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 elector makes application for 

an official ballot to the county clerk in writing 

and signed by the elector. Such application is 

accompanied 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. 

"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 appearance before 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 election day, 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 only with 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's Office, Volume 358, p, 241 (1934) 

and Volume 372, p. 643 (1936) held that either method wa8 

available. A third opinion appearing in Volume 382, p. 669 

(1938) held that a voter such as you have described should 

vote absentee only by personal appearance at 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 electors who are entitled to vote absentee. It 

reads as follows: 

"Subdivision 1. Any qualified elector of 

this State who is absent from the county of his 

residence, or because of sickness or 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, cause his vote to 

be cast at such an election by compliance with 

one or other of the methods hereinafter provided 

for absentee voting." (Emphasis supplied.) 

Subdivision 2 requires the elector to make an application in writing, accompanied by his poll tax receipt or 

exemption certificate or, in lieu thereof, his affidavit that 

same has been lost or mislaid, and also requires a physician's 

certificate if the ground of application is sickness or physlcal disability. 

Subdivision 3 provides that "such elector making 

his personal appearance before the county clerk of the county 

of his residence and delivering to such clerk his application 

aforesaid," shall be entitled to receive an official ballot 

from the clerk. 

Subdivision 4 provides that 

' * * * such elector who makes written application 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: 
. . . . 

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

"The applluatioc shall be mailed to the 

county clerk of the elector's residence whose 

duty it shall be forthwith to mail to such 

elector a blank official ballot 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 residence on 

the day of holding the election or an elector who because of 

sickness or physical disability cannot appear at the poll 

place in the election precinct 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. If he 

does come within one of these classes, he may vote absentee 

by compliance with either the method provided in Subdivision 

3 (personal appearance at the clerk's office) or the method 

provided in Subdivision 4 (by mail). Attorney General's Opinion o-2298 (1940) held that a person applying for an absentee 

ballot on the ground of illness or physical disability could 

vote by either method. 

Subdivision 1 has been construed to permit a 

voter who is present in the county dllring the period of absentee voting, but who expects to be absent from the county on 

election day, to vote absentee under 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 cases hold, 

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. Subdivision 4 expressly provides that upon receipt 

of an application by mail it shall be the clerk's duty to mail 

the elector an official ballot. Accsrdingiy, your question is 

answered in the affirmative. Attorney General's opinion appearing in Volume 382, p. 669 is overruled. 

SUMMARY 

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 either by personal appearance 

at the clerk's office or by mail, at his choice. 
--. . 

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

Upon receipt of an application by ~2.1 in compliance with Subdivision 4 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