DAN MORALES 

.4TTO”X:EI GEXERAL 

@ffice of tty Elttornep @enera 

S3tate of 4Lexae 

September 24,1992 

Honorable John H. Hannah, Jr. 

Secretary of State 

State of Texas 

P. 0. Box 12697 

Austin, Texas 7871 l-2697 

Opinion No. DM-168 

Re: When the names of persons voting 

early by personal appearance become 

public information (RQ-369) 

Dear Mr. Hannah: 

You ask whether the names of persons voting in an election early by personal 

appearance become available for public inspection prior to the closing of the polls 

on election day. The period for early voting by personal appearance generally 

begins on the 20th and ends on the 4th day prior to election day. See Elec. Code 

$! 85.001. The names of persons voting early by personal appearance appear, inter 

uiia, on the early voting ballot applications submitted by voters at the early voting 

locations and on the early voting poll lists and early voting rosters completed by the 

early voting officials. See Elec. Code 5s 84.001 (early voting applications), 85.031 

(early voting poll lists), 87.121 (early voting rosters). 

Section 61.007 of the Election Code, in making it an offense for an election 

off~cial or watcher to reveal the “names of persons who have or have not voted in 

the election” before the polls close and the last voter has voted, indicates that 

information as to who has voted is generally not available to the public until after 

the election. See also Open Records Decision No. 38 (1974) (names of voters in 

school election become open to public access once polls tr!r,e closed, citing 

predecessor provisions of section 61.007 in former Election &de). However, 

having reviewed the provisions of the Election Code specifically applicable to early 

voting, we conclude that those provisions indicate a legislative intent that the names 

of persons voting early by personal appearance become public at the time such 

persons vote and that their release is not be subject to the section 61.007 

proscription on revealing voter information prior to the time the polls close on 

election day. 

Title 6 of the Election Code, of which section 61.007 is a part, applies to the 

conduct of voting generally. However, title 7 of the code applies specifically to early 

voting, the portion of the election process to which the information at issue here 

p. 883 
Honorable John H. Hannah, Jr. - Page 2 (DM-168) 

relates. Title 7, in section 81.002, provides that “[t]he other titles of this code apply 

to early voting except provkiom that are inco~fire~ with rhti Me or that cannot 

feasibly be applied to early voting.” (E m ph asis added.) In sections 87.121 and 

86.014, title 7, we find two provisions which we construe to be inconsistent with the 

general strictures in section 61.007 on release of voting information, and which, by 

the terms of section 81.002, quoted above, prevail over the section 61.007 

restrictions. Section 87.121 provides in pertinent part: 

(a) The early voting clerk* shall maintain for each election 

a roster listing each person who votes an early voting ballot by 

personal appearance and a roster listing each person to whom 

an early voting ballot to be voted by mail is sent. 

(b) For each person listed, the applicable roster must 

include: 

(1) the person’s name, address, and voter registration 

number; 

(2) an identification of the person’s county election 

precinct of registration; and 

(3) the date of voting or the date the ballot was mailed 

to the person, as applicable. 

(c) Each roster shall be updated daily. 

. . . . 

(f) Information on the roster for a person to whom an early 

voting mail ballot has been sent is not available for public 

inspection, except to the voter seeking to verify that the 

information pertaining to him is accurate, until 24 hours after 

the time a ballot was mailed to the voter. [Footnote added.] 

Section 86.014(a) provides that “[a] copy of an application for a ballot to be voted by 

mail may be obtained from the early vothrg clerk 48 hours after the receipt of the 

application by the clerk.* 

*See Ek C&c. Q 83.001 er seq. (early voting clerk for various elections ). 

*Al application for a ballet to be v&d by mall cont&.5 the applicant’s name, rwide0L-c 

address, and signature, the address to which the ballot is to be mailed, the election(s) for which tbe 

application is made, an indication of cligiiity for early voting, and witness information. Elec. Code 

P 84.W2. If the applicant does not enter his voter registration number and county eledion precinct, the 

p. 884 
Honorable John H. Hannah, Jr. - Page 3 (w168) 

Sections 87.121(f) and 86.014(a) expressly provide for public access to 

information about persons voting early by mail prior to the closing of the polls on 

election day, the point at which section 61.007 indicates voter information generally 

first becomes available for an election. Applications for ballots to be voted early by 

mail may be. submitted between the 60th day and the seventh day preceding the 

election; mail ballots may be sent out begimktg on the 45th day preceding the 

election.3 Elec. Code 98 84.007(c), 86.004. Thus, the information on the early 

voting roster pertaining to mail ballot applicants may be made available to the 

public, under section 87.121(f), as early as 24 hours after the sending out of the 

corresponding mail ballots - the latter beginning as early as 45 days before election 

day. Copies of mail ballot applications themselves may be made available, under 

section 86.014(a) as early as 48 hours after the corresponding ballots are sent out. 

The bill analysis to the 1991 bill adding section 87.121(f) explains that 

amendment as “requir[ing] a 24-hour delay for the availability to the general public 

of the roster of voters requesting a ballot by mail.” Bill Analysis, S.B. 1234,72d Leg. 

(1991) (emphasis added). By the use of the word “delay” the bill analysis for the bill 

adopting section 87.121(f) clearly suggests that the legislature understood that, but 

for that amendment, the mail voter roster would become available to the public 

immediately. The bill analysis further implies, we think, that the roster of persons 

voting early by personal appearance, the release of which was not addressed by the 

amendment, neither had been nor was to be subject to such a “delay” in its release - 

that the personal appearance early voting roster had been and was to remain 

immediately available.’ We believe that such a reading of these provisions is 

consistent with the overall tenor of sections 86.014 and 87.121. 

We note further that the Office of the Secretary of State has consistently 

construed the applicable provisions, even prior to the 1987 addition of section 

86.014 and the 1991 addition of section 87.121(f), to make early voter information 

available prior to election day despite the general strictures on release of voter 

information contained in section 61.087. The secretary of state, in a 1986 

(footnote contiolud) 

ckrk enters such information oa the applicatien before providing the applicant a ball&. Id 

P 86.001(c)(d). 

%he marked mail ballots must bc received back by tbe time the polls close on election day. 

Elec. Code 0 &lO7(a). 

%&ion 86.014 was added in 1987. Acts 1987,7&b Leg., cb 4% p 32 Tbe legislative history 

for that amendment is not helpfol here. 

p. 885 
Honorable John H. Hannah, Jr. - Page 4 W-168) 

memorandum, pointed out that under the provisions then in effect there could be no 

other purpose for the daily updating of the early voting roster, as provided for in 

section 87.121(c), than the maintenance of accurate information for ongoing 

availability to the public. See Memorandum from Myra A. McDaniel, Secretary of 

State, to Absentee Voting Clerks (Apr. 9, 1986). The secretary also noted that, at 

the time of its replacement by the current Election Code in 1985, the former 

Election Code of 1951, in article 5.05, subdivision 11(c), expressly made absentee 

(now “early”) voting records open to the public, and that there was no indication in 

the legislative history of the adoption of the current Election Code that the 

legislature intended to change this arrangement. See Legislative Council, Revisors’ 

Notes to 1985 Election Code; Acts 1985, 69th Leg., ch. 211 (adopting new Election 

Code). Particularly given the secretary of state’s express statutory duty to maintain 

uniformity in the interpretation of the election laws, Elec. Code 8s 31.003, 31.004, 

we think that a court would accord considerable deference to that office’s longstanding position on the issue presented here. See, eg., CU&W v. Kudane, 427 

S.W.2d 605 (Tex. 1968). 

Accordingly, it is our opinion that the release of the names of persons voting 

early by personal appearance is not subject to the provisions of section 61.007 of the 

Election Code restricting release of the names of voters until after the polls close on 

election day. Nor do we find other restrictions on the release of such information in 

the Election Code, the Open Records Act (article 6252-17a, V.T.C.S.), or elsewhere 

in Texas law. Therefore, we advise that the names of persons who have voted early 

by personal appearance become public immediately upon such persons’ voting and 

should be made available with reasonable dispatch during the regular business 

hours of the records’ cust0dian.S 

sSee Ekction Code 0 1.012 (public election records to be made available doriog records’ 

custodians’ regular business hours). We note that section l.Ou(b) of the Election Code permits the 

custodian of public election records to ‘adopt reamtable rules limiting public a-’ for the pwposc 

of “safegwwling tbe cle&m rcu)r& or ecomnnihg the custodian’s time.” We do not think it 

tteeamy to determine here precisely what sorts of delay or other impediments to public access 

oecasioncd by such dcs the law might umoteeaacc ia this particular case. We trust that any such 

nrks adopted by the custodian wiU nevcrthelcss aUow for public access to the records in question with 

masmable immediacy. complur V.T.C.S. art. 625%17a, 0 4 (records custodian to arrange reasonable 

time for providing public access to records in active use or storage). 

p. 886 
Honorable John H. Hannah, Jr. - Page 5 0+168) 

SUMMARY 

The names of persons voting by personal appearance during 

the early voting period for an election are open to the public and 

their release is not subject to the provision of Election Code 

section 61.007 that the names of persons voting may not be 

revealed until after the polls close on election day. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEA HIcK!s 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 887