Tmm Amrsnv~~ GENERAJ, 

OF TEXAS 

AUEPI-IN. TEXAS 78711 

April 2, 1974 

The Honorable Mark W. White,, Jr. 

Secretary of State 

Capitol Building 

Austin, Texas 

Dear Secretary White: 

Opinion No. H- 267 

Re: Absentee voting 

rights of prisoners 

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 of New 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 of the 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 of previous felony convictions. Article 6, $ 1, Constitution of Texas; Article 5.01, Election Code, V. T. C. S. 

The applicable Texas Law authorized by Article 6, $ 2, of the Constitution is found principally in Article 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 of his residence on the day of the 

election, or who because of sickness, physical disability, or religious belief cannot appear at the polling 

place in the election precinct of his residence on the 

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

for absentee voting. If a voter’s religious belief 

prohibits him from voting during any part of the 

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 of this subdivision may vote by personal appearance at the 

clerk’s office if they are able to make such appearance 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 of the 

election . . . . 

“(ii) Qualified voters who, before the beginning 

of the period for absentee voting, make application 

for an absentee ballot on the ground of expec,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 in his application that he expects to be 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 of the election, and may be 

mailed to the clerk or delivered to him by the voter in 

person, but the clerk shall not furnish a ballot to the 

voter by any 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 

of the voter’s residence, but in every case the 

ballot must be mailed to the voter at an address 

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 on the 

carrier envelope is certified by an officer other 

than an officer of the county of the voter’s residence. 

“(iii) Qualified voters who, after the beginning 

of the 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 of rpplyrng for an absentee ballot.and expect to 

be abaent from such county during the clerk’s regular office hours for the remainder of the period for 

absentee voting. . . .’ The clerk shall not mail a 

ballot to any 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 in which the 

application ie received and the carrier envelope in 

which the ballot is returned to the clerk are each 

postmarked from a point,outside the county and the 

affidavit on the carrier envelope is ce,rtified by an 

officer other than an officer of the county of the voter’s 

residence. . . . ” (emphaeis added) 

The New York statute considered in O’Brien wan limited in part, to 

those who, “because of illness or physical disability” could not appear personally to vote. The lower New York courts construed “physical disability” 

to include inability to go to the polls because of confinement. However, the 

New York Court of Appeals rejected the argument and held that those lodged 

in county.jails were not entitled to vote 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 of A,ppeals 

and concluded: 

I’ We have no choice, therefore, but to hold that, 

as construed, the New York statute denies appellants the equal protection of the 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 of his 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 of Austin, 331 S. W. 2d 737 (Tex. 1960); 

Trustees of Independent School District v. Johnson County Democratic 

Executive Committee, 52 S. W. 2d 71 (Tex.1932); State v. Shoppers World, 

&.. 380 S. W. 2d 107 (Tex. 1964). We do not believe here, however, 

that the statute can be construed in such a manner as to avoid a conclusion of unconstitutionality. 

Our statute goes further than the New York statute and provides 

in Subdivision 2 of Article 5.05 of the Election Code, V. T. C. S., that, 

if the ground of voting absentee is physical disability, the application for 

the absentee ballot must be accompanied by a certificate of a physician, 

a chiropractor or an accredited Christian Science practitioner certifying 

to the physical disability. We are therefore precluded from interpreting 

Article 5.05 to include confinement within the framework of “physical 

disability. ” 

We are of the opinion, therefore, that Article 5.05 does not permit absentee voting by an otherwise qualified voter, who is confined in 

the county jail of the county of his residence and, to that extent, is unconstitutional under the holding of the O’Brien case. In other words, those 

portions of Article 5.05 which prevent these voters from voting cannot be given 

that effect, and theylike others in the jails, must be given the opportunity to cast their votes. 

p. 1254 
. . 

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

SUMMARY 

The provisions of Article 5.05 of the Election 

Code preventing a qualified voter confined in the county 

jail of the county of his residence from voting are 

unconstitutional. 

Very truly yours, 

VAttorney General of Texas 

APPROKED: 

Opinion Committee 

p. 1255