                    HE    ATTOMNICY                GENERAL
                                OF      TEXAS

                               Auwrm      ~~.TEXAS
PRICE  DANIEL
ATTORNEYGENERAL
                                April    30, 1952

        Hon. Boyd Barjenbruch            Opinion     No. V-1449.
        County Attorney
        Montague County                  Re:     Validity  of the action
        Montague,  Texas                         of the commissioners’
                                                 court in designating    an
                                                 “election  box” for ab-
        Dear Sir:                                sentee voting.
                     In your request      for an opinion     of this of-
        fice concerning     the operation       of certain   provisions      of
        the Texas Election      Code, which became effective           on
        January    1, 1952, you state       that the Commissioners’        Court
        of Montague County has created           25 election    precincts,
        and has also created       Election     Box No. 26 to meet the re-
        quirements    of Subdivision      6 of Section 37 of the Elec-
        tion Code, which pertains         to the casting     of absentee
        ballots.
                    Section     12 of the Election      Code (Art. 2.04!
        Vernon’s 4ection        Code) authorizes    the commissioners
        court of each county to divide          the county into conven-
        ient election     precincts,    but limits    the court’s  action
        in the following      respect:
                     1 ’. .   l No election      precinct    shall    be
              formed     out of two (2) or       more justice      pre-
              cincts     or commissioners       precincts,    nor out
              of the     parts  of two (2)      or more justice       pre-
              cincts     or commissioners       precincts.    . . .I’
                   Under Section      37 of the Election         Code (Art.
        5.05, Vernon’s Election       Code), the method of casting
        absentee  ballots   has been changed.          Formerly,     under Sub-
        division  6 of Article     2956, V.C.S.,       the county clerk for-
        warded the absentee     ballots      voted by electors       of each
        election  precinct   to the presiding        judge of that precinct,
        and one of the election       judges cast the ballots           by plac-
        ing them in the regular       voting     box of the precinct       in the
        same manner as voters      appearing      at the polls      clst t!leir
        ballots.   The absentee      ballots     were then counted along
        with all other ballots.         The procedure      for casting     and
        counting  absentee   ballots     under the present        statute    is
Hon. Boyd Bsrjenbruch,           page 2       (v-1443)


described   in Subdivision 6 of Section    37 for CountY-
wide elections   and in Subdivision   9 for elections
which are less than county-wide.      Subdivision    6 reads
as follows:
              “The ballots         cast in the office            of the
      county clerk        shall be deposited             when voted
      In a ballot        box locked with two (2) locks
      the keys of one of which shall                    be kept dur-
      ing the period of absentee                 voting     by the
      sheriff     and the keys of the other by the
      county clerk.          At 1:OO’ p.m. on the day of
      the election        the ballots         and the ballot          en-
      velopes     which have been received                 by mail
      shall be delivered            by the county clerk to a
      special     canvassing        board of three           (3) or
      more members named by the authority                       which
      is authorized         by law to name the presiding
      judges of that election;                this special         elec-
      tion board shall           open the ballot           boxes and
      the carrier        envelopes,        announce the elec-
      tor’s     name and compare the signlture,upon
      the application          with the signature             upon the
      affidavit       on the ballot         envelope.         In case
      the election        board finds the affidavits
      duly executed,          that the slgn&ures              corre-
      spond, that the applicant                 Is a duly quall-
      fied elector        of the precinct,            and that he
      has not voted in person at said election,
      they shall       open the envelope             containing
      the elector’s         ballot      in such manner as not
      to deface or destroy             the affldxvit          thereon,
      take out the ballot             therein      contained       with-
      out permitting          same to be unfolded             or exam-
      ined and having endorsed                the ballot        in
      like manner as other ballots                   are r~equired 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.               . . . This
       special     election      board shall         cast these ab-
       sentee votes and then shall                 open the ballot
      box and proceed to count and make out re-
       turns    of all ballots          cast absentee          In the
       same way as is done at a regular                    polling
       place.      This special         canvassing        board shall
      possess      the same qualifications,                be paid the
       same wage, and be subject                to the same laws
       and penalties        as regular         election      judges.
       . . .”
Hon. Boyd .13arjcnbruch,         page     3    (V-1449)
                           9

              The questions       which       you present    are    the   fol-
lowing :
              “1.  IS Section        37    Subdivision   6,        in
       conflict   with Section          13 of the Election
       Code?
              “2 . IS the voting     box No. 26 which
       is created   for absentee     voting   by the Com-
       missioners’   Court of Montague County,
       Texas, a valid     voting  box under Section     12
       and Section    37, Subdivision      6 of the Elec-
       tion Code?”
             The ‘substance    of the reasoning       in the brief
accompanying    your request       Is that Election     Box No. 26
is in fact the absentee        precinct     of Montague County.
You point out that absentee          votes from all precincts
will be cast in this box and returns             made from such box
as are made from the other 25 boxes, and it will be pre-
sided over by three or more persons who must meet the
requirements    of election      judges and are subject        to the
same law and penalties       as regular      election   judges.       If
the designation      of an election      box for absentee      voting
was tantamount     to the creation       of an election     precinct,
then the boundaries       of the precinct       are coextensive      with
the boundaries     of Montague County and embrace four jus-
tice precincts     and four commissioners’,precincts,            con-
trary   to the provisions      of Section     12.
               We have not been furnished            with a copy of the
court’s    order,    but it would appear from the information
you have furnished         us that the term “election              box” in
the designation       of an Election        Box No. 26 was being used
as a synonym for llpolling          place .‘I We do not think              the
commissioners’       court was required         to take any action
whatever     in regard     to defining      an election        precinct      or a
polling    place for absentee         voting.       The election        pre-
cincts    which the court is authorized               to create      under Aec-
tion 12 are those which are to be observed                     by voters      who
appear at the polls          on election      day, and the purpose             of
dividing     the county into precincts            is to fix the bounda-
ries    of the territory       which each polling           place is to
serve.     hut Section      37 of the Election           Code unequivocally
provides     for the casting       of absentee        ballots     at the
county clerk’s       office    in county-wide         elections      and at the
regular    polling    place in each election             precinct     where the
election     is less    than county-wide.           It was therefore           un-
necessary      for the commlssloners~          court to designate            the
Hon. Boyd Barjenbruch,              page   4    (V-1449)


polling  place for casting     absentee    ballots     in county-
wide elections   or the territory      which this Polling
place was to serve,    since the statute        Itself   has al-
ready done SO.
               While we do not think the commissioners1
court was authorized             to define       an “election        precinct
for absentee        votlng,l’      if this was the effect              of its
order it was not in conflict                  with the absentee           voting
statute,      as it did not attempt              to designate        a differ-
ent polling        place from          that fixed by statute.              Sec-
tion 37 does not In terms constitute                      the entire       county
the “election         precinct       for absentee       voting”      in county-
wide elections,          but this view of the effect                 of its pro-
visions     Is not an unreasonable               one.     The prohibit       Ion
in Section        12 against       the formation        of an election          pre-
cinct    out of two or more justice                 or commissioners’
precincts       is not based upon any constitutional                      provi-
sion limiting         the method of forming election                   precincts.
Consequently          we think it may well be within                   the power
of the Legis i ature to prescribe                  a special      election
precinct      for absentee         voting purposes.            However, it is
unnecessary        for us to determine             in this opinion whether
that is the effect            of the absentee          voting     provisions.
Since the Legislature              itself     has provided        for the cast-
ing of absentee          ballots       in the clerk’s        office,      we’have
only to consider          whether        this provision        can stand       along-
side the general          provisions         of the Election         Code regu-
lating    the formation          of election        precincts,       the desig-
nation    of polling        places,       and the casting         of ballots.
              It is a’firmly       established     principle      of stat-
utory construction        that where an enactment           contains      a
specific     provision    which is at variance         with a general
provision     in the same act, the specific            provision       is
treated     as an exception      to the general       and controls        the
subject     matter which comes within          its terms.       Lufkin v.
E;ttv of Galveston        63 Tex. 437 (1885);C t of A sti
     Cahill     99 Texl 172, 88 S.W. 542 (190j+$Tfi+.
c”itv of Biownwood        176 S.W.2d 344 (Tex. Civ. A,J~. 19 3,
error ref .) . It hollows          that the specific        provisions
of the Election        Code relating       to absentee    voting     should
be treated      as exceptions      to other provisions         regulating
balloting     generally.
             We have pointed   out that in our opinion     the
term “election    box” In the court order was used in the
sense of “polling    place.”    It seems likely    that the in-
tent of this portion     of the order was merely to author-
ize the supplying    of the ballot    boxes required    in
.   1




        Hon. Boyd Bar jenbruch,         page   5    (V-1449)


        absentee      voting    and to provide       the manner of their
        identification.          Section    70 of the rlection          code
         (Art. 7.05, Vernon’s Blection             Code) provides        for the
        marking of ballot         boxes in the election           precincts
        laid out by the commissloners~               court.     Section     37
        does not make specific           provision       for the marking of
        ballot     boxes used at the county clerk’s               office    in ab-
        sentee voting.          The purpose     of the provision         for the
        marking of ballot         boxes is to Identify          the source of
        the ballots       which they contain,          and so long as the
        designation        of “Election    Box No. 26" is understood              as
        identifying       boxes containing       absentee      ballots     cast in
        the office       of the County clerk         of Montague County, we
        do not believe        this description        would be contrary          to
        any provision        of the election       law.     This opinion       is
        not to be understood           as holding      that the designation
        used by the commissioners’             court for the absentee
        polling      place must be followed.            However, if that means
        of identification         is used, we are of the opinion               that
        it would be a sufficient            compliance      with the election
        laws.


                      In absentee    voting,      the provisions       of
               Section   37 of the Election          Code (Art.     5.05,
               Vernon’s   Election     Code) relating        to the
               method of casting       absentee      ballots   control
               over general     provisions      in other sections
               of the Uection       Code.
        APPROVED:                                         Yours    very     truly,
        J. C. Davis, Jr.                                     PRICE i):U IEL
        County tiffairs  Division                         Attorney   General
        E. Jacobson
        Reviewing   Assistant                             By 2b.y       K&e
        Charles   D. Mathews                                  Mary K. Wall
        First   Assistant                                         assistant
        MKW:wb
