E NEW GENERAL OF EXAS

Hon. Ben J. Dean District Attorney Brec,kenridge, Texas Dear Sir: Opinion No. O-4700 Rer ConstPuction of the provisions of Article 2956,Revised Statutes, with reference to voting. by absentee, ballot.

Based upon the provisions of Article 2956of the Bevised Civil Statutes of Texas, a,samended, you request our opinion as to the correct answer to several questions which we take the liberty to restate as follows:

“1. Is the county clerk of a county authorized to send avoter anabsentee ballot upon oral request of somefriend or relative of the absentee?

“2. Mayan absentee voter, through the agency of afriend, makewritten application such aswould authorize the clerk to send such ballot? “3. Is the clerk authorized to mail an absentee voter a ballot, where the nameof the voter appears on the certified list of poll tax payers, even though the voter does not send his poll tax receipt to the clerk at the time of makingapplication for aballot? “4. Is the clerk authorized to mail an absentee voter aballot if the application for a ballot is ‘not accompanied byfifteen cents (15$) to cover postage? lr5. Is the clerk authorized to mail a ballot to anabsentee voter if the fifteen cents (15$) is paid by somefriend or other disinterested person as his agent?” Asall of the above questions are directed to aninterpretation of that part of Article 2956 applicable to absentee voting by mail, weomit the provisions applicable to voting by~personal appearance before the county clerk. The pertinent provi-

‘qsions of the statute follow:

“Subdivision 1. Anyqualified elector of this State whois absent from the county of his residence, or because of sickness or physical disability can not appear at the poll place in the election precinct ofHon. BenJr Dean, page 2 (O-4700)

his residence, on the day of holding anygeneral, special, or primary election, may, neverthelss, cause his vote to be cast at such an election in the precinct of his residence by compliance with one or other of the methods hereinafter provided for absentee voting. llSubdivlsion 2. Such elector shall makeapplication for anofficial ballot to the county clerk in writing signed by the elector, or by awitness at the direction of said elector in case of latter’s inability to makesuchwritten application because of physical disability. Such application shall be accompanied by the poll tax receipt or exemption certificate of the elector, or, in lieu thereof, his affidavit in writing that same has been lost or mislaid. If the ground of application be sickness or physical disability by reason of which the elector can not appear at the polling place on election day, a certificate of a duly licensed physician certifying as to such sickness or physical disability shall accompany the application. I,

. . . . Y%bdivision 4. At anytime not morethan twenty (20) days, nor less than three (3) days prior to the date of such an election, such elector whomakeswritten application for a ballot as provided for in Subdivision 2 hereof, shall be entitled to have his ballot cast at such an election on compliance with the following provisions t

“The application, including fifteen cents (15#>to cover postage, shall be mailed to the County Clerk of the elector’s residence whose duty it shall be forthwith to mail to such elector a blank official ballot andballot envelope as provided in Subdivision 3,which ballot shall bemarkedby elector, or bywitness at the direction of said elector in case of the latter’s inability to mark such ballot because of physical disability, in the presence of aNotary Public or other persons qualified under the law to take acknowledgments, and in the presence of no other person except said witness and/or such officer, and in such mannerthat such officer cannot knowhowthe ballot is marked and such ballot shall then in the presence of such officer be folded by the elector or by said witness in case of physical disability of said elector, deposited in said envelope, the endorsement filled out, the envelope securely sealed, signed and sworn to by the elector or in case of physical disability, then by the said wikess for and in behalf of said elector andcertified by such officer andthen mailed by said oificer, postage prepaid, to the County Clerk.Hon. BenJ. Dean, Page 3 (O-4700)

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. . . . %ubdivision 6. Onthe day of such election, and in the presence of the election officers, andthe supervisors, if any, one of the judges of election shall, between the hours of 2~00and 3rO0o ’clock open the carrier envelope only, announce the elector’s nameand compare the signature upon the application with the signature upon the affidavit onthe ballot envelope. In case the election board finds the affidavits duly executed, that the signatures correspond, that the applicant is a duly qualified elector of the precinct, andthat he has not voted in person at said election, they shall open the envelope containing the elector’s ballot in such manneras not to deface or destroy the affidavit thereon, take out the ballot therein contained without permitting sameto be unfolded or examined andhaving endorsed the ballot in like manneras other ballots are required to be endorsed, deposit the samein the proper ballot box andenter the elector’s namein the poll list the sameas if hehad been present andvoted in person. If the ballot be challenged by any election officer, supervisor, party challenger, or other person, the grounds of challenge shall be heard and decided according to law, including the consideration of anyaffidavits submitted in support of or against such ohallenge. If the ballot be admitted, the words ‘absentee voter’ shall be set downopposite the elector’s nameon the poll list. If the ballot be not admitted, there shall be endorsed on the back thereof the word ‘rejected,’ andall rejected ballots shall be enclosed, securely sealed, in an envelope onwhich words ‘rejected absentee ballots’ have been written, together with a statement of the precinct andthe date of election, signed by the judges andclerks of election andreturned in the samemanneras provided for the return andpreservation of official ballots voted at such election. In all cases the application poll tax receipt or exemption certificate, ballot envelope andthe affidavits andcertificates accompanying sameshall be returned by the officers of election to the county clerk who shall keep all such papers except poll tax receipts and exemption certificates for one (1) year and shall return poll tax receipts and exemption certificates to the voter at any time after the samehave been returned to himexcept in case of challenge when such poll tax receipts and exemption certificates shall be held thirty (30) days and as much is;;;; thereafter as anyCourt or reviewing authority may

. II

. . . .*Hon. BenJoDean, page 4 (O-4700)

With reference to the first question propounded byyou, it will be noted that Subdivision 2 of the above statute provides that:

“Such elector shall makeapplication for anofficial ballot to the county clerk ip writina signed bv the eleq4py, or by awitness at the direction of said elector in case of latter’s inability to makesuch FPitt0n amlicaw because of physical disability.l~ Wethink the intent of the Legislature is thus madeplainby the use of the words underscored by us it wasthe intent that the application mustbe in writing. This conclusion is strengthened by reference to the words of Subdivision 6wherein it is provided that onthe day of the election, one of the judges of election, before depositing the ballot in the ballot box shall “compare the signature upon the application with the signature upon the affidavit onthe ballot envelope.” Further, said judge is authorized to cast such ballot if the election board “fintse;Ee affidavits duly executed, that the &matures corresoog8,

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In this connection, we-direct attention to the case of Sartwelle v. Dunn, (Tex.Civ.App. 1938) ~120S.W.(2d) 1300 In that case it appeared that ballots we?e taken from the county clerk’s office by anotary anda candidate to the residences of certain electors without request from them. Each expressed awillingness to vote, however, andthe ballots were then andthere markedby the notary at their direction. The court said:

”

. . . Werecognize the general rule that the will of the electors should be respected whenexpressed at the ballot, but we are of the opinion that an elector exercising the right of suffrage through the mediumprovided by the absentee voting statute should at least substantially comply with the requirements of such statute. Tohold that ballots such as these were cast in substantial compliance with the statute would ignore the plain andexpress provisions thereof andopen the avenues of fraud, deception and intimidation through absentee voting in the conduct of elect ions.

“Weare of the opinion that the trial court erred in refusing to sustain the challenge to these votes. 11 ,I

. . e In view of the above, weanswer the first question in the negative. The second question is answered in the negative, also, with the exception stated in Subdivision 2, supra, “or by aHon. BenJ. Bean, page 5 (O-4700)

witness at the direction of said e,lector in case of latter 1 s inability to makesuch written application because of physical disability.” It will be observed that in Subdivision 4 the~same exception is applicable to the actual marking of the ballot.

In regard to the third question dealing with the “authority” of the county clerk to mail one aballot whose name appears on the certified list of poll tax payers but whodoes not accompanyhis application with his poll tax rece 1 the clerk does not derive any such pt, we say that

‘authority11 from~the statute. Thesecond sentence of Subdivision 2provides that the application for aballot is to be accompanied by the poll tax receipt or exemption certificate of the elector or his affidavit in writing that samehas been lost or mislead. Thelatter part of Subdivision 6provides for the return to the ,voter of the poll tax receipt or certificate of exemption. This is to be done by the county clerk after the election. Therefore, following the statute, you are advised that the county clerk is not authorized to forward aballot where the application is unaccompanied by either the poll tax receipt or certificate of exemption of the elector, or in lieu thereof, the written affidavit of the voter that he has lost or mislaid the same.

Your fourth question relates to the 18authority1,!,of the county clerk to mail the ballot where the applicant does not include fifteen cents (154) to cover postage. Theonly reference to such matter in the statute is in the language contained in Subdivision 4: “The appliaation, including fifteen cents (15Q) to cover postage, shall be mailed to the County Clerk,” etc. Weare of the opinion that the clerk would not be authorized to send the ballot where the a plication therefor is not accompanied by the fifteen cents 

### (15#

P

. Your fourth question is accordingly answered in the negative.

But wedonot believe that amere failure to forward the fifteen cents (15#) along with the written application would justify the clerk in failihg to forward the ballot if the amountshould be timely paid either by the elector himself or by someother disinterested person as his agent. Therefore we aQsweryour fifth question in the affirmative. BW:GOrwb APPROVED

JUL11; 1942 /s/ Gerald C. Ham ATTORNEY

GEEEBAL

OFTEXAS Yours very truly

ATTOBEEY

GENERAL

OFTEXAS By/s/ Benjamin Woodall ByBenjamin Woodall, Assistant

APPROVED:

OPIEIOIic0Im1lTEE BY: BWB

, Chairman