::

**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

Konombia T. it. JOhnSOn County .,tt3rnoy, iiertge3 **COUEty** iSg Ltike, Teas

uuzir2. Johnson:

upon the nbu7e

.7,requests

CountyClerk, 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
as 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 whenreceived by himthrough 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 anabsentee ballot ezvelo?e which hos not been filled Fnat all andwhich has not been sighed or 3;:orn to by the elector eo shownby Sxhibit’ j,’ where the abscnteo ballot envelope h,:s been pi:rtlally filled in but not signed or sworn to as shownby 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 tIke acknowl-

,‘adg~~entsas shownby 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 myopinion t!%t absentee ballot envelopes i&OCqogerly filled in, signed md cxorn to by the eleotor as provided by lnw are void andshould be **ignored** by the County Clerk whenreceived by bin through the rzuLls c;i:dshould not be delivorod to the judges of electl~n to b3 considered a8ballots 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 3ìí l + 4which ballot shall be a asked by elector, * * * in the presence ot a Notpirg Fubllo or other persons qualified under the law to take acrnowled~mmts, l * l andsuoh ballot shall then In the presenoeLof :uoh ofrlcer befolded 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 5ot said ..rtiole 2956, Revised Civil Itatutcs of Texas of 1925, seta out what the County Clerk is to dowith said absentee ballot whenrcoeivad, a8 r0ii0w8:

**Uponreceipt of anysach 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 2956ior duties or eleotlon judges as to such ballots).”

Subdivision 5or ..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. Johsson, p-age4

**county Clerk**  shall ‘mep the sme unopened until tho second day prior to such eleotion, and shall then enclose saizetogether 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 5vihioh requires “bclllots &led **out** by the **county** clerk within the legal tlm, but not reoeived*b:c$ by himon 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 6of ’ 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 madefor the disposition of ebsentce ballots received by said clerk in ballot envelope6 not Dulp endorsed.

Aanreful 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 andto 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 ~theapplloazt 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:zeon 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 onwhlon word0 *rej?Jcted ubasntoe bullets’ have boon virittcn, topthdlr with a

## stata;zentof

## t>e precinct n;ld

## thedote of election, signed by the judaus and clerks cf oleotlon snd returned in the s+;wamanner:%a2rovidsd ?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~IXshall be re= turnad **by the**  **ofrlccrs of**  **aleotion to**  the oounty clerk whos?: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 Domailed or delivered in aeroon by tbc couhty clerk 3s thcreln directed. Otharwino, howcould 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, hownould 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.

Suppoosethe **aboeiltee voter** **’ s**  oppUaatioa, because of his physical dlsabllity, is yreasred and signed **by one**  witness zridoaid voter’s affidavit OBthe 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&%dneWhethw 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 bythe absentee elector. MORL?~iimie aould arise If the nbeenteeballots 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 whenexprsooed at the bullet, but ~23 ~r6 or the 0pini0n th%t 811elector 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~.vebeen substaatiallv ooqlied with? Hosuch 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), 52s.

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

w’i’hewill of the leg,al voter5 as expmsed at the polla $8the utter cf 3mm3uht conearn, ma, in tne absence or anyshowing **or** fraud, or reasonable lniiio;rtlon that such wlL1 .hasnot been ralrly expressed and the evidence fhcre.;f oroperly orooorved, the oourts heve boon liberal in construing and enfcrciag a8dire+ tory onle the provision8 of the election lows whlChe not upontheir face cle&ly mandatory.” (.Emghssle ours)

In the saae case, the votes of seven absentea votoxs v:ereattaaked, five ;;f %hozldid DOtdeliver. or exhibit their poll t;Lxreceipts to the oounty clerk Mhenobtaining their ballote, 35 provided for in Article 2986, E. 3. The county olerk .mde ho ouch dezand, althmgh said five voters had paid their poll t’:xa5 andwere quallfied eleotors. Rogerding these votes the court‘

.

.. .

Honorrtble T. A. Johnson, &ge 7

said:

*That they **expressed** thair ~0111by an othcrwlae legal bullet, that euoh ballot wDBnot tampored Nith, but was **oouatad,** io not denied. The proper time and pltice to h:sveraised that question would hove been, wethink, by challen6e 

### or these votes whentendered to the election officisls. aa provided for in Art. 2z3$.t There fs
no indication that this wtnadone, **; cud**  **we** decline to dlaSranchioe thembeoauvs administrative orficiala **ho0** railed, * l +

### toaisohorge the -ties lmpoeed PpOAthemby the 8tatute.v (r;mphasie ours)

**Aleo see**  **Stratton v.**  Hell, (Civ. irpp.1 903. b. (2d) 863; Booker V. Foster, (Civ. Bpp.) 19S. x. **(2d)** 911.

Clsarl.p, theretore, the duties of the **county** clerk in connectfon withtbse matter8 aro minlsterlal and not discretionnrg. iie is nut vested with authority as towhat 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~~wfulmanner. 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. Theevidence ia thus legally preserved in the event of a contest. Aserious 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. TheBest way 1s the safe way. The safe way 18tar 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 himon or **before** the third **day prior**  **to** the election. Byso doing hewill perform his duties in the manner oletirlg implied by the statute; and hewill not violate sny of the provisions of Articles 216to 231, inclusive, of the Penal Code of Texas, and all amendment8thereto.

Fortunately, the **Yupreae** Court of Texas, in the rather reaont ease or aood V. State (1939). 12135. W. (24) 4,,. :

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

hn8 **hit** n0doubt as to the ffi;aning 0r **Seotion** 5 or **mtlolo** 2956, aioreeald. The fUlloWing quotation from ssld oaae 1~ unambiguous andvery aerinite:

nljubdlvlsion 5of thio Artlole (2956) makes it the duty of the county clerk, whenhe recolves anabsentee ballot, to keep sameunopened **until** the eeoond day prior to the eleotion. It i6 then madohis duty to enclose the ballot with the elector*8 application theretor in an envelope, securely sealed, etc., andmall or dellvcr the sameto the proper preeidlng or oeslstant eleotlon judge.”

Let it be derinitely **mderstood that**  **we are**  **not** pneslng uponthe 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**