L r -, 

Honorable L. D. Hartwell 

County Attorney 

Hunt County 

Greenville, Texaa 

Dear Sir: Opinion No. O-2549 

Re: Authority of an election 

judge to cast out ballot 

of absentee voter. 

This will acknowledge receipt of your letter of 

July 24, requesting an opinion of this department, in which 

you crGe provisions from Article 2956, Revised Civil Statutes 

of Texas, and state ae follows: 

"Under the above law I am asking and requesting this department to answer the following 

question. 

'IHas the election judge the authority to 

cast out and hold for naught the abaentce voting under thia article. One of the election 

judges says he is going to throw out all of the 

absentee voting of a certain box. I have given 

my opinion to the effect that no election judge 

has the authority or right to cast out absentee 

vote of any elector provided he has complied 

with this law, but I want to get a ruling from 

your department." 

Opinion No..O-2298, previously issued by this department, interprets Article 2956 ae regards ita application 

in the actual preparation and casting of an absentee ballot. 

We attach for your perusal a copy of this opinion, which we 

feel will Serve to establish the conception of this department as to the application of the article in question. 

Beyond thia, and in connection with the duties of 

the county clerk and of the election judge, when an absentee 

ballot has been received, we refer to subdivisions 5, 6, and 

10 of Article 2956. 

Subdivision 5 reads as follows: 

"Upon receipt of any such ballot sealed in 

its ballot envelope duly endorsed, the clerk shall 
Hon. L. D. Hartwell, page 2 (o-2549) 

keep the same unopened until the second day 

prior to ouch election, and shall then enclose same together with the elector's applicatioa and accompanying papers, in a larger or 

carrier envelope which shall be ascurely sealed atld endorsed with the name and official 

title of such clerk, and the words 'this envclope contains an absentee ballot, and must be 

opened only at the polls on election day,' 

and the clerk shall forthwith mail aamc, or 

deliver it in person to the presiding judge of 

electioa, or to any aseistaslt judge of election, 

in eaid precinct. 

"And ballota mailed out b$ the county 

clerk within the legal time, but not received 

back by him on or before the third day prior 

to the election on the day of election, shall 

not be voted, but ehall remain in the custody 

of the couatg clerk during the thirty (30) 

day period provided in Subdivision 6.” 

Subdivision 6 reads in part as follows: 

"On the day of such election, and in the 

presence of the election officers, and the supervisors, if any, one of the judges of election 

shall, between the hours of 2:00 and 3:00 

o'clock open the carrier envelope only,~::announce 

the elector's name and compare the signature upon 

the application with the signature upon the affidavit on the ballot envelope. In ca8e the election board finds the affidavita duly executed, th& 

the signatures correepond, that the applicant is 

a duly qualified elector of the preclact, and 

that he has not voted in person at said election, 

they shall open the envelope containing the 

elector's ballot in such manner aa not to deface 

or destroy the affidavit thereon, take out the 

ballot therein contained without permitting came 

to be umfolbd or examirred and having endorsed 

the ballot in like manner aa other ballots arc required 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. If the ballot be challenged 

by any election officer, supervisor, party challcnger, or other pereon, the grounds of challenge shall 

be heard and decided according to law, Including 

the consideration of any affidavits aubmitted in 

support of or against such challenge. If the ballot 
!-- h 

Hon. L. D. Hartwoll, page 3 (O-2549) 

be admitted, the word8 'absentee voter' shall be set 

down opposite the elector's name oa the poll list. 

If the ballot be not admitted, there shall be endorsed OR the back thereof the word 'rejected,' and 

all reject& ballots shall be eacloaed, aecurelg 

aealea, in a n l avelope oa which words 'rejected 

abseatae ballots' have been written, together with 

a statement of the precinct and the date of election, 

aignod by the judge8 aad clerks of election and returuea ia the name manner as provided for the return 

and preaervatioa of official ballots voted at such 

electioa." 

Subdivisioa 10 sets out the capacity in which county 

clerka, their deputiea, sad election judges shall act with regard to abaeatee ballots, and refera to Articlea a5 to 231, 

iaclusive, of the Penal Code of Texaa, with regard to punishments. Ia this regard we quote Article 217, Vernon'8 Penal Code: 

"Any judga of any election who shall refuse 

to receive the vote of aay qualified olector who, 

when his vote is objected to shows by his own 

oath that he is entitled to vote, or who ahall 

refuse to deliver ?n official ballot to one eatitled to vote under thi law, or who ahall wilfully refuse to receive a ballot after one entitled to vote haa legally folded a&d returned 

MUllC, shall be. fined not to exceed five hundred 

dollara." 

From the wording of the article8 quoted, we Fe" 

spectfully advise that in our opiaion no electioa judge haa 

any authority to disregard or cast out any absentee ballot 

cast according to the provialoas of the law, aad that if he 

does so he is subject to fine in accordance with Article 

217 of the penal code. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

APPROVED ADG 2, 1940 

h&;;;;s;;;;era 

ATTORNEY GENERAL 

WRK:Jm:~kb 

By /s/ Walter R. Koch 

Walter R. Koch 

Assistant 

Emcl. Approved 

Opiaiom 

Committee 

BY - 

Chairman