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                                E                   EYGENERAL




                                                   April   3, 1962

           Honorable  Connell Ashley                        Opinion   NO. w-1296
           District  Attorney
           112th Judicial   District                        Re:   Whether a county clerk
           Fort Stockton,   Texas                                 can establish     a sub-
                                                                  office   in a town other
                                                                  than the county seat
                                                                  for the purpose of
                                                                  accomodating    voters   in
           Dear Mr. Ashley:                                       absentee   voting.

                In your     letter   you have asked        the following    question:

                     “Pecos County is a large county,            and
                there Is a town located           In Pecos County
                called     Iraan,   which is 65 miles from the
                county seat of Fort Stockton.             The County
                Clerk desires       to go to Iraan once each
                week during the time of absentee            balloting
                to accept      absentee   ballots    and to distribute
                same.      The law now provides       that absentee
                balloting      can be permitted      in the office
                of the County Clerk and the Clerk has asked
                me whether if he personally           goes to this
                town located       within the boundaries       of this
                county,     he could establish       a sub-station     or
                sub-office      so as to be allowed       to accomodate
                the voters      in that area.”

                  Article    5.05, Texas Election Code, provides  for absentee
           voting.      Subdivision  1 of Art. 5.05, reads in part as follows:
                    11. .   .

                   “Absentee   voting      shall be conducted   by two
                methods  *
                the cleik, ~l~f;;~~a~g       personal    appearance     at
                                              (2) voting by mail.        All
                electors  coming wiihin     the foregoing     provisions
                of this subdivision     may vote by personal       appearance
                at the clerk’s   office   if they are able to make
                such appearance    within   the period    for absentee
                voting.  . . .” (Emphasis added. )

                Subsections   (a)    and (b) under Subdivision   1 of Art. 5.05,
           Texas Election   Code,    prescribes  how voters may vote by mail In
           the case of sickness      or physical  disability,  and by reason of
Honorable      Connell     Ashley,   Page 2     Opinion   NO. m-1296



expected    absence from the county on election    day, when the
application     is postmarked from a point outside   the county. The
concluding    sentence   of Subdivision 1 of Art. 5.05, reads as
follows:

          “Electors      not coming within    (a) or (b)
      above who expect to be absent from the county
      of their residence        on the day of the election
      may vote only by personal        appearance   at the
      clerk’s    office.“(Fnphasls     added.)

     Subdivision    3 of Art.        5.05, Texas Election     Code,   provides
in part as follows:

           “At any time not more than twenty (20) days,
      nor less than three (3) days, prior           to the date
      of the election,      an elector    who is eligible     to
      vote absentee     may do so by making his personal
      appearance    before   the county clerk of the county
      of his residence      at the office    of the clerk     and
      delivering    to such clerk his application         afore-
      said,   whereupon he shall be entitled         to receive
      from the clerk     the following     absentee   voting
      supplies :

            “(a)   . . .

            “(b)   . . .

            “(c)   . . .

          “The elector   shall then and there, in the office
      of the clerk,    mark the ballot in the presence   of the
      clerk.  sign his name on the back of the ballot      stub,
      detach the stub from the ballot,    fold the ballot     and
      place it in the snvelo e marked ‘Ballot     Envelope’ and
      seal the same. . . .‘I PEmphasis added.)

       Thus it is very clear     from the statute ‘that absentee     voting
will be conducted     in the office    of the clerk,    except where absentee
voting   is permitted   by mail.     Art. 1605, V.C.S.,     reads in part as
follows:

         “The         Clerks           of     the County Courts
      . . . shali keep their offices           at the county seats
      of their respective    counties;        . . .I’

      Article    1605, V.C.S.,  goes on to authorize       the establishment
of a branch office     in counties   within   certain    population       brackets,
counties    containing   cities  over a certain    population,      etc.,     when
authorized    by order of the Commissioners       Court.    But this branch
    -..
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          Honorable     Connell    Ashley,           Page 3        ~Opinion No. W-1296



          office    is for the Assessor          and Collector       of Taxes.      Art. 1605a,
          V.C.S.,     authorizes     a   county   having     a  city  other than the county
          seat,    such other city having a population                of 20,000 or over,         to
          establish      a branch office        in such other city.          However, among
          the offices      which are prohibited           by Art. 1605a from being located
          in the branch office           is the office       of County Clerk.         Art. 1605a-1,
          V.C.S.,     is another statute         authorizing       a branch'office       building,
          but it doesnot         specifically        state what offices        shall be located
          therein.       Art, 1605a-2,       V.C.S.,     authorizes     an office     building
          and/or    jail    in certain      counties,     but the offices       to be maintained
          therein     are a branch of the tax assessor-collector's                    office,    a
          jail,    and a justice       court.    Art. 1605a-3,       V. C.S.,     authorizes     in
          certain     counties    the erection        of a building      to serve as branch
          offices    and library       of the county,        justice   of the peace,        and city
          hall for the town In which It is located.

                 Other than the statutes      named above,we find no authority
          for a branch office      in towns and cities       which are not the county
          seat.      In none of the statutes    do we find specific       authority   to
          locate    a branch of the County Clerk's        office   In another city or
          town which is not the county seat.           In most of the statutes,       a
          branch county clerk's      office   would be prohibited      by not being
          specifically     named, when the statute      is specific    In which offices
          are to be allowed     in the sub-station.         In one statute    the   County
          Clerk is specifically      prohibited    from having an office       in the
          sub-station.

                 But even if there could be a county clerk's       branch office
          located   at a town other than the county seat,      we do not find any
          statute   with population  brackets  which would fit Pecos Counts.
          According    to the Texas Almanac for 1961-1962,     the 1960 Federal
          Census for Pecos County showed,a     vovulation   for Pecos Countv of
          11,957,   that of the county seat,   Port Stockton,     6373, Iraan,
          1,255,   and all towns in the county (except    the county seat) with
          less than 2,000 each.     We have compared these statistics       with the
          statutes   listed  above, and find none of the exceptions      applicable
          to Pecos County.

                 We hold,  therefore,    that the County Clerk of Pecos County
          has but one office,      that being his office     at the county seat in
          Fort Stockton;    that there is no authority       for him to open a branch
          office   or substation     anywhere In the county;     and that absentee
          voting   when conducted     by personal  appearance    of the voter before
          the clerk and not by mall, must be done only at the county clerk's
          office   at the county seat.       We do feel  that the County Clerk of
          Pecos County is to be commended for offering           to perform this
          extra service    to the voters     in his county,    however,   it is not lega
          for him so to do.
Honorable   Connell   Ahsley,      Page 4      Opinion    No. W-1296



                                SUMMARY

         The County Clerk of Pecos County is not
     authorized      to open a branch office   or sub-
     station    In the county to accomodate     absentee
     voters.     Art. 1605, V.C.S.     Absentee voting
     conducted     by personal  appearance   of the voter
     before   the clerk,    must be done at the county
     clerk's    office   at the county seat.    Art. 5.05,
     Texas Election      Code.

                                    Yours     very   truly,

                                     WILL WILSON
                                     Attorney General         of   Texas




                                            Riley Eugene Fletcher
                                            Assistant

REF:bjh

APPROVED:

OPINION COMMITTEE:
W. V. Geppert, Chairman

Elmer McVey
Morgan Nesbitt
Gordon Zuber
Pat Bailey

REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
