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 absenteevoter.
This will acknowledgereceipt of your letter of July 24, requesting an opinion of this department, inwhich 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.

'IHasthe election judge the authority to cast out andhold for naught the abaentcevoting under thia article. One of the election judges sayshe is going to throw out all of the absentee voting of a certainbox. I have given my opinion to the effect that no election judge has the authority or right to cast out absentee vote of any electorprovidedhe has complied with this law, but I want to get a ruling from your department."

Opinion No..O-2298, previously issuedby this department, interpretsArticle 2956 ae regards ita application in the actual preparationand casting of an absentee ballot. We attach for your perusal a copy of this opinion,which we feel will Serve to establish the conceptionof this department as to the application of the article inquestion.

Beyond thia, and in connectionwith 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 shallHon. L. D. Hartwell, page 2 (o-2549)

keep the same unopened until the second day prior to ouch election,and shall then enclose same togetherwith the elector'sapplicatioa and accompanyingpapers, in a larger or carrier envelopewhich shallbe ascurely sealed atldendorsedwith the name and official title of such clerk,and the words 'thisenvclope containsan absentee ballot, andmust be opened only at the polls on electionday,' and the clerk shall forthwithmail aamc, or deliver it inperson to the presiding judge of electioa, or to any aseistasltjudge of election, in eaidprecinct.

"And ballotamailed out b$ the county clerkwithin 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 clerkduring the thirty 

### (30) day period provided in Subdivision 

### 6.”

Subdivision 

### 6 reads inpart 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 applicationwith the signature upon the affidavit on the ballot envelope. In ca8e the election board finds the affidavitaduly 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 containingthe elector'sballot in suchmanner aa not to deface
or destroy the affidavit thereon, take out the ballot therein containedwithout permitting came to be umfolbd or examirred andhaving endorsed the ballot in like manner aa otherballots arc required to be endorsed,deposit the same in the proper ballot box and enter the elector'sname in the poll list the same as ifhe 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 considerationof 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 'absenteevoter' shall be set down opposite the elector'sname 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 anl

avelope oa which words 'rejected abseatae ballots'have been written, togetherwith
a statement of the precinct and the date of election, aignod by the judge8aad clerks of electionand returuea ia the namemanner as provided for the return and preaervatioa of officialballots voted at such electioa."

Subdivisioa 10 sets out the capacity inwhich 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 electionwho shall refuse to receive the vote of aay qualified olectorwho, when his vote is objected to showsby his own oath thathe is entitled to vote, or who ahall refuse to deliver ?n officialballot to one eatitled to vote under thi law, or who ahallwilfully refuse to receive a ballot after one entitled to votehaa legally folded a&d returned MUllC, shall be.fined not to exceed five hundred dollara."

From the wording of the article8quoted, we Fe" spectfullyadvise that in our opiaion no electioa judgehaa any authority to disregard or cast out any absenteeballot cast according to the provialoas of the law, aad that ifhe does sohe is subject to fine in accordancewith 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