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 2956 of the Bevised Civil Statutes of Texas, a,s amended, 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 a voter an absentee ballot upon oral request 

of some friend or relative of the absentee? 

“2. May an absentee voter, through the agency 

of a friend, make written application such as would 

authorize the clerk to send such ballot? 

“3. Is the clerk authorized to mail an absentee 

voter a ballot, where the name of 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 making application for a ballot? 

“4. Is the clerk authorized to mail an absentee 

voter a ballot if the application for a ballot is ‘not 

accompanied by fifteen cents (15$) to cover postage? 

lr5. Is the clerk authorized to mail a ballot to 

an absentee voter if the fifteen cents (15$) is paid 

by some friend or other disinterested person as his 

agent?” 

As all of the above questions are directed to an interpretation of that part of Article 2956 applicable to absentee voting by mail, we omit the provisions applicable to voting by~personal appearance before the county clerk. The pertinent provi- 

‘qsions of the statute follow: 

“Subdivision 1. Any qualified elector of this 

State who is 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 of 
Hon. Ben Jr Dean, page 2 (O-4700) 

his residence, on the day of holding any general, 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 make application for an official ballot to the county clerk in writing signed by the elector, or by a witness at the direction of said elector in case of latter’s inability to 

make such written 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 any time not more than twenty 

(20) days, nor less than three (3) days prior to the date 

of such an election, such elector who makes written 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 and ballot 

envelope as provided in Subdivision 3, which ballot shall 

be marked by elector, or by witness 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 a Notary 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 manner that such officer cannot know how the 

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 and certified by such officer and then mailed by said oificer, 

postage prepaid, to the County Clerk. 
Hon. Ben J. Dean, Page 3 (O-4700) 

11 

. . . . 

%ubdivision 6. 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 3rO0 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 case the 

election board finds the affidavits duly executed, that 

the signatures correspond, that the applicant is a duly 

qualified elector of the precinct, and that he has not 

voted in person at said election, they shall open the envelope containing the elector’s ballot in such manner as 

not to deface or destroy the affidavit thereon, take out 

the ballot therein contained without permitting same to 

be unfolded or examined and having endorsed the ballot 

in like manner as other ballots are 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 challenger, or 

other person, the grounds of challenge shall be heard and 

decided according to law, including the consideration of 

any affidavits submitted in support of or against such ohallenge. If the ballot be admitted, the words ‘absentee 

voter’ shall be set down opposite the elector’s name on the 

poll list. If the ballot be not admitted, there shall be 

endorsed on the back thereof the word ‘rejected,’ and all 

rejected ballots shall be enclosed, securely sealed, in an 

envelope on which words ‘rejected absentee ballots’ have 

been written, together with a statement of the precinct 

and the date of election, signed by the judges and clerks 

of election and returned in the same manner as provided for 

the return and preservation of official ballots voted at 

such election. In all cases the application poll tax receipt or exemption certificate, ballot envelope and the 

affidavits and certificates accompanying same shall 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 same have been returned to him except 

in case of challenge when such poll tax receipts and exemption certificates shall be held thirty (30) days and as much 

is;;;; thereafter as any Court or reviewing authority may 

. 

II 

. . . .* 
Hon. Ben Jo Dean, page 4 (O-4700) 

With reference to the first question propounded by you, 

it will be noted that Subdivision 2 of the above statute provides 

that : 

“Such elector shall make application for an official 

ballot to the county clerk ip writina signed bv the eleq4py, or by a witness at the direction of said elector in 

case of latter’s inability to make such FPitt0n amlicaw because of physical disability.l~ 

We think the intent of the Legislature is thus made plainby the use of the words underscored by us it was the intent that 

the application must be in writing. This conclusion is strengthened by reference to the words of Subdivision 6 wherein it is provided that on the 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 on the ballot envelope.” Further, said judge is authorized 

to cast such ballot if the election board “fintse;Ee affidavits 

duly executed, that the &matures corresoog8, . 

In this connection, we-direct attention to the case of 

Sartwelle v. Dunn, (Tex.Civ.App. 1938) ~120 S.W.(2d) 1300 In that 

case it appeared that ballots we?e taken from the county clerk’s 

office by a notary and a candidate to the residences of certain 

electors without request from them. Each expressed a willingness 

to vote, however, and the ballots were then and there marked by 

the notary at their direction. The court said: 

” 

. . . We recognize the general rule that the will 

of the electors should be respected when expressed at the 

ballot, but we are of the opinion that an elector exercising the right of suffrage through the medium provided by 

the absentee voting statute should at least substantially 

comply with the requirements of such statute. To hold that 

ballots such as these were cast in substantial compliance 

with the statute would ignore the plain and express provisions thereof and open the avenues of fraud, deception and 

intimidation through absentee voting in the conduct of 

elect ions. 

“We are 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, we answer 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 a 
Hon. Ben J. Bean, page 5 (O-4700) 

witness at the direction of said e,lector in case of latter 1 s inability to make such 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 a ballot whose name 

appears on the certified list of poll tax payers but who does not 

accompany his application with his poll tax rece 1 

the clerk does not derive any such 

pt, we say that 

‘authority11 from~ the statute. 

The second sentence of Subdivision 2 provides that the application 

for a ballot is to be accompanied by the poll tax receipt or exemption certificate of the elector or his affidavit in writing 

that same has been lost or mislead. The latter part of Subdivision 6 provides 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 

a ballot 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. The only 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. We are 

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 we do not believe that a mere failure to forward the 

fifteen cents (15#) along with the written application would justify the clerk in failihg to forward the ballot if the amount should 

be timely paid either by the elector himself or by some other disinterested person as his agent. Therefore we aQswer your fifth 

question in the affirmative. 

BW:GOrwb 

APPROVED JUL 11; 1942 

/s/ Gerald C. Ham 

ATTORNEY GEEEBAL OF TEXAS 

Yours very truly 

ATTOBEEY GENERAL OF TEXAS 

By /s/ Benjamin Woodall 

By Benjamin Woodall, Assistant 

APPROVED: OPIEIOIi c0Im1lTEE 

BY: BWB , Chairman