July 18, 1958

Hon. Ted Butler County Attorney Karnes County Karnes City, Texas

Dear Mr. Butler: OpinionNo. WW-47&A
Re: Legality of mailing a blank absenteeballot to an addresswithin the countywhere the ground of application is absence or expected absenoe from the county on election day.
You have requested a olarificationof Attorney General's OpinionNo. WW-474 on the followingpoint: Is it lawful for the county clerk to mall a blank absenteeballot to a voter at an addresswithin the countywhere 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?

OpinionNo. WW-474 holds that an electorwho 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 absenteeballot by compliance with either of the twomethods set out in Article 5.05 of Vernon's Texas Election Code. Ifhe makes ap llcatlonby mail, the procedure is governedby SubdivisionE of Artiole 5.05, which provides in part:

"Theapplication shallbe mailed to the county clerk of the elector's residencewhose duty it shallbe forthwith to mail to such elector a blank official ballot and ballot envelope, * + *" This provision applies to themailing of all absentee ballots, either on the ground of illness or physical disabilityor on the ground of absence (orexpeotedabsence) from the county. The statute containsno furtherprovision 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 countymust 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 absencebut who is present in the county at the time of application,may vote an absenteeballot by mail. The courtshave held thathe is entitled to vote absentee,but the question of whether eithermethod for voting absentee is available to him has not been ruled on directly. However,holdings in two cases on related questions substantiate our view thathe may mail his application from a point within the county and is entitled to have the blank ballotmailed tohim to an addresswithin the county.

In Robertsv. Dotson, 272 S.W.2d 164 (Tex.Civ.App. 1954), the court construed theprovision of Subdivision4 which we have quoted above in the following language:

"The statutedoes not direct that the ballot be sent to the elector's residencealthough this directionwould be presumed in the absence of instructions to the contrary.Appellant concedes that the statutedoes nx necessarily require that the ballot be mailed to the elector's residencewhen he says 'Contestantwould not contend that a voter would not be entitled to have his absenteeballotmailed to an addresswhich might suithis convenience."' (EmphasSssupplied.)
The constructionwas in connectionwith the legality of ballots of physically disabledvoters in answer to a contention that the statute-hadbeen violated because the ballotswere mailed to an address other than the voter's residence;but theholding is neverthelesspertinent to thepresent inquiry since the statutory provision Is applicable 'to all classes of absenteevoters.
In Eason v. Robertson, 288 s.w.2d 269 (Tex.Clv.App. 1956, error dism.), the contentionwas 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 itwould 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:

"Appellantin his brief and in oral argument before us on submission further contended and stated in effect that if a person desiredHon. Ted Butler, page 3 (WW-474A)

to complywith the law governingabsentee voting that it would be necessary for him to go outside of the county or state andmake applicationby letterwritten 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 electionday and ask the Clerk to forward him the necessarypapers so thathe could file an absenteeballot, and in the event the voter's situation changed and he was in the county on electionday that the vote cast by him as an absenteevoter would be illegal and void. It is our view that appellant's contention in this respect is without merit and an unreasonable interpretationto be placed upon the absenteevoting law, and furtherwe think it is condemnedby the holding of our Supreme Court in Wood v. State, supra."
You are advised ,thatin our opinion an elector who applies for an absentee ballot on the ground of absence or expectedabsence from the county of his residence on election day is entitled to have a blank ballot mailed to him at an addresswithin the county of his residence if he so desires, and that it is the clerk's duty to mail the ballot to the address directedby the voter.
SUMMARY
An electorwho 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 absenteeballot to him at an addresswithin the countywhere proper applicationby 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