:: 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Konombia T. it. JOhnSOn 

County .,tt3rnoy, iiertge3 COUEty 

iSg Ltike, Teas 

uuzir 2. Johnson: 

upon the nbu7e 

.7, requests 

County Clerk, should &core ab3c:;teo bellots 80 rzccivod or a:ethr he ohculd dcliVer then t0 tbY eiSCti;n Judges for their cOiSi~e~::tioll and. deterzimtion 

a s to ::k;?.i.r they diould be caii.:td or nst. The rs3t 

frec,;c..t ~:CGQ~US of !iOtV nbsectce bdl~t envelo-es !i1~6 

teen received by hia in the ?zst no illustrated by 

Sxhibits ‘.L,’ ‘3’ and ‘G’ stts.c,hed. 
%hould the County Clerk ignore as void ubocntee ballot emeloges which ore not properly filled 

in, signed and sworn to by the elector when received 

by him through the mils 3r should said County Clerk 

doliver such absentee ballot e:Jvclo:es to the election 

ti judges for then to deterxlne whether the ballot thorein should be considered or not? 

“bhat would be the application of this qucetlon to an absentee ballot ezvelo?e which hos not been 

filled Fn at all and which has not been sighed or 3;:orn 

to by the elector eo shown by Sxhibit’j,’ where the abscnteo ballot envelope h,:s been pi:rtlally filled in but 

not signed or sworn to as shown by Lxhiblt ‘B,l and 

where the absehteo ballot envelope has been filled in 

and signed by the elcxtsr bat not sworn to before a 

Notary Publia or soxe cfficm an?Aorizod to t Ike acknowl- 

,‘adg~~ents as shown by Lzhlbf,t ‘C’:’ 

“The Co sty Clerk is only interested in whut 

disporltion he should x2e of such nbscntee ballots; 

that is, ehethrr he should or should hot deliver them 

to the presiding judge of election, or to any assistant judge of eleotion, in the proper precinct. 

*It is my opinion t!%t absentee ballot envelopes 

i&OC qogerly filled in, signed md cxorn to by the eleotor as provided by lnw are void and should be ignored 

by the County Clerk when received by bin through the rzuLls 

c;i:d should not be delivorod to the judges of electl~n to 

b3 considered a8 ballots In the election beiag hold. 

*I tail to find my decisions by our appell:,to 

courts on tho subjeot, but BubdivisTon 4 of Article 2956 

provides the zanner in which absmtee ballots should bo 

cnst * to-wit: 
Honortible T. .H. JOMB;Il, px~e 3 

ìí l + 4 which ballot shall be a a sk ed by 

elector, * * * in the presence ot a Notpirg 

Fubllo or other persons qualified under the 

law to take acrnowled~mmts, l * l and suoh 

ballot shall then In the presenoeLof :uoh 

ofrlcer be folded by the elootor 

deposited in stiid envelope, the envelope 

securely sealed, the endorsam!nt filled out, 

nirJned ;ad oworn to by the elector, or in 

case of disability, then by the said witness 

for and in behalf of said eleotor, and certified by euch officer and then nailed by= 

officer, postage preyuid, to the County Clerk.’ 

“And Subdivision 5 ot said ..rtiole 2956, Revised Civil 

Itatutcs of Texas of 1925, seta out what the County 

Clerk is to do with said absentee ballot when rcoeivad, 

a8 r0ii0w8: 

**Upon receipt of any sach ballot 

sealed in its ballot envelo:m duly enc0rsea, the clerk ah‘?11 keep the sa?le unopened until the second day prior to suoh 

election, acd shall then-enclose the sazz 

tosether with the eLector's applfcation 

and acoollpanglng papers, in a larger or 

carrier envclojm which shall be securely 

sealed aad endorsed with the nme aod ofrroiol tftle or such clerk, and * * * 

the clerk shall forthwith zail otme, or 

deliver it in person, to the presldlng 

judge of election, or to any assistant 

judge of elootion, in said greoinct.' 

(See firtiolo 2956 ior duties or eleotlon 

judges as to such ballots).” 

Subdivision 5 or ..rticle EQSO, Vernon*s Annotated 

Civil Statutes, provides: 

"Upon receipt oi uoy such.bnllot (absentee) 

sealed in ita ballot enveloye duly endorsed, the 
’ Ifonorabie T. A. J ohsson, p-age 4 

county Clerk shall ‘mep the sme unopened until 

tho second day prior to such eleotion, and shall 

then enclose saize together with the eleotor’s 

a?plloatlon and aooo~?i~n$ing pupcrs, in s larger 

or currirr envelope end the olcrk ehall 

forthwith mall sa!:.B, or d&lver it in person, to 

the presiding judge of election, or to any assistant judge of eleotioa, in said precinct.* 

Then follows another paragraph of seid Subdivieion 

5 vihioh requires “bclllots &led out by the county clerk within 

the legal tlm, but not reoeived*b:c$ by him on or before the 

ts,?rd day prior to the aloction shall not be voted, but 

shall re;;l:lin in the oustody of the co&ty alerk during the thirty 

(50) day psriod provided for in Subdivision 6 of’ said hrtiole.” 

It will therefore be noted that while express provision is a&e for the custody of absentee ballots not received 

b;lck by the county clerk on or before the third day prior to the 

election, no suoh provision is made for the disposition of ebsentce ballots received by said clerk in ballot envelope6 not 

Dulp endorsed. 

A anreful exazAnution’oi Subdivision 6, bowever, 

cletirly implies that such b:illots shnll be emiled or delivered 

in person by the county clerk in like tinner and to the proper 

aieotion ofriolals as required oonoernlng bdlota in duly endorsed ballot envelo?es. 

Said Subdivision 6 oontains, among others, the 

following provislone: 

*In case tr‘e olectlon botird rind8 the afridavits (on brAlot envelopes) duly exaouted, thtt the 

sign-itures (upon the opplb;itfon and upon the affidmit) 

correspond, t!lJt ~the applloazt is a duly qualiried 

elector or the :Jreclnot, aad tlzt he has not voted 

in person at said election, they shall open the envelope 

containing the 61eOtor’s ballot * a * If the ballot be 

adtittod, the word8 ‘absentee voter’ shall be aet down 

opposite the elector’s nu:ze on the poll list. If the 

ballot be not admitted, there Call be endorsed on the 

back thereof the word *reJected,* and all rejeoted 
.bsllota shad be anclosed, sco,;relp sealed, in an 

envelope on whlon word0 *rej?Jcted ubasntoe bullets’ 

have boon virittcn, topthdlr with a stata;zent of t>e 

precinct n;ld the dote of election, signed by the 

judaus and clerks cf oleotlon snd returned in the 

s+;wa manner :%a 2rovidsd ?or t!ie racurn end poserv::tlon irt official ballots voted ot ouah election. 

In all ani tha acgl:c.-rtion ?a11 tax receipt or 8xelqti,on aertiflcate, bsll,ot envelope o;ld the affidsvits and csrtlffo.%tea accom~onying B~IX shall be re= 

turnad by the ofrlccrs of aleotion to the oounty clerk 

who s?:sl.l kcop all such p.ciperzJ ene?t poll tex raceipts and exe.qAion certificates for one (I) year 

and shall return poll tilx recai%s and exesibtiol; 

ceztific~ztss to ,tl;o voter * * *‘sxcept in &se or 

ch;;:llen~o 7 * *.” (&qhasia our>-) 

Tnus, It we6 clearly tho lntc3tion oi ths it?Ril3h:ture 

t.h;lt g,l.l ;lbsantec-,be],lot e??velooe~ecefvod by the county-clerk 

zn or bcroro the third dsy erior to tho olectlon;‘toi~etber with 

their oo:;tcnts and the other instr&?ts mentioned in Aubdiviaian 

6, should Do mailed or delivered in aeroon by tbc couht y clerk 3s 

thcreln directed. Otharwino, how could the election board detomine whether or not the aPfldavits (on the ballot anvelo~pes) 

hid been duly executed, or that the s2gnaturss (upon the ag;llicatlon ad u?on tho nffiduvlt) corres~ohdY Alao, how nould said 

hoard be able to detemine the other rictters covered by ~~ubdivleioa 3 and comply with its provlslons7 It ccrtaialp coald not do 

so if eald absentee b&lot onvelogas and eooom~anylng papers 

were not delivered to it. 

Suppoose the aboeiltee voter’s oppUaatioa, because 

of his physical dlsabllity, is yreasred and signed by one witness 

zrid oaid voter’s affidavit OB the ballot envolo,m 1s filled out 

md sig,ned by a %itiless other th!m the first. 

teaded tht;t anyone, 

Could it be conother tbn& the pro?er olectloh offlolnl&, 

could deto&%dne Whethw said ballot envelope hid been “duly 

ecdoraed?” 

9up?oso ths eemty clerk should fail to deliver returnad b;;ilots in a~~vcl.opos -sot duly endorsed a;ld an election 

contest shouid thiredtof emue. Xabarrasment and serious 

coneequences xi6ht saslly result, 

be lost or destroyed. 

ospeclaUy ii such bnllots should 

The Clerk’s oontentlon as to lack of proper 

endoraeslent could and probi;bly would be net by ah emphatio denis 

by the absentee elector. MO RL?~ iimie aould arise If the nbeentee 
ballots in question are delivered by the county clerk in the 

war groscrlbod In Subdivision 6, SU3ra1 

In the oeae of Sartwalle v. Dunn (Clv. App. 193’3) 

120 5. ii. (Zdj 130, the cou.rt used this SigliffCaDt ~lsngusge: 

Ve recognize the-general rule th?t the 

~~11 of the &zctcrs should be xesimtad when exprsooed at the bullet, but ~23 ~r6 or the 0pini0n 

th%t 811 elector cfitrcisir.g the r; ght of suttrcge 

through the z?dlm grovidcd by the absentee voting 

statute should at le.& 

the roguirezents of such statute. 

Fho, tbea, is te determine whether said reguire- 

,zents h~.ve been substaatiallv ooqlied with? Ho such authority 

is given the cm--t is clearly the dyty of the respective Drecinot eleotlon off ioials. 

In, the OABB of ‘in~~~t3g V. 3llhel;ll (civ. ADD), 52 s. 

‘ii. (M) 757, error refused, it WAS held that: 

w’i’he will of the leg,al voter5 as expmsed 

at the polla $8 the utter cf 3mm3uht conearn, ma, 

in tne absence or any showing or fraud, or reasonable 

lniiio;rtlon that such wlL1 .has not been ralrly expressed 

and the evidence fhcre.;f oroperly orooorved, the oourts 

heve boon liberal in construing and enfcrciag a8 dire+ 

tory onle the provision8 of the election lows whlChe 

not upon their face cle&ly mandatory.” (.Emghssle ours) 

In the saae case, the votes of seven absentea votoxs 

v:ereattaaked, five ;;f %hozl did DOt deliver. or exhibit their poll 

t;Lx receipts to the oounty clerk Mhen obtaining their ballote, 35 

provided for in Article 2986, E. 3. The county o lerk .mde ho 

ouch dezand, althmgh said five voters had paid their poll t’:xa5 

and were quallfied eleotors. Rogerding these votes the court 
‘. 

. . . 

Honorrtble T. A. Johnson, &ge 7 

said: 

*That they expressed thair ~0111 by an 

othcrwlae legal bullet, that euoh ballot wDB not 

tampored Nith, but was oouatad, io not denied. 

The proper time and pltice to h:sve raised that 

question would hove been, we think, by challen6e 

or these votes when tendered to the election officisls. aa provided for in Art. 2z3$.t There fs 

no indication that this wtna done, ; cud we 

decline to dlaSranchioe them beoauvs administrative orficiala ho0 railed, * l + to aisohorge the 

-ties lmpoeed PpOA them by the 8tatute.v 

( r;mphasie ours) 

Aleo see Stratton v. Hell, (Civ. irpp.1 90 3. b. (2d) 863; Booker 

V. Foster, (Civ. Bpp.) 19 S. x. (2d) 911. 

Clsarl.p, theretore, the duties of the county clerk 

in connectfon withtbse matter8 aro minlsterlal and not discret ionnrg. iie is nut vested with authority as to what ballots shall 

or shall not be au~atod. Such authority is treated ln the proper 

ehCtiOA OtfiCial8. The presumption obtains that said oiiiclolf~ 

will perfonn their duties in a l~~wful manner. Should they admit 

AbJeAtW bclllots which should k3ve been rejeoted, or should they 

raject suoh Bsllotn which should hove been admitted, ample provision ie xde ror the preservation of both. The evidence ia 

thus legally preserved in the event of a contest. A serious 

question in this connection would be presented if the oounty olerk 

should retain any euoh absentee ballots in his pO33es51On. A 

more soriom Cuostlon would nrlse in the event sold clerk should 

destroy same. These matters lzre very serloua and involve grave 

conneguencee. The Best way 1s the safe way. The safe way 18 tar 

the county olerk to mail or deliver to the proper election officials all returned absentee ballots in their envelopes, exceat 

those whloh clre not received back by him on or before the third 

day prior to the election. By so doing he will perform his duties in the manner oletirlg implied by the statute; and he will 

not violate sny of the provisions of Articles 216 to 231, inclusive, of the Penal Code of Texas, and all amendment8 thereto. 

Fortunately, the Yupreae Court of Texas, in the 

rather reaont ease or aood V. State (1939). 1213 5. W. (24) 4, 
,. : 

. 

Honorable T. rC. 3~hnaon, p-.ge 0 

hn8 hit n0 doubt as to the ffi;aning 0r Seotion 5 or mtlolo 

2956, aioreeald. The fUlloWing quotation from ssld oaae 1~ 

unambiguous and very aerinite: 

nljubdlvlsion 5 of thio Artlole (2956) 

makes it the duty of the county clerk, when he 

recolves an absentee ballot, to keep same unopened until the eeoond day prior to the eleotion. It i6 then mado his duty to enclose the 

ballot with the elector*8 application theretor 

in an envelope, securely sealed, etc., and mall 

or dellvcr the same to the proper preeidlng or 

oeslstant eleotlon judge.” 

Let it be derinitely mderstood that we are not 

pneslng upon the legality or such absentee ballots. Such is a 

matter ror determlnatlon prlmarllp by the proper election otfiolnls in eaoh preolnot. 

Youri very truly 

ATTCZZEY GEWRAL OF TEXAS 

p 

By . - 

L. H. Blewellen 

I.HF:EP