### GENERAL HE ATTOMNICY

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 25election precincts, and has also created Election BoxNo. 

### 26to meet the requirements of Subdivision 

### 6of Section 

### 37of 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:

1í. . l Noelection 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 

### 37of the Election Code (Art. 5.05, Vernon’s Election Code), the method of casting absentee ballots has been changed. Formerly, under Subdivision 

### 6of 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 byplacing 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. Theprocedure for casting and counting absentee ballots under the present statute isHon. Boyd Bsrjenbruch, page 2 (v-1443)

described in Subdivision 6of Section 37 for CountYwide elections and in Subdivision 9for elections which are less than county-wide. Subdivision 6reads

as follows:

“Theballots cast in the office of the county clerk shall be deposited when voted In aballot box locked with two (2) locks the keys of one ofwhich 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. onthe day of the election the ballots and the ballot envelopes which have been received bymail 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 onthe ballot envelope. In case the election board finds the affidavits duly executed, that the slgn&ures correspond, that the applicant Is aduly 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
sameway as is done at aregular polling place. This special canvassing board shall possess the same qualifications, bepaid the
samewage, and be subject to the samelaws and penalties as regular election judges.

. . .”Hon. Boyd .13ar jcnbruch, page 3 (V-1449) 9

The questions which you present are the following :

“1. ISSection 37 Subdivision 6, conflict with Section 13 of the Election in

Code?

“2

. IS the voting boxNo. 26 which is created for absentee voting by the Commissioners’ Court ofMontague County, Texas, avalid voting box under Section 12 and Section 37, Subdivision 6of the Election Code?”

The‘substance of the reasoning in the brief accompanying your request Is that Election BoxNo. 26 is in fact the absentee precinct ofMontague County. Youpoint 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 25boxes, and it will be presided over by three or more persons whomust 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.

Wehave not been furnished with acopy 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 anElection BoxNo. 26was being used
as a synonym for llpolling place

.‘I Wedonot 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 byvoters who appear at the polls onelection 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 Codeunequivocally 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 wedonot 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 adifferent polling place from that fixed by statute. Section 

### 37does 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 anunreasonable one. Theprohibit Ion in Section 12against the formation of an election precinct out of two or morejustice or commissioners’ precincts is not based upon any constitutional provision limiting the method of forming election precincts. Consequently wethink it maywell bewithin the power of the Legisiature 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 Coderegulating the formation of election precincts, the designation ofpolling places, and the casting ofballots.

It is a’firmly established principle of statutory construction that where an enactment contains a specific provision which is at variance with ageneral 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 

### 63Tex. 

### 437(1885); Ct of Asti Cahill 

### 99Texl 172, 88S.W. 542 (190
c”itv ofBiownwood 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.

Wehave pointed out that in our opinion the term “election box” In the court order wasused in the
sense of “polling place.” It seems likely that the intent of this portion of the order wasmerely to authorize the supplying of the ballot boxes required in. 1

Hon. Boyd Barjenbruch, page 5 (V-1449)

absentee voting and to provide the manner of their identification. Section 

### 70of the rlection code (Art. 

### 7.05,Vernon’s Blection Code) provides for the marking ofballot 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 ofballot boxes is to Identify the source of the ballots which they contain, and so long as the designation of “Election BoxNo. 

### 26"is understood as identifying boxes containing absentee ballots cast in the office of the County clerk ofMontague County, we donot 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, weare of the opinion that it would be a sufficient compliance with the election laws.

In absentee voting, the provisions of Section 

### 37of 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,

PRICEi):UIEL Attorney General

By 2b.y K&e MaryK.Wall assistant