           THEAYTOEZNEYGENERAL

                          OFTEXAS




                             April   12,   1962


Honorable  Alvin E. Pape                   Opinion   No. NW-1307
County Attorney
Guadalune County Courthouse                Re:    Whether the City Clerk may
Seguin,- Texas                                    return absentee     voters'
                                                  poll tax receipts,      now
                                                  being held by the Clerk
                                                  under Subdivision      6 of Art.
                                                  5.05,   Texas Election      Code
                                                  for 30 days after      such
                                                  voters   have voted absentee
                                                  in a city election,       so as
                                                  to enable such voters        to
                                                  use the poll tax receipts
                                                  again to vote absentee         in
                                                  school   and primary elec-
                                                  tions,   occurring   within
                                                  less than 30 day,s of the
Dear Mr. Pape:                                    preceding    city election.

       In your   letter   you stated:

               "The city election     in Seguin will
          be held on April 3.        The City Clerk
          is now retaining      the poll ‘taxes of
          persons   seeking to cast an absentee
          ballot   as required     by Article    5.05,
          Subdivision    2, of the Election        Code
          of the State of Texas.          Subdivision
          6 provides    that the Clerk shall re-
          turn the poll tax receipts          and the
          exemption certificates        to the absen-
          tee voters    after   the expiration      of
          30 days unless      a contest    has been
          filed.

               “Many voters   have cast an absen-
           tee ballot   in the City election     and
           have requested    that their   poll tax
           receipts   be returned   to them so that
           if necessary   they can vote absentee
           in the school    and primary elections
           which will follow     shortly.    Is the
           City Clerk required     to hold such poll
           tax for 30 days as provided       by the
           Code or may she return them to the
           voter at an earlier     date?   If she
                                                                                         .




Honorable    Alvin   E. Pape,        Page 2                       Opinion     No. WW-1307



             can return such poll tax receipts
             at a date earlier     than that pro-
             vided in the Code, what is the
             earliest   date after   the election
             she can release    such poll tax re-
             ceipts   to the voters?”

          Subdivision        2 of   Article   5.05,   Texas   Election      Code reads
in part    as follows:

                  “An elector    desiring     to vote
             absentee    shall make written       sworn
             application      for an official     ballot
             to the county clerk        of the county
             of his residence,       . .
             cation    shall be
             poll   tax receipt    or exemption certi-
             ficate    of the elector,     or, in lieu
             thereof,    his affidavit     in writing
             that same has been lost or mis-
             z.       . . .I’ L Emphasis added1

          Subdivision        6 of   Article   5.05,   Texas   Election      Code reads
in part    as follows:
                 II. .   .

                 “The county clerk  shall return
             the poll tax receipts   and the exemp-
             tlon certificates   to the absentee
             voters  at the end of thirty    (30) days
             unless  a contest  has been filed.”

        In your letter      you refer   to the “City Clerk”.   This is the
same official    referred     to in the Election   Code as the “City Secre-
tary.”    Art. 7.13,    Election   Code, reads in part as follows:

                 “The expense of all city and town
             elections    shall be paid by the munici-
             nalitv    in which same are held.      In all
             such elections,      . .      the city    secre-
             tary,    . . . shall do’a;d    perform each
             act which in other elections        are re-
             quired to be done and erformed.          ,.
             plphasi;h;       ;zMy    cl&k    . . . .‘I


          The clerk’s    authority  to mall an absentee  ballot    rests  on
the   clerk’s   possession    of two documents: (1) a sworn application
for   absentee   ballot,   and (2) any one of the following     instruments:
c   .



        Honorable    Alvin        E. Pape,    Page 3                       Opinion     No. WW-1307



        (a) poll tax receipt,      (b) exemption certificate,      or (c) affidavit
        in writing    that same has been lost or mislaid.        Seguin is a city
        with a population      in excess of 10,000 Inhabitants      according   to
        the 1960 Federal Census,       so every exempt voter who voted in the
        city election     in Seguln will be required     to possess    an exemption
        certificate,     and we need not consider    the situation     of an exempt
        voter who might live outside       a city of 10,000 inhabitants,       and
        who possesses     neither  a poll tax receipt    nor an exemption certi-
        ficate.

                Why does Subdivision     6 of Article   5.05, Texas Election
        Code require     the clerk to hold the poll tax receipts      and exemp-
        tion certificates      for 30 days?  Art. 9.03,   Texas Election   Code
        reads in part as follows:

                            “Any person intending     to contest
                        the election    of any one holding     a
                        certificate   for any office     mentioned
                        in this law, shall,     within thirty     (30)
                        days after   the return day of election,
                        give him a notice    thereof    in writing.    . .I’

                   Subdivision    6 of Article      5.05, Texas Election      Code, pro-
        vides that the poll tax receipts             and exempzion certificates
        should be returned        at the end of 30 days,                 unless    a con-
        test has been filed.”          If any of the absentee’vbtes          should be
        contested      in the election     contest,    it is obvious     that the ab-
        sentee     voter’s   poll tax receipt       or exemption certificate        ought
        to be available        for evidence    in court.       We hold,  therefore,     that
        the city clerk may not return the poll tax receipts                  or exemption
        certificates       to the absentee     voters    until   the expiration     of
        thirty     (30) days after     the return day of the election.

                   This still     leaves   the question  of how these absentee       voters
        are going to participate           in another election,    which follows     so
        closely     on the heels of the city election          as to make it impossi-
        ble for the clerk to return their poll tax receipts               and exemption
        certificates      in time to use them in the subsequent         election.       This
        problem would exist          whether the voter intended     to vote in the
        second election        in person at the polling      place on election      day,
        or by absentee        ballot   prior  to the second election.      If his poll
        tax receipt     or exemption certificate        had not been returned       by the
        clerk at the time he went to vote in the second election,                 and if
        it were mandatory that he have such poll tax receipt               or exemption
        certificate     in his possession       before  he could participate      in the
        second election,        he would be disenfranchised.

                 Art.     5.02,     Texas    Election   Code,   provides    in part:
Honorable    Alvin    E. Pape,   Page 4                      Opinion   No. WW-1307


                 II
                        If such voter shall have
             lost’or  misplaced   said tax receipt
             he or she shall    beg entitled    to vot&
             upon making and leaving       with the judge
             of the election    an affidavit      that such
             tax was paid by him or her, or by his
             wife or bye her husband during the time
             allowed  by law preceding       such election
             at which he or she offers        to vote,   and
             that said receipt    has been l,ost, mis-
               laced, or left   at home. . . .‘I
                Emphasis added1

           Attorney   General’s    Opinion No. WW-594 (1959) holds that
the above rule also applies           to exemption certificates.          Subdi-
vision     2 of Art. 5.05, supra, provides          for affidavits     of lost
poll tax receipts        or exemption certificates.          In the strict
literal     sense of the word, the poll tax receipt            or exemption
certificate      In the hands of the clerk,         who is holding     it pur-
suant to Subdivision        6 of Art. 5.05, supra,        is not “lost.”        Nor
is it “mislaid”       in the sense that the owner of the same has put
it someplace       and momentarily      forgotten   where it is.     But is is
obvious     that the voter,     in these circumstances,        is entitled      to
make affidavit       that he has mislaid        such tax receipt    or certifi-
cate.      To hold otherwise,       would reach the absurd result         that the
voter who voted absentee          in one election      was disenfranchise~d      to
vote in a subsequent        election     held~ within 30 days of the first
election,      simply because he had no way to regain possession                of
his poll tax receipt        or exemption certificate.          In 39 Tex.Jur.,
Statutes,      Sec. 95, page 179, the rule is stated:


                 11
                  . .  . statutes   are frequently
             given an interpretation       at variance
             with their   literal   terms.   . . .

                         Thus it has been decided
             that’words    or clauses     should not be
             given their     literal   meaning when such
             an interpretation       would thwart the
             plain purpose of the Legislature,        or
             would lead to palpable        absurdity, . . .,
             injustice.    . . , if such construction
             can reasonably       be avoided.”

           We hold,   therefore,   that a voter who has voted absentee
in an election,       and by reason of Subdivision    2, Art. 5.05, Texas
Election     Code, has delivered     his poll tax receipt  or exemption
certificate      together    with his application  to the county clerk
Honorable    Alvin   E. Pape,   Page 5                      Opinion    No. WW-1307



or ci";y clerk in srder to receive       lhis absentee     ballot,  and whose
poll tax receipt    or exemption certificate         has not been returned
to such absentee    voter,   because it is being held by such clerk
for 30 days after    such election    pursuant to Subdivision         6 of
Art. 5.05, may vote at any subsequent          election    held during the
period while his tax receipt       or certificate       is being so held bye
such clerk   by, making affidavit    of "lost"     or "mislaid"    poll tax
receipt   or exemption certificate     as prescribed       by Art. 5.02, or
Subdivision   2 of Art, 5.05, Texas Election          Code.

                                 SUMMARY

                City   Clerk,   holding    an absentee  voter's     poll
         tax receipt      or exemption certificate,       delivered      or
         mailed to     him by, a voter in a city election         in order
         to obtain     an absentee     ballot,  as required     bye Subdi-
         vision    2,  Art. 5.05, Texas Election       Code, must hold
         duch poll     tax receipt     or exemption certificate        for
         thirty, (30) days af.:er the return         day of the elec-
         tion,    before   returning;   the same to the voter.         Sub-
         division     6, Art. 5.05, Texas Election        Code.

                 A voter,    whose poll tax receipt      or exemption
         certificate      is in the hands of the clerk,         as a
         result     of having made application      for an absentee
         ballot,     may vote in any subsequent       election    during
         t;ke period     while the clerk retains      such tax receipt
         or certificate,       by making affidavit     of "lost"     or
         "mislali"     pail tax receipt     or exemption certificate,
         s.s provi&d      by, Ar;r;*5.02,  or Subdivision      2 of Art.
         5.05,    Texas Election     Code,

                                               Yours   very~ truly,

                                               WILL WILSON
                                               Attorney General       of   Texas


                                               By 8%        +N+--
                                                  Riley Eugene Fletcher
                                                  Assistant
REF/jp
APPROVED:
OPINION SC~K~.iTTEE:
Wo TJe r”epper3, Chairman
Elmer McVey
J. c. Davis
W. E. Allen                       ,$ZEWED FCR THE ATTORNEYGENERAL
Leon ,Pes'3k                      _, : Houghton Brownlee, Jr.
