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        Honorable L. D. Hartwell
        County Attorney
        Hunt County
        Greenville, Texaa
        Dear Sir:                        Opinion No. O-2549
                                         Re: Authority of an election
                                              judge to cast out ballot
                                              of absentee voter.
                   This will acknowledge receipt of your letter of
        July 24, requesting an opinion of this department, in which
        you crGe provisions from Article 2956, Revised Civil Statutes
        of Texas, and state ae follows:
                   "Under the above law I am asking and re-
            questing this department to answer the following
            question.
                   'IHasthe election judge the authority to
            cast out and hold for naught the abaentce vot-
            ing under thia article. One of the election
            judges says he is going to throw out all of the
            absentee voting of a certain box. I have given
            my opinion to the effect that no election judge
            has the authority or right to cast out absentee
            vote of any elector provided he has complied
            with this law, but I want to get a ruling from
            your department."

                    Opinion No..O-2298, previously issued by this de-
        partment, interprets Article 2956 ae regards ita application
        in the actual  preparation and casting of an absentee ballot.
        We attach for your perusal a copy of this opinion, which we
        feel will Serve to establish the conception of this depart-
        ment as to the application of the article in question.
                   Beyond thia, and in connection with the duties of
        the county clerk and of the election judge, when an absentee
        ballot has been received, we refer to subdivisions 5, 6, and
        10 of Article 2956.
                    Subdivision 5 reads as follows:
                   "Upon receipt of any such ballot sealed in
            its ballot envelope duly endorsed, the clerk shall
Hon. L. D. Hartwell,   page 2   (o-2549)

    keep the same unopened until the second day
    prior to ouch election, and shall then en-
    close same together with the elector's appli-
    catioa and accompanying papers, in a larger or
    carrier envelope which shall be ascurely seal-
    ed atldendorsed with the name and official
    title of such clerk, and the words 'this envc-
    lope contains an absentee ballot, and must be
    opened only at the polls on election day,'
    and the clerk shall forthwith mail aamc, or
    deliver it in person to the presiding judge of
    electioa, or to any aseistasltjudge of election,
    in eaid precinct.
           "And ballota mailed out b$ the county
    clerk within the legal time, but not received
    back by him on or before the third day prior
    to the election on the day of election, shall
    not be voted, but ehall remain in the custody
    of the couatg clerk during the thirty (30)
    day period provided in Subdivision 6.”
             Subdivision 6 reads in part as follows:
             "On the day of such election, and in the
     presence of the election officers, and the super-
     visors, if any, one of the judges of election
     shall, between the hours of 2:00 and 3:00
     o'clock open the carrier envelope only,~::announce
     the elector's name and compare the signature upon
     the application with the signature upon the affi-
     davit on the ballot envelope. In ca8e the elec-
     tion board finds the affidavita duly executed, th&
     the signatures  correepond, that the applicant is
     a duly qualified elector of the preclact, and
     that he has not voted in person at said election,
     they shall open the envelope containing the
     elector's ballot in such manner aa not to deface
     or destroy the affidavit thereon, take out the
     ballot therein contained without permitting came
     to be umfolbd   or examirredand having endorsed
     the ballot in like manner aa other ballots arc re-
     quired to be endorsed, deposit the same in the
     proper ballot box and enter the elector's name in
     the poll list the same as if he had been present
     and voted in person. If the ballot be challenged
     by any election officer, supervisor, party challcn-
     ger, or other pereon, the grounds of challenge shall
     be heard and decided according to law, Including
     the consideration of any affidavits aubmitted in
     support of or against such challenge. If the ballot
             !--                         h




Hon. L. D. Hartwoll, page 3 (O-2549)

    be admitted, the word8 'absentee voter' shall be set
    down opposite the elector's name oa the poll list.
    If the ballot be not admitted,  there shall be en-
    dorsed OR the back thereof the word 'rejected,' and
    all reject& ballots shall be eacloaed, aecurelg
    aealea, in a n lavelope oa which words 'rejected
    abseatae ballots' have been written, together with
    a statement of the precinct and the date of election,
    aignod by the judge8 aad clerks of election and re-
    turuea ia the name manner as provided for the return
    and preaervatioa of official ballots voted at such
    electioa."
           Subdivisioa 10 sets out the capacity in which county
clerka, their deputiea, sad election judges shall act with re-
gard to abaeatee ballots, and refera to Articlea a5 to 231,
iaclusive, of the Penal Code of Texaa, with regard to punish-
ments. Ia this regard we quote Article 217, Vernon'8 Penal Code:
            "Any judga of any election who shall refuse
    to receive the vote of aay qualified olector who,
    when his vote is objected to shows by his own
    oath that he is entitled to vote, or who ahall
    refuse to deliver ?n official ballot to one ea-
    titled to vote under thi law, or who ahall wil-
    fully refuse to receive a ballot after one en-
    titled to vote haa legally folded a&d returned
    MUllC, shall be.fined not to exceed five hundred
    dollara."
           From the wording of the article8 quoted, we Fe"
spectfully advise that in our opiaion no electioa judge haa
any authority to disregard or cast out any absentee ballot
cast according to the provialoas of the law, aad that if he
does so he is subject to fine in accordance with Article
217 of the penal code.
                                  Very truly yours
                              ATTORNEY GENERAL OF TEXAS
APPROVED ADG 2, 1940          By /s/ Walter R. Koch
                                 Walter R. Koch
h&;;;;s;;;;era                       Assistant
ATTORNEY GENERAL

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Emcl.                                                  Approved
                                                       Opiaiom
                                                       Committee
                                                      BY   -
                                                       Chairman
