4‘aE .ccTl-ORNEY GENERAL 

OFTEXAS 

AUSTXNILTE~S 

Hon. John R. Shook 

Criminal District Attorney 

Bexar County 

San Antonio, Texas 

Attention: Jay Sam Levey, 

Assistant 

Opinion No. O-4897 

Re: Construction of 

Article 2956, R.C.S., 

respecting absentee 

voting . 

Dear Mr. Shook: 

We beg 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 a ballot to such elector to his address located within the county? 

“2. On what day does absentee voting begin 

and on what day does absentee voting end for the 

general election to be held on November 3, 19421 

“3 . When do absentee ballots have to be in 

the hands of the county clerk in order to be 

counted in the election?” 

We answer 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 an elector 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 4 relates to the application for a ballot 

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 a blank 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 a Notary Public or other persons qualified 

under the law to take acknowledgments, and in 

the presence of no other person except said witness and/or such officer, and in such manner that 

such 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 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 and then mailed by said officer, 

postage prepaid, to the County Clerk.” 

It is thus apparent that Subdivision 2 deals with 

the elector who desires to cast his absentee vote by delivering same personally to the County Clerk, and Subdivision & 

deals with the elector ,who contemplates mailing h,i.s tXM.o-t 

to the County’ Clerk. Subdivision 2 necessarily requires the 

personal. appearance of the elector before the clerk, whereas 

Subdivision 4 clearly does not. It specifically authorizes 

the clerk to mail the ballot and envelope to the applicant, 

and likewise authorizes the elector to mail ,the ballot 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, we answered 

five specific questions with respect to the authority of ~the 

county clerk to send to an elector an absentee ballot raising points of irregularity in the application therefor, which 

opinion clearly involved your question above, and as clearly 

implied the right and duty of the clerk to send out such a 

ballot. A copy of that opinion is attached hereto. 

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

Hon. John FL Shook, page 3 (O-4897) 

“Upon receipt of any such ballot sealed in 

its ballot envelope duly endorsed, the clerk 

shall keep the same unopened until the second 

day prior to such election, and shall then enclose same together with the elector’s application and accompanying papers in a larger 

or carrier envelope which shali be securely 

sealed and endorsed with the name and official 

title of such clerk, and the words ‘this envelope contains an absentee ballot, and must ,be 

opened only at the polls eon election 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 

him on 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 6 deals with the final casting of the 

ballot, and reads as follows: 

“On the day of such election, and in the 

presence of the election officers, and the 

supervisors, if any, one o,f the judges of 

election shall, between the hours of 2:00 and 

3:OO o’clock open the carrier envelope only, 

announce the elector ps name and compare the 

signature upon the application with the signature upon the affidavit on the ballot envelope. 

In case the election board finds the affidavits 

duly executed, that the signatures correspond, 

that the applicant is a duly qualified eleotor 

of the precinct, and that he has not voted in 

person at said election they shall open the envelope containin: the e E ector’s ballot in such 

manner as not to deface or destroy the affidavit 

thereon, take out the ballot therein contained 

without permitting same to be unfolded or examined and having endorsed the ballot in like manner as other ballots are required to be endorsed, 

deposit the same in the proper ballot box and 

enter the elector’s name in the poll list the same 

as if he had been present and voted in person. 

If the ballot be challenged by any election 
‘ . 

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 name on the poll 

list. If the ballot be not admitted, there shall 

$endorsed on the baok thereof the word ‘reject- 

, and all rejected ballots shall be enclosed, 

securely sealed, in an envelope on which words 

‘rejected absentee ballots’ have been written, 

together with a statement of the precinct and 

the date of election, signed ~by the judges and 

clerks of election and returned in the same manner 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 and the affidavits and certificates accompanying same shall 

be returned by the officers of election to the 

county clerk who shall 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 

any time after the same have 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 much longer thereafter” as 

any court or reviewing authority may direct .‘I 

If, by the words “on what day does absentee voting 

begin”, you mean the 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.” As applied to the coming election on November 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. 

We held the same in Opinion No. O-4455, addressed to 

Honorable Dan U’. Jackson, District Attorney, Houston, Texas, 

a copy of which we hand you herewith. 

3. Your third question is answered by the last paragraph of Subdivision 5 above quoted; that is, no ballot not 

received back by the clerk on or before the third day prior to 

the election shall be voted. A ballot in the United States 
Hon. John R. Shook, page 5 (O-4897) 

mails not actually received by the clerk before midnight of 

Friday, October 30, should not be voted or Counted in the 

election of November 3* 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ocie Speer 

Ccie Speer, Assistant 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

APPROVED OCT 13, 1942 

/s/ Gerald C. Mann 

attorney general of texas 

os-MR:wb 

Enclosure