E NEY GENE

AS

Honorable Edgar A. Maddox CountyAttorney Palo Pinto County Palo Pinto, Texas

Dear Sir: OpinionNo. O-4999 Re: May a,quallfled elector of Palo Pinto Countywho is entitled to vote by absenteeballot under the general election 1aw.sof Texas, vote by absentee ballot at a local option electionprovided for by the Texas Liquor ControlAct?

Your telegram of November 30, 1942, requesting the opinion of this department on the'above statedquestion reads in part as follows:

"THE COMMISSIONERS'COURT OF PALO PINTO COUNTY HAS ORDEREDA LOCAL OPTION ELECTION TO BE HELD IN' THIS COUNTY ON THE ~THDAY OF DECEMBER,A.D. 1942. A QUESTIONHAS ARISEN AS TO THE LEGALITY OF ABSENTEE VOTING AT SUCH ELECTION, AND I SUBMIT THE FOLLOWING QUESTION TO YOU FOR YOUR OPINION: MAYA QUALIFIED ELECTOR OF THIS COUNTYWHO IS EWl’T’l’T.Rr, TO VOTE BY ABSENTEE BALLOT llNnl?R THR r.RNli!F .----

- -_.--- _-.--_ ---- --.- lAL,ELECTION LAWS OF TEXASVOTE.BY ABSENTEE BALLOT AT A LOCAL OPTION ELECTION,PROVIDEDFOR THE TEXASLIQUOR CONTROLACT?
"ART:666-35, PENAL CODE PROVIDES IN PART: 'THEPRESIDING OFFICER OF EA& VOTING BOX SHALL WRITE HIS,NAME ON THE BACK OF EACH BALLOT BEFORE DELIVERING THE SAME TO THE.VOTER, NO.BALLOT.SHALL BE~RECEIVEDOR COUNTEDBY THE.OFFICERS OF ,SUcH.~~ ELECTION THAT ISNOT AN.OFFICIAL.BALLPT,,ANI,.TRAT HAS NOT.THE NAME OF.THE PRESIDING. OFFICER OF SUCH ELECTION.WRITTENRIWEoN~.IN.~E~,HANDTdRTTING OF.SIJCH PRESIDING OFFICERA3 PROVIDED BY THIS ACT. ART. 666-36, PENAL CODE, PROVIDES IN PART: THE PROVISIONS OF THE GENERAL ELECTION LAWS SHALL BE FOLLOWED IN CALLINGAND CONDUCTING SAID ELECTIONWHERE NOT INCONSISTENTHEREWITH.' SUBDIVI.YION 1. ART.Honorable

2956, OR OF Edgar A. Maddox, page 2 o-4999

REVISED CIVIL STATUTES: ANY QUALIFIED ELECT-~ THIS STATEWHO ISABSENT FROM THE COUNTY OF HIS REBIDENCE. OR BECAUSE OF SICKNESS OR PHYSICAL DISABILITY CANNOTAPPEAR AT THE POLL PLACE IN THE ELECTION PRECINCT OF HIS RESIDENCE, ON THE DAY OF HOLDING ANY GENERAL. SPECIAL. OR PRIMARY ELECTION. MAY, NEVERTHELEBB, 6AUSEHIS-VOTE TO BE CAST AT. SUCH ELECTION IN THE PRECINCT OF HIS RESIDENCE BY COMPLYINGWITH ONE OR OTHER OF THE METHODSHEREINAFTER PROVIDED FOR ABSENTEEVOTING.'

"BLONTV. MCMILLAN, 139 S.W. (2D) 893, HOLDS THAT ART. 666-X. PENAL CODE CONTROIS AND IS HANDATORY, OVER THE GENERAL ELECTION LAWS. HOWEVERTHE POINTAT ISSUEWAS NOT INVOLVED.

. . . .'

Articles 666-32 -'i 666-40a,Vernon's Annotated-Penal Code.are the statutespertaining to local option'electlons,as contafned in the Texas Liquor ControlAct. Article 666-36, Vernon's Annotated Penal Code provides,

"The officers holding such election shall, In all respectsnot herein specified,conform to the general elections laws In force regulating elections and after the polls are closed proceed to count the votes and within three (3) days thereaftermake due report of said election to the aforesaid court. The provisions of the general election laws shallbe followed in calling and conducting said electionwhere not inconsistent herewith."

Subdivision 1 ofArticle 2956, Vernon's Annotated Civil Statutes provides.

"Any qualified elector of this State who Is absent from the county of his residence, or because of sickness or physicaldisability cannot appear at the poll place In the electionprecinct of' his residence, on the day of holding any general; special, or primary electi.on,'mayneverthgless, cause his vote to be cast at such an elec: tion in the precinct of his residenceby compliance with one or another'of the methods hereinafterprovided for absentee voting."

A'local option election is a special election authorized by then

provisions of the Penal Code heretoforementioned,.' It" will be noted that the foregoing provlsion of Article 2956”.6%; pressly provides that any qualified elector of thisState who' is absent fr:om

the county of his residence, or because of sick-Honorable Edgar A. Maddox, page 3 o-4999

ness or physical dlsabFllty cannot appear at the~poll place in the electionprecinct of his’ residence, on the day of holding-’ any general, special or primary electionmay nevertheless, cause his vote to be cast at such an election in the precinct of his residenceby compliancewith one or other of the methods provlded by statute for absentee voting.

,Wehave carefully,consFderedthe case of Blount ‘v. McMillari,139 S.W. (2’) 893, whEch is mentioned in yourinquiry and have concluded that’this case has no application to the questionunder consid,eration.

Its was held In the case of Scherz v. Telfer; 7% S.W. (2) 327’; that common school trustee electionsare general elections, and are controlledby the speclflc statutesreIatUigtocommon school trustee elections (Articles2745,‘2746and 2746a, Revised Civil Statutes, 1925) Fn all matters covered by’the provisions of those statutes,but In all matters~‘not”covered thereby the provislons of the general election laws‘areapplicable. We think that by the same reasoning, this tile-would apply to local option elections. In none of the particular statutes applicable to local option elections (theArticles of the Penal Code heretoforementloned) do we find any provision, with reference to absentee voting and under ‘therule annbuhced in the Bcheri v. Telfer case, supra, the general electlon laws would be applicable. Therefore, it Is our oplnlon that any qualified elector of Palo Pinto Countywho is entitled to~‘vote by ab,sentee

ballotunder the general electton laws of Texas can legally vote by absenteeballot at the local option election mentioned in your inquiry,provided,, the provlsions of Article 2956, supra, are complied with.

This department has heretofore rendered several opinions construingArticle 2956, supra, and answering c’ertaln questions with reference to absentee voting in school trustee elections and certain duties of the county clerk under said statute. Some of these opinions atie opinionsNos.,O-499, 4700, 4897 and 4487-A, copies of which are enclosed herewlth.

Trusting that the foregoing fully answers your inquiry,
we areHonorable Edgar A. Maddox, page 4 o-4999

Yours very truly

ATTORNEY GENERAL OF TBXAB

By s/ArdellWlllikms Ardell Williams Assistant

Aw:mp:wc Encl.

APPROVED DEC 3, 1942 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By &WE Chairman