July 18, 1958 

Hon. Ted Butler 

County Attorney 

Karnes County 

Karnes City, Texas 

Dear Mr. Butler: 

Opinion No. WW-47&A 

Re: Legality of mailing a 

blank absentee ballot 

to an address within the 

county where the ground 

of application is absence or expected absenoe 

from the county on election day. 

You have requested a olarification of Attorney 

General's Opinion No. WW-474 on the following point: Is it 

lawful for the county clerk to mall a blank absentee ballot 

to a voter at an address within the county where the ground 

of application is absence or expected absence on election day, 

or must the ballot be mailed to the voter at an address outside the county? 

Opinion No. WW-474 holds that an elector who is 

present in the county of his residence at the time of applying 

for an absentee ballot, but who expects to be absent from the 

county on election day and applies for an absentee ballot on 

that ground, is entitled to vote an absentee ballot by compliance with either of the two methods set out in Article 5.05 

of Vernon's Texas Election Code. If he makes ap llcatlon by 

mail, the procedure is governed by Subdivision E of Artiole 

5.05, which provides in part: 

"The application 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, * + *" 

This provision applies to the mailing of all absentee ballots, 

either on the ground of illness or physical disability or on 

the ground of absence (or expeoted absence) from the county. 

The statute contains no further provision defining the clerk's 

duty. It does not make any express requirement that ballots 
. . 

Hon. Ted Butler, page 2 (WW-474A) 

mailed to voters applying therefor on the ground of absence from 

the county must be mailed to an address outside the county, and 

we are unable to find any basis in the language of the statute 

for reading this, requirement into it. 

So far as we have been able to find, the courts of 

this State have not ruled on the question of whether a person 

who is voting on the ground of expected absence but who is present in the county at the time of application, may vote an absentee ballot by mail. The courts have held that he is entitled 

to vote absentee, but the question of whether either method for 

voting absentee is available to him has not been ruled on directly. However, holdings in two cases on related questions substantiate our view that he may mail his application from a point 

within the county and is entitled to have the blank ballot mailed 

to him to an address within the county. 

In Roberts v. Dotson, 272 S.W.2d 164 (Tex.Civ.App. 

1954), the court construed the provision of Subdivision 4 which 

we have quoted above in the following language: 

"The statute does not direct that the ballot be sent to the elector's residence although 

this direction would be presumed in the absence 

of instructions to the contrary. Appellant concedes that the statute does nx necessarily require that the ballot be mailed to the elector's 

residence when he says 'Contestant would not contend that a voter would not be entitled to have 

his absentee ballot mailed to an address which 

might suit his convenience."' (EmphasSs supplied.) 

The construction was in connection with the legality of ballots 

of physically disabled voters in answer to a contention that the 

statute-had been violated because the ballots were mailed to an 

address other than the voter's residence; but the holding is 

nevertheless pertinent to the present inquiry since the statutory provision Is applicable 'to all classes of absentee voters. 

In Eason v. Robertson, 288 s.w.2d 269 (Tex.Clv.App. 

1956, error dism.), the contention was made that a pe'rson voting 

absentee on the ground of absence from the county could not vote 

by personal appearance at the clerk's office, and that it would 

be necessary for him to go outside the county to apply for his 

ballot by mail. The court rejected the contention in the following language: 

"Appellant in his brief and in oral argument before us on submission further contended 

and stated in effect that if a person desired 
Hon. Ted Butler, page 3 (WW-474A) 

to comply with the law governing absentee 

voting that it would be necessary for him to 

go outside of the county or state and make 

application by letter written outside of the 

county or state to the County Clerk of his 

county to the effect that he was out of the 

county or state and that he would be absent 

on election day and ask the Clerk to forward 

him the necessary papers so that he could 

file an absentee ballot, and in the event the 

voter's situation changed and he was in the 

county on election day that the vote cast by 

him as an absentee voter would be illegal and 

void. It is our view that appellant's contention in this respect is without merit and an 

unreasonable interpretation to be placed upon 

the absentee voting law, and further we think 

it is condemned by the holding of our Supreme 

Court in Wood v. State, supra." 

You are advised ,that in our opinion an elector 

who applies for an absentee ballot on the ground of absence 

or expected absence from the county of his residence on election day is entitled to have a blank ballot mailed to him at 

an address within the county of his residence if he so desires, and that it is the clerk's duty to mail the ballot to 

the address directed by the voter. 

SUMMARY 

An elector who is present in the county of 

his residence during the period for absentee 

voting but who expects to be absent from the county 

on election day is entitled to vote absentee either 

by personal appearance at the clerk's office or by 

mail, and it is lawful for the clerk to mail a 

biank absentee ballot to him at an address within 

the county where proper application by mail is made 

therefor. There is no requirement that the ballot 

must be mailed to the voter at an address outside 

the county. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

Assistant 
- .- 

Hon. Ted Butler, page 4 (WW-474A) 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

F.C. Jack Goodman 

J.C. Davis, Jr. 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

W.V. Geppert