# Tmm Amrsnv~~ GENERAJ, OF TEXAS AUEPI-IN. **TEXAS** 

### 78711

April 2, 1974
The Honorable Mark W. White,, Jr. Secretary ofState Capitol Building Austin, Texas Dear Secretary White: Opinion No. H- 267 Re: Absentee voting rights ofprisoners confined in county jails

On January 16, 1974, the United States Supreme Court issued its decision in O’Brien v. Skinner, 42 U.S. L.W. 4151, holding invalid laws ofNew York State governing absentee voting because those laws arbitrarily discriminated between prisoners confined in the county of their residence and those whose residence was in a different county and thus unconstitutionally denied them equal protection ofthe law guaranteed by the Fourteenth Amendment. You have requested our opinion concerning the effect of that decision on the applicable election laws of Texas. Parenthetically, our response in no respect applies to those prisoners who are disqualified to vote by reason ofprevious felony convictions. Article 6, $1, Constitution of Texas; Article 5.01, Election Code, V.T. C.S. The applicable Texas Lawauthorized byArticle 6, $2, ofthe Constitution is found principally inArticle 5.05, Election Code, V. T. C.S.

“Subdivision 1. Who may vote absentee. Any qualified voter of this state who expects to be absent from the county ofhis residence on the day of the election, or who because ofsickness, physical disability, or religious belief cannot appear at the polling place in the election precinct ofhis residence on the day ofthe election, may nevertheless **cause** his vote to be cast at any election held in this state by compliance with the applicable method herein provided

po 1251The Honorable Mark W. White, Jr., page 2 (H-267)

for absentee voting. Ifavoter’s religious belief prohibits him from voting during any part ofthe time during which the polla are open on the day of the election, he shall nevertheless be entitled to vote absentee even though the prohibition does not operate throughout the entire time that the polls are open.

“Absentee voting shall be conducted by two methods: (1)voting by personal appearance at the clerk’s office, and (2) voting by mail. All voters coming within the foregoing provisions ofthis subdivision may vote by personal appearance at the clerk’s office if they are able tomake such appear

### ance within the period for absentee voting. The following persons, and no other, may vote by mail:

“(i) Qualified voters who because of sickness or physical disability, or because of religious beliefs, cannot appear at the polling place on the day ofthe election
. . . .

“(ii) Qualified voters who, before the beginning ofthe period 

### for absentee voting, make application for an absentee ballot on the ground ofexpec,ted absence from the county of their residence on election day, and who expect to be absent from the comtyduring the clerk’s regular office hours for the entire period of absentee voting. The voter must state inhis application that he expects tobe absent from the county of his residence on election day and during the clerk’s regular office houra for the entire period for absentee voting. The application shall be made not 

### more than sixty days before the day ofthe election, and may be mailed to the clerk or delivered tohim by the voter in person, butthe clerk shall not furnish a ballot to the voter byany method other than by mailing it to him.

p. 1252.
The Honorable Mark W. White, Jr., page 3 (H-267)

. Applications made under this paragraph may be mailed either from within or withoutthe county ofthe voter’s residence, but in every 

### case the ballot must be mailed to the voter at anaddress outside the county. The ballot shall not be counted unless the carrier envelope in which the ballot ia returned to the clerk is postmarked,from a point outside the county and the affidavit 

### onthe carrier envelope is certified byan officer other than an officer of the county ofthe voter’s residence.

“(iii) Qualified voters who, after the beginning ofthe period f.or absentee voting, apply for an absentee ballot on the groundof expected absence from the **county** and who are absent from such county at the time ofrpplyrng for an absentee ballot.and expect to be abaent from such county during the clerk’s regular office hours for the remainder ofthe period for absentee voting.
. . .’ 

### The clerk shall not mail a ballot toany such voter unless the envelope in which the application received ispostmarked from a point outside the county, and the ballot must be mailed to the voter at an address outside the county. The ballot shall~not be counted unless the envelope inwhich the application ie received and the carrier envelope in which the ballot is returned tothe clerk are each postmarked from a point,outside the county and the affidavit on the carrier envelope is ce,rtified byan officer other than an officer ofthe county of the voter’s residence.
. . . ” (emphaeis added) The New York statute considered in O’Brien wan limited in part, to those who, “because ofillness or physical disability” could not appear personally tovote. **The** lower New **York courts**  construed “physical disability” to include inability to go to the polls because of confinement. However, the New **York** Court ofAppeals rejected the argument and held that those lodged in county.jails were not entitled tovote absentee.

**ps 1253** .

The Honorable Mark W. White, Jr., page 4 (H-267)

Recognizing that the construction given the statutes by the lower courts “may well have been a reasonable interpretation, ” the Supreme Court felt itself bound by the construction given by the Court ofA,ppeals and concluded:

I’We have no choice, therefore, but tohold that, as construed, the New York **statute** denies appellants the equal protection ofthe law guaranteed by the Fourteenth Amendment. ” (42 U.S. L.W. at 4153) The Texas **statutes** provide for absentee voting by a person phyeitally within the county ofhis residence on election day only, as set **out** in Subdivision l(i), **supra,** when, because of sickness or physical diaability or religious beliefs he cannot **appear** at the polling place on election day. Texas courts have avoided giving a statute an interpretation that is clearly unconstitutional, if some other reasonable interpretation is possible. State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960); Trustees ofIndependent School District v. Johnson County Democratic Executive Committee, 52S.W. 2d 71(Tex.1932); State v. Shoppers World, &.. 380S.W. 2d 107 **(Tex.** 1964). We do not believe here, however, that the statute can be construed in such a manner as toavoid a conclusion ofunconstitutionality. Our **statute** goes further than the New **York** statute and provides in Subdivision 2ofArticle 5.05 of the Election Code, V. T. C.S., that, if the ground ofvoting absentee is physical disability, the application for the absentee ballot must be accompanied by a certificate ofaphysician, a chiropractor or an accredited Christian Science practitioner certifying to the physical disability. We are therefore precluded from interpreting Article 5.05 toinclude confinement within the framework of “physical disability. ” We are ofthe opinion, therefore, that Article 5.05 does not permit absentee voting byan otherwise qualified voter, who is confined in the county jail of the county ofhis residence and, to that extent, is unconstitutional under the holding ofthe O’Brien case. In other words, those portions ofArticle 5.05 which prevent these voters from voting cannot be given that effect, and theylike others in thejails, must be given the opportunity to cast their votes.

p. 1254. .

The Honorable Mark W. White, Jr., page 5 (H-267)

SUMMARY The provisions ofArticle 5.05 ofthe Election Code preventing aqualified voter confined in the county jail ofthe county ofhis residence from voting are unconstitutional. Very truly yours,

VAttorney General ofTexas APPROKED:

Opinion Committee

p. 1255