not make specific provision for the marking of 

ballot boxes used at the county clerk’s office in absentee voting. The purpose of the provision for the 

marking of ballot boxes is to Identify the source of 

the ballots which they contain, and so long as the 

designation of “Election Box No. 26" is understood as 

identifying boxes containing absentee ballots cast in 

the office of the County clerk of Montague County, we 

do not believe this description would be contrary to 

any provision of the election law. This opinion is 

not to be understood as holding that the designation 

used by the commissioners’ court for the absentee 

polling place must be followed. However, if that means 

of identification is used, we are of the opinion that 

it would be a sufficient compliance with the election 

laws. 

In absentee voting, the provisions of 

Section 37 of the Election Code (Art. 5.05, 

Vernon’s Election Code) relating to the 

method of casting absentee ballots control 

over general provisions in other sections 

of the Uection Code. 

APPROVED: 

J. C. Davis, Jr. 

County tiffairs Division 

E. Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

MKW:wb 

Yours very truly, 

PRICE i):U IEL 

Attorney General 

By 2b.y K&e 

Mary K. Wall 

assistant