### GENERAL 4‘aE .ccTl-ORNEY

OFTEXAS

AUSTXNILTE~S

Hon. John R. Shook Criminal District Attorney Bexar County San Antonio, Texas Attention: Jay SamLevey, Assistant Opinion No. O-4897 Re: Construction of Article 2956, R.C.S., respecting absentee voting

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Dear Mr. Shook:

Webeg to acknowledge receipt of your letter respecting the construction of Article 2956, of the Revised Civil Statutes, your questions propounded being as follows:

“1. Where an elector intends to be absent from the county upon election day, mails in his application to the county clerk within the period described by law, together with the statutory fee to cover postage, is It the duty of the county clerk to mail aballot to such elector to his address located within the county?

“2. Onwhat day does absentee voting begin and onwhat day does absentee voting end for the general election to be held onNovember 3, 19421

“3

. Whendo absentee ballots have to be in the hands of the county clerk in order to be counted in the election?” Weanswer your questions categorically, giving briefly our reasons for such answer, in the order propounded by you, as follows:
1. Subdivision 3 of Article 2956 authorizes the county clerk to deliver to anelector desiring to cast an absentee vote (such elector making his personal appearance before the county clerk) within the time there specified, and provides for the marking and depositing of the ballot by the elector. Subdivision 4relates to the application for aballot by an elector, as follows:-- -

Hon. John R. Shook, page 2 (O-48,97)

“The application, including fifteen cents (ls#) to cover postage, shall, be maiLed to the County Cl.erk of the elector’s residence whose duty it shall be forthwith to mail to such elector ablank official. ballot and ballot envelope as provided 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 inability to mark such ballot because of physical disability, in the presence of aNotary Public or other persons qualified under the law to take acknowledgments, andin thepresence of no other person except said witness and/or such officer, andin such manner that such officer cannot knowhowthe ‘ballot is marked, and such ballot shall then in the presence of such officer be folded bythe elector or by said witness in case of physical disabilit,y of said elector, deposited in said envelope, the envelope securely sealed, the endorsement filled cut, signed and sworn to by the elector, or in case o:f physical disability, then by the said witness for and in behalf of said elector, and certified by such officer andthen mailed by said officer, postage prepaid, to the County Clerk.” It is thus apparent that Subdivision 2deals with the elector whodesires to cast his absentee vote by delivering samepersonally to the County Clerk, and Subdivision & deals with the elector ,whocontemplates mailing h,i.s tXM.o-t to the County’ Clerk. Subdivision 2necessarily requires the personal. appearance of the elector before the clerk, whereas Subdivision 4clearly does not. It specifically authorizes the clerk to mail the ballot and envelope to the applicant, andlikewise authorizes the elector to mail ,theballot back to the clerk duly marked, Your first qu.estiori, therefore, is answered in the affirmative.

In Opinion No. O-4700, addressed to Hinore.ble Ben J. Dean, District Attorney, Breckenridge, Texas, weanswered five specific questions with respect to the authority of ~the county clerk to send to anelector anabsentee ballot raising points of irregularity in the application therefor, which opinion clearly involved your question above, and as clearly implied the right andduty of the clerk to send out such a ballot. Acopy of that opinion is attached hereto.

2. Subdivision 5, dealing with the receipt anddisposition of ballots by the clerk, is as followsr. .

Hon. John FLShook, page 3 (O-4897)

“Upon receipt of any such ballot sealed in its ballot envelope duly endorsed, the clerk shall keep the sameunopened until the second day prior to such election, and shall then enclose sametogether with the elector’s application and accompanying papers in alarger or carrier envelope which shali be securely sealed and endorsed with the nameand official title of such clerk, andthe words ‘this envelope contains anabsentee ballot, andmust,be opened only at the polls eonelection day,’ and the clerk shall forthwith mail same, or deliver it in person, to the presiding judge of election, or to any assistant judge of election, in said precinct o

“And ballots mailed out by the county clerk within the legal tfme, but not received back by himon or before the third day prior to the election on the day of elec,tion, shall not be voted, but shall remain Ia the custody of the county clerk during the thirty (30) day period provided in Subdivision 

### 6.” Subdivision 

### 6deals with the final casting of the ballot, andreads as follows:

“Onthe day of such election, andin the presence of the election officers, andthe supervisors, if any, one o,fthe judges of election shall, between the hours of 2:00 and 3:OO o ’clock open the carrier envelope only, announce the elector psnameand compare the signature upon the application with the signature upon the affidavit onthe ballot envelope. In case the election board finds the affidavits duly executed, that the signatures correspond, that the applicant is aduly qualified eleotor of the precinct, andthat hehas not voted in person at said election they shall open the envelope containin: the eE ector’s ballot in such manner as not to deface or destroy the affidavit thereon, take out the ballot therein contained without permitting sameto be unfolded or examined andhaving endorsed the ballot in like manner as other ballots are required to be endorsed, deposit the samein the proper ballot box and enter the elector’s namein the poll list the same as if he had been present andvoted in person. If the ballot be challenged by any election‘

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Hon. John R. Shook, page 4 (O-4897)

officer, supervisor, party cha~llenger, or other person, the grounds of challenge shall, be heard and decided according to law, including the consideration of any affidavits submitted in support of or against such challenge. If the ballot be admitted, the words ‘absentee voter’ shall be set down opposite the eleotor’s nameonthe poll list. If the ballot be not admitted, there shall $endorsed onthe baok thereof the word ‘reject-

, andall rejected ballots shall be enclosed, securely sealed, in an envelope onwhich words

‘rejected absentee ballots’ have been written, together with a statement of the precinct and the date of election, signed ~bythe judges and clerks of election and returned in the samemanner as provided for the return and preservation of official ballots voted at such election. In all cases the application poll tax receipt or exemption certificate, ballot envelope andthe affidavits and certificates accompanying same shall be returned by the officers of election to the county clerk whoshall keep all such papers except poll tax receipts and exemption certificates for one (1) year and shall return poll tax receipts and exemption certificates to the voter at anytime after the samehave been returned to him except in case of challenge when such poll tax receipts and exemption certificates shall be held thirty (30) days and as muchlonger thereafter” as any court or reviewing authority maydirect

.‘I If, by the words “on what day does absentee voting begin”, you meanthe act of the voter in depositing or mailing to the clerk his vote, the answer is “not more than twenty days prior to the date of the election.” Asapplied to the coming election onNovember 3, that would be October 14. In like manner, the absentee voting ends not less than three days prior to the election, which, in the coming November election, would be midnight, October 30.

Weheld the samein Opinion No. O-4455, addressed to Honorable DanU’

.Jackson, District Attorney, Houston, Texas, acopy of which wehandyou herewith.

3. Your third question is answered by the last paragraph of Subdivision 5above quoted; that is, no ballot not received back by the clerk on or before the third day prior to the election shall be voted. Aballot in the United StatesHon. John R. Shook, page 

### 5 (O-4897)

mails not actually received by the clerk before midnight of Friday, October 30, should not bevoted or Counted in the election of November 3* Very truly yours ATTORNEY

GENERAL

OFTEXAS By/s/ Ocie Speer Ccie Speer, Assistant APPROVED:OPINIONCOMMITTEE BY: BWB,CHAIRMAN APPROVED

OCT13, 1942 /s/ Gerald C. Mann attorney general of texas os-MR:wb Enclosure