Honorable W. C. McClaln 

District Attorney Opinion No. Q-2298 

Conroe, Texas Re: Interpretation of law 

regulating absentee 

Dear Sir: voting, Article 2956j 

Revised Civil Statutes, 

This is in reply to your letter of April 26, 1940, 

requesting the opinion of this Department interpreting Article 

2956, Vernon’s Annotated Civil Statutes, dealing with absentee 

voting. Your request was prompted by an inquiry from the 

County Clerk of Montgomery County and the following questioni 

are asked: 

“Question 11 Is it legal to send out a ballot 

or t6 permit a Notary Public to take out a ballot and 

application and have the elector slgn the application 

and vote the ballot not In the presence of the County 

Clerk, vhereas the law provides that the ballot shall 

be returned by mail? 

“Question 2: In Section 2 a provision is made 

that if the. application is on account of sickness or. 

physical disability a certificate of a licensed physiclan.‘ shall accompany it. It seems to me it would be 

impossible for a physSclan to determine 35 or 20 days 

ahead In many cases whether or not an elector would 

be able to attend the polls, and I will ask you, where 

sickness Is the basis of the application, if under 

that section an elector would not have to make his application and vote on the day of election, there.being 

no time specified. 

“Question 3: Does not subdivision 3 have application only to electors who are absent from the county of 

their residence?” 

Artlclti 2956 reads, in part, as follows: 

“Subdivision 1. Any qualified, elector of thls 

State who 1s absent from the county of hls residence, 

or because of sickness or physical dlsablllty can 

not appear at the poll place in the election precinct 
Honorable W. C. McClaln, Page 2 

of his residence, on the day of holding any general, 

special, or primary election, may, nevertheless, cause 

his vote to be cast at such an election in the precinct 

of his residence by compliance with one or other of the 

methods hereinafter provided for absentee voting. 

“Subdivision 2. Such elector shall make application 

for an official ballot to the county clerk in writing 

signed by the elector, or by a witness at the direction 

of said elector in case of latter’s inability to make 

such written application because of physical disability. 

Such application shall be accpmpanied by the poll tax 

receipt or exemption certificate of the elector, or, in 

lieu thereof, his affidavit in writing that same has 

been lost or mislaid. If the ground of application can 

be sickness or physical disability by reason of which 

the elector cannot appear at the polling place on election 

day, a certificate of a duly licensed physician certifying 

as to such sickness or physical dlsabllltg shall accompany 

the application. , 

“Subdivision 3. At any time not more than twenty (20) 

days, nor less than three (3) days, prior to the date of 

such an election, such elector making his personal appearance before the county clerk of the county of his residence at his office and delivering to such clerk his 

application aforesaid, shall be entitled to receive,from 

said clerk one official ballot which has been prepared 

in accordance with law for use in such election, which 

ballot is t-hen and there, In the office of said clerk of 

said county, and In the presence of said clerk and Of no 

other person, except the vltness who is authorized to 

assist elector in certain cases as hereafter provided, 

to bejmarked by the elector, or by sa,ld witness in case 

of. physical dlsabilltg of elector, so as to conceal the 

marklncr and same shall. In the presence of the clerk, 

be dep&ted ln[a ballot envelope furnished by said cierk, 

vhlch envelope shall bear upon the face thereof the name, 

official title and post office address of such county 

clerk, and upon the other side a printed affidavit in substantially the following form, to be filled out and signed 

by the elector; provided, however, that in case of the 

physical disability of elector preventing him from fllllng 

out and signing such affidavit, then the witness who assisted 

the elector in marking his ballot shall fill out and slgn 

affidavit for and in behalf of elector and shall also sign 

his, wltness”.nsme as prescribed In the following form: 
Honorable W. C. McClain, Page 3 

State of 

C,ounty of 

T -, do solemnly svear that I am a Resl- 

-~~ I dent ‘0; Precinct No. in l;ounr;y, ana 

am lawfully entitled to vote at’the election to be held in 

said precinct on the day of 

that~ I am prevented from appearing at the polling ilace in 

said Precinct on the da,te of such election 

ness). (physical dlsabllltg), (or because 

County) 

reasons I 

(elector to signify one of foregoing 

that the eiclosed ballot expresses my wishes, 

independent of any d%ctatlon or undue persuasion of any 

person; that I did not use any memorandum or device to aid 

me in the marking of said ballot. 

Signature of elector 

By: 

Name of :wltness who 

assisted elector in event 

of physical dlsablllty. 

“Subdivision 4. At any time’ not more than twenty (20) 

days, nor- less than three (3) days .prlor to the date of such 

an election, such.elector who makes written appllcatlon.for 

a ballot as provided for in Subdivision 2 hereof, shall be 

entitled to have his ballot cast at such an election on compliance with the following proVisIons:. 

“The ,appllcatlon, including fifteen cents (15#) to 

cover postage, shall be mailed to the County Clerk of the 

elector’s resi’dence whose duty it &all be forthwith %o 

mail to such :eledttir a’ blank .offlcitil ballot and ballot 

envelope as prqvlded in Subdivision 3, which ballot shall 

be marked by elector, or by witness at the direction of 

said elector in case of the ‘latter~‘s lnabllltg ~to mark suoh 

ballot because of physical disability, in the presence of 

a Notary Public or other persons qualified under the law 

to take acknowledgements, and in the presence of no other 

person except said witness and/or such officer, and in such 

manner that~s~ueh officer cannot know how the ballot is 

marked, and such ballot shall then in the presence of such 

officer be folded by the elector or by said witness in case 

of physical disability of said elector, deposited in said 

envelope, the envelope sec~urely sealed, the endorsement 

filled out, signed and sworn to by the elector, or in case 

of physical dlstibillty, then bjr the said witness for and In 

behalf of ~said elector,. and “ce&ifled by ‘such officer and 

then ‘mailed by ‘said ofHceP, postage, prepaid, to the County 

Clerk.’ (Underscoring ours) 
Honorable W. C. McClaln, Page 4 

You may note from reading this article that two 

methods are provided for voters who, because of absence from 

the county of their residenoe or because of sickness or physlcal disability, cannot appear at the poll place on the day of 

election. 

The first method is by written application signed by 

the elector or a vltness at his direction, accompanied by a 

poll tax receipt or exemption certificate, or, in lieu thereof, 

his affidavit in writing that the same has been lost or mislaid. 

If the elector claims the privilege of voting by absentee ballot 

on the ground of sickness or physical disability a certificate 

of a duly licensed physician certifying as to such sickness or 

physical disability must accompany the application. The appllcatlon, together with fifteen cents to cover postage, must be 

mailed to the County Clerk. Upon compliance with these requisites, the elector will be entitled to have his ballot cast at 

any time not more than twenty norlless than three days prior 

to the date of the election, and it is the duty of the county 

clerk within this time, forthwith to mall the elector a ballot 

vhich will be re-mailed to the county clerk by the elector. 

For further particulars, ve refer you to Subdivisions 2 and 4 

of Article 2956. 

The se~cond method is provided in Subdivision 3 of 

Article 2954, namely, by the personal appearance of the elector 

before .the county clerk at any time not more than twenty or less 

than three days prior to the date of the election. For further 

particulars, refer to Subdivision 3 of Article 2956. 

In ansver to your first question, therefore, we must 

advise that Article 2956 regulating absentee voting does not 

provide as a method the suggested procedure by vhlch a notary 

public will take out blank application and ballot, and have 

the elector sign the application and vote a ballot which will 

then be returned to the county clerk by the notary. 

In this connection we call. your attention to the case 

of Sartwelle v. Dunn (C.C.A. 1938) 120 S.W. (26) 130. There 

almost the identical procedure was followed. It appeared that 

ballots were taken from the county clerk’s office by a notary 

and a candidate who vere soliciting votes, to the residences 

of certain electors without request from them. Each expressed 

a willingness to vote, however, and the ballots vere then and 

there marked by the notary at their direction. The court said: 

I, 

. . . We recognize the general rule that the will 

of the electors should be respected when expressed at 

the ballot, but we are of the opinion that an elector 

exercising the right of suffrage through the medium 

provided by the absentee voting statute should at least 

substantially comply Vlth the requirements of such statute. 
Honorable W. C. McClaln, Page 5 

To hold that ballots such as these were cast in substantial 

compliance with the statute vould Ignore the plain and express provisions thereof and open the avenues of fraud, 

deception and intimidation through absentee voting In the 

conduct of electioni. 

"We are of the opinion that the trial court erred 

In refusing to sustain the challenge to these votes." 

We wish to point out that we are not passing upon the 

validity of absentee votes cast In a manner other than that provided by Article 2956. We confine our opinion to the duties of 

th$ county clerk with respect to the casting of absentee ballots. 

It is his duty to see that there is a substantial compliance with 

the terms of the statute; and Insofar as his duties are concerned 

the suggested procedure does not so conform. 

voting is 

In answer to your second question, the time for absentee 

s eclfled as 'not more than twenty(20) days, nor less 

than three P 3) days' prior to the date of the election. This 

'Urn6 is set forth in subdivision 4 for those absentee voters deslr- 

$ng to follov the procedure provided in subdivisions 2 and 4 of 

Article 2956. The last day application may be made and ballbt 

cast by one unable to participate because of physical disability 

or sickness Is the third day prior to the date of the election. 

If the election Is to be held on a Saturday, Tuesday midnight 

is the deadline. 

Your third question 1s whether or not Subdivision 3 

relates only to electors absent from the county of their residence. If you will refer to Article 2956, quoted above, you 

vi11 note that we have underscored those portions of subdivision3 

wherein specific attention has been given by the Legislature 

to cases of physical disability of the elector or illness. 

You. are, therefore, respectfully advised that not only 

electors who.will be absent from the .county of their residence 

on the day of holding the'electlon, dut also those unable to 

atteng beCause of sickness or physlcal~dlsablllty may avail 

themselves of the method provided in subdivision 3 of Article 

2956 for casting absentee ballots. 

APPROVED JUN 7, 1940 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

S/ GROVER SELLERS 

FIRST ASSISTANT ATTORNM 

GENERAL 

JDS:BBB 

Am! 

By ,S/.WALTER R. KOCH, 

Assistant 

By S/ JAMES D. SMULLEN 

APPROVED Opinion Committee, by BWB Chairman