              Tmm        Amrsnv~~    GENERAJ,
                            OF TEXAS
                            AUEPI-IN.      TEXAS        78711



                                     April     2, 1974



The Honorable     Mark      W.   White,,     Jr.            Opinion   No.   H-   267
Secretary   of State
Capitol Building                                            Re:   Absentee   voting
Austin,   Texas                                             rights of prisoners
                                                            confined  in county jails
Dear   Secretary   White:

        On January 16, 1974, the United States Supreme          Court issued its
decision    in O’Brien    v. Skinner,   42 U.S. L. W. 4151, holding invalid
laws of New York State governing          absentee voting because those laws
arbitrarily    discriminated    between prisoners    confined in the county of
their residence      and those whose residence     was in a different    county
and thus unconstitutionally       denied them equal protection     of the law
guaranteed     by the Fourteenth      Amendment.

       You have requested     our opinion concerning       the effect of that deci-
sion on the applicable   election   laws of Texas.      Parenthetically,     our
response   in no respect  applies    to those prisoners     who are disqualified
to vote by reason of previous     felony convictions.       Article   6, $ 1, Consti-
tution of Texas; Article    5.01, Election    Code, V. T. C. S.

         The applicable Texas       Law authorized   by Article       6, $ 2, of the Con-
stitution is found principally       in Article  5.05, Election        Code, V. T. C. S.

                       “Subdivision   1. Who may vote absentee.          Any
              qualified    voter of this state who expects       to be absent
              from the county of his residence          on the day of the
              election,    or who because of sickness,        physical   disa-
              bility,   or religious   belief cannot appear at the polling
              place in the election     precinct    of his residence   on the
              day of the election,     may nevertheless       cause his vote
              to be cast at any election      held in this state by com-
              pliance with the applicable        method herein provided




                                              po 1251
The Honorable   Mark    W.   White,   Jr.,    page   2   (H-267)




            for absentee    voting.   If a voter’s religious    belief
            prohibits   him from voting during any part of the
            time during which the polla are open on the day of
            the election,    he shall nevertheless    be entitled to
            vote absentee     even though the prohibition     does
            not operate    throughout   the entire time that the
            polls are open.

                     “Absentee      voting shall be conducted      by two
            methods:        (1) voting by personal     appearance     at the
            clerk’s    office,    and (2) voting by mail.     All voters
            coming within the foregoing          provisions    of this sub-
            division    may vote by personal        appearance    at the
            clerk’s    office if they are able to make such appear-
            ance within the period for absentee voting.              The
            following     persons,     and no other,    may vote by mail:

                     “(i) Qualified      voters who because of sickness
            or physical      disability,     or because of religious beliefs,
            cannot appear at the polling place on the day of the
            election     . . . .

                    “(ii) Qualified      voters    who, before   the beginning
            of the period for absentee           voting,   make application
            for an absentee        ballot on the ground of expec,ted ab-
            sence from the county of their residence              on election
            day, and who expect to be absent from the comtyduring
            the clerk’s      regular    office hours for the entire period
            of absentee       voting.     The voter must state in his appli-
            cation that he expects          to be absent from the county of
            his residence       on election     day and during the clerk’s
            regular     office houra for the entire period for absentee
            voting.      The application       shall be made not more than
            sixty days before the day of the election,            and may be
            mailed to the clerk or delivered             to him by the voter in
            person,      but the clerk shall not furnish a ballot to the
            voter by any method other than by mailing               it to him.




                                      p.     1252
.



    The Honorable     Mark    W.   White,    Jr.,   page   3    (H-267)




                  Applications     made under this paragraph          may be
                  mailed either from within or withoutthe county
                  of the voter’s    residence,      but in every case the
                  ballot must be mailed to the voter at an address
                  outside the county.        The ballot shall not be count-
                  ed unless the carrier       envelope    in which the ballot
                  ia returned    to the clerk is postmarked,from          a
                  point outside the county and the affidavit          on the
                  carrier    envelope    is certified   by an officer   other
                  than an officer     of the county of the voter’s      residence.

             .             “(iii)    Qualified    voters    who, after the beginning
                  of the period f.or absentee             voting,   apply for an absen-
                  tee ballot on the groundof expected                absence from the
                  county and who are absent from such county at the
                  time of rpplyrng for an absentee                ballot.and    expect to
                  be abaent from such county during the clerk’s                     regu-
                  lar office hours for the remainder                 of the period for
                  absentee        voting.    . . .’ The clerk shall not mail a
                  ballot to any such voter unless the envelope                   in which
                  the application         received     ispostmarked        from a point
                  outside the county, and the ballot must be mailed to
                  the voter at an address             outside the county.        The ballot
                  shall~not be counted unless the envelope                   in which the
                  application        ie received     and the carrier       envelope    in
                  which the ballot is returned              to the clerk are each
                  postmarked          from a point,outside        the county and the
                  affidavit      on the carrier       envelope    is ce,rtified   by an
                  officer     other than an officer          of the county of the voter’s
                  residence.         . . . ” (emphaeis          added)

            The New York statute considered          in O’Brien     wan limited    in part, to
    those who, “because      of illness    or physical   disability”   could not appear per-
    sonally to vote.     The lower    New York courts construed          “physical    disability”
    to include inability   to go to the polls because of confinement.            However,       the
    New York Court of Appeals         rejected    the argument     and held that those lodged
    in county.jails  were not entitled      to vote absentee.




                                               ps 1253
.




    The Honorable      Mark    W.    White,   Jr.,      page 4     (H-267)




          Recognizing   that the construction   given the statutes by the lower
    courts “may well have been a reasonable        interpretation, ” the Supreme
    Court felt itself bound by the construction     given by the Court of A,ppeals
    and concluded:

                   I’ We have no choice,    therefore,    but to hold that,
                   as construed,   the New York statute denies appel-
                   lants the equal protection    of the law guaranteed      by
                   the Fourteenth   Amendment.      ” (42 U.S. L. W. at 4153)

            The Texas statutes provide         for absentee     voting by a person phyei-
    tally within the county of his residence           on election     day only, as set out
    in Subdivision     l(i), supra,    when,   because   of  sickness     or physical     dia-
    ability or religious     beliefs   he cannot appear at the polling place on elec-
    tion day.     Texas courts have avoided giving a statute an interpretation
    that is clearly     unconstitutional,    if some other reasonable          interpretation
    is possible.      State v. City of Austin,      331 S. W. 2d 737 (Tex.         1960);
    Trustees     of Independent     School District    v. Johnson County Democratic
    Executive     Committee,      52 S. W. 2d 71 (Tex.1932);        State v. Shoppers       World,
    &..    380 S. W. 2d 107 (Tex. 1964).          We  do  not   believe   here,   however,
    that the statute can be construed         in such a manner as to avoid a conclu-
    sion of unconstitutionality.

           Our statute goes further     than the New York statute and provides
    in Subdivision    2 of Article  5.05 of the Election    Code, V. T. C. S., that,
    if the ground of voting absentee     is physical   disability,    the application     for
    the absentee    ballot must be accompanied       by a certificate     of a physician,
    a chiropractor     or an accredited   Christian   Science practitioner       certifying
    to the physical    disability.   We are therefore    precluded     from interpreting
    Article     5.05 to include     confinement        within   the framework   of “physical
    disability.    ”

            We are of the opinion,    therefore,     that Article     5.05 does not per-
    mit absentee     voting by an otherwise     qualified    voter,    who is confined in
    the county jail of the county of his residence          and, to that extent,    is uncon-
    stitutional   under the holding of the O’Brien        case.     In other words,   those
    portions    of Article  5.05 which prevent     these voters from voting cannot be given
    that effect,       and theylike  others in the jails,       must be given the oppor-
    tunity to cast their votes.




                                                  p.   1254
.   .




        The Honorable    Mark   W.   White,    Jr.,   page    5     (H-267)




                                         SUMMARY

                            The provisions   of Article   5.05 of the Election
                     Code preventing    a qualified  voter confined in the county
                     jail of the county of his residence     from voting are
                     unconstitutional.

                                                 Very     truly    yours,




                                              VAttorney           General     of Texas

        APPROKED:




        Opinion   Committee




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