July 15, 1958

Hon. Ted Butler County Attorney Karnes County Karnes City, Texas

Dear Mr. Butler: Opinion No. WW-474
Re: Whether an elector who is within the county of his residence during the period for absentee voting, but who expects to be absent on election day and applies for an absentee ballot on that ground, may vote absentee by mail.
You have requested an opinion on the following question:
"A qualified electormakes application for

an officialballot to the county clerk in writing and signedby the elector. Such application is accompaniedby the poll tax receipt or exemption certificateof the elector, or, in lieu thereof, his affidavit in writing that samehas been lost or mislaid. "May said elector at any time not more than twenty days,nor less than three days, prior to the date of such an election,vote an absentee ballot without making his personal appearancebefore the county clerk, although said elector is still in the county and in the precinct of his residence at the time, and who is physically able to make his appearance before the county clerk at said time, but who will be absent from the county on electionday, and is it the duty of the county clerk to mail to said elector the ballot?". . .

Hon. Ted Butler, page 2 (WW-474)

Your opinion request assumes, correctly, that an elector Is entitled to vote absentee under the circumstances you have outlined, and is concerned onlywith the question of whether he has the choice of voting by mall Instead of by personal appearance at the county clerk's office.

There have been three prior Attorney Qeneral's opinions on this question. Opinions appearing In Letters of the Texas Attorney General'sOffice,Volume 358, p, 241 (1934) and Volume 372, p. 643 (1936)held that eithermethod wa8 available.A third opinion appearing inVolume 382, p. 669 (1938)held that a voter such as you have described should vote absentee only by personal appearanceat the clerk's office, without referring to the former opinions.

Subdivision 1 of Section 37 of the Texas Election Code (Art. 5.05, Subd. 1,Vernon's Texas Election Code) defines the classes of electorswho are entitledto vote absentee. It reads as follows:

"Subdivision1. Any qualifiedelector of this State who is absent from the county of his residence, or becauseof sicknessor physical disability cannot appear at the poll place in the election precinct of his residence,on the day of holding any general, special,or primary election,may, nevertheless, causehis vote to be cast at such an electionby compliancewith one or other of themethods hereinafterprovided for absentee voting." (Emphasissupplied.) Subdivision 2 requires the elector to make an application in writing, accompaniedby his poll tax receipt or exemption certificate or, in lieu thereof,his affidavit that samehas been lost or mislaid, and also requires a physician's certificate if the ground of applicationis sickness or physlcal disability.

Subdivision 3 provides that "such electormaking his personal appearancebefore the county clerk of the county of his residence and delivering to such clerkhis application aforesaid," shall be entitled to receivean official ballot from the clerk.

Subdivision 4 provides that
' * * * such electorwho makes written application for a ballot as provided for in Subdivision 2 hereof, shallbe entitledto have his ballot cast at such an electionon compliance with the followingprovisions:. .. .

Hon. Ted Butler,page 3 (WW-474)

"Theapplluatioc shallbe mailed to the county clerk of the elector's residencewhose duty it shallbe forthwith to mail to such elector a blank officialballot and ballot envelope, * * Y,"
The words "such elector" in Subdivisions 3 and 4 refer to an elector described in Subdivision 1, that is, an elector who is absent from the county of his residenceon the day of holding the election or an elector who because of sickness or physical disability cannot appear at the poll place in the electionprecinct of his residence on the day of holding the election.Unless a person comes within one of these classes,he is not entitled to vote absentee. Ifhe does come within one of these classes,he may vote absentee by compliancewith either themethod provided in Subdivision 3 (personalappearanceat the clerk's office) or themethod provided in Subdivision4 (bymail). Attorney General'sOpinion o-2298 (1940)held that a person applying for an absentee ballot on the ground of illness or physical disabilitycould vote by eithermethod.

Subdivision 1 has been construed to permit a voter who is present in the county dllringthe period of absentee voting, but who expects to be absent from the county on election day, to vote absenteeunder the provision allowing absentee voting by a person who is absent from the county on the day of holding the election.Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4 (1939);Eason v. Robertson, 288 S.W.2d 269 (Tex.Civ.App.1956, error dism.). These caseshold, further, that the fact that the absentee voter is not actually absent from the county on election day will not make the vote illegal.
It is our opi.nion that, an elector such as you have described has his choice of voting by personal appearance or by mail. Subdivision4 expresslyprovides that upon receipt of an applicationby mail it shallbe the clerk's duty to mail the elector an officialballot. Accsrdingiy, your question is answered in the affirmative.Attorney General's opinion appearing inVolume 382,p. 669 is overruled.
SUMMARY
An electorwho iswithin the county ofhis residence during the period for absentee voting, but who expects to be absent on election day and applies for an absenteeballot on that ground, may vote absentee eitherby personal appearance at the clerk's office or by mail, at his choice.--. .

Hon. Ted Butler, page 4 (WW-474)

Upon receipt of an applicationby ~2.1 in compliancewith Subdivision4 sf Rrti:le 5.05, Vernon's Texas Election Code, it is the duty of the county clerk to mail a ballot to the elector.
Yours very truly,
WILL WILSON Attorney General of Texas

MKW:bh
APPROVED:
OPINION COMMITTEE Geo. P. Blackburn, Chairman

James H. Rogers F.C. Jack Goodman J.C. Davis, Jr.

REVIEWED FCR THE ATTORNEY GE:XETWL BY: W.V, Geppert