Honorable W. C. McClaln
District Attorney                     Opinion No. Q-2298
Conroe, Texas                         Re: Interpretation    of law
                                            regulating  absentee
Dear Sir:                                   voting, Article 2956j
                                            Revised Civil Statutes,
            This is in reply to your letter  of April 26, 1940,
requesting   the opinion of this Department interpreting    Article
2956, Vernon’s Annotated Civil Statutes,    dealing with absentee
voting.    Your request was prompted by an inquiry from the
County Clerk of Montgomery County and the following      questioni
are asked:
           “Question 11 Is it legal to send out a ballot
     or t6 permit a Notary Public to take out a ballot and
     application   and have the elector   slgn the application
     and vote the ballot not In the presence of the County
     Clerk, vhereas the law provides    that the ballot shall
     be returned by mail?
            “Question 2: In Section 2 a provision       is made
     that if the. application    is on account of sickness or.
     physical disability    a certificate    of a licensed physi-
     clan.‘ shall accompany it.     It seems to me it would be
     impossible    for a physSclan to determine 35 or 20 days
     ahead In many cases whether or not an elector would
     be able to attend the polls,       and I will ask you, where
     sickness Is the basis of the application,        if under
     that section an elector     would not have to make his ap-
     plication    and vote on the day of election,      there.being
     no time specified.
            “Question 3: Does not subdivision  3 have applica-
      tion only to electors  who are absent from the county of
      their residence?”
            Artlclti   2956 reads,   in part,   as follows:
            “Subdivision 1. Any qualified, elector  of thls
      State who 1s absent from the county of hls residence,
      or because of sickness or physical dlsablllty   can
      not appear at the poll place in the election   precinct
Honorable   W. C. McClaln,   Page 2



       of his residence,   on the day of holding any general,
       special,  or primary election,  may, nevertheless,  cause
       his vote to be cast at such an election    in the precinct
       of his residence by compliance with one or other of the
       methods hereinafter   provided for absentee voting.
             “Subdivision     2. Such elector     shall make application
      for an official      ballot    to the county clerk in writing
      signed by the elector,        or by a witness at the direction
      of said elector      in case of latter’s      inability    to make
      such written application         because of physical disability.
      Such application       shall be accpmpanied by the poll tax
      receipt   or exemption certificate         of the elector,    or, in
      lieu thereof,     his affidavit      in writing that same has
      been lost or mislaid.          If the ground of application       can
      be sickness or physical         disability   by reason of which
      the elector    cannot appear at the polling          place on election
      day, a certificate        of a duly licensed     physician certifying
      as to such sickness or physical dlsabllltg              shall accompany
      the application.              ,
              “Subdivision     3. At any time not more than twenty (20)
       days, nor less than three (3) days, prior to the date of
       such an election,       such elector    making his personal appear-
       ance before the county clerk of the county of his resi-
       dence at his office        and delivering     to such clerk his
       application     aforesaid,     shall be entitled     to receive,from
       said clerk one official         ballot which has been prepared
       in accordance with law for use in such election,              which
       ballot    is t-hen and there, In the office         of said clerk of
       said county, and In the presence of said clerk and Of no
       other person, except the vltness who is authorized to
       assist elector       in certain cases as hereafter        provided,
       to bejmarked by the elector,          or by sa,ld witness in case
       of. physical dlsabilltg        of elector,    so as to conceal the
       marklncr and same shall.         In the presence of the clerk,
       be dep&ted        ln[a ballot    envelope furnished by said cierk,
       vhlch envelope shall bear upon the face thereof the name,
       official    title    and post office     address of such county
       clerk,    and upon the other side a printed affidavit             in sub-
       stantially     the following     form, to be filled      out and signed
       by the elector;       provided,   however, that in case of the
       physical    disability     of elector    preventing him from fllllng
       out and signing such affidavit,            then the witness who assisted
       the elector      in marking his ballot       shall fill   out and slgn
       affidavit     for and in behalf of elector         and shall also sign
       his, wltness”.nsme        as prescribed     In the following    form:
Honorable     W. C. McClain,   Page 3


      State        of

      C,ounty of
               T             -,     do solemnly svear that I am a Resl-
      dent ‘0; Precinct No.                    in             -~~ I
                                                              l;ounr;y, ana
      am lawfully   entitled    to vote at’the election     to be held in
      said precinct    on the               day of
      that~ I am prevented from appearing at the polling          ilace in
      said Precinct on the da,te of such election
      ness).  (physical    dlsabllltg),     (or because
      County)                   (elector    to signify  one of foregoing
      reasons I that the eiclosed       ballot  expresses my wishes,
      independent of any d%ctatlon or undue persuasion of any
      person; that I did not use any memorandum or device to aid
      me in the marking of said ballot.

                                              Signature     of elector
                                            By:
                                                  Name of :wltness who
                                                  assisted  elector  in event
                                                  of physical dlsablllty.
             “Subdivision    4. At any time’ not more than twenty (20)
      days, nor- less than three (3) days .prlor to the date of such
      an election,     such.elector who makes written appllcatlon.for
      a ballot   as provided for in Subdivision    2 hereof,  shall be
      entitled   to have his ballot   cast at such an election    on com-
      pliance with the following     proVisIons:.

             “The ,appllcatlon,   including    fifteen     cents (15#) to
      cover postage,      shall be mailed to the County Clerk of the
      elector’s    resi’dence whose duty it &all be forthwith %o
      mail to such :eledttir a’blank .offlcitil       ballot    and ballot
      envelope as prqvlded in Subdivision           3, which ballot shall
      be marked by elector,      or by witness at the direction           of
      said elector      in case of the ‘latter~‘s    lnabllltg    ~to mark suoh
      ballot    because of physical disability,         in the presence of
      a Notary Public or other persons qualified              under the law
      to take acknowledgements, and in the presence of no other
      person except said witness and/or such officer,              and in such
      manner that~s~ueh officer      cannot know how the ballot         is
      marked, and such ballot shall then in the presence of such
      officer    be folded by the elector       or by said witness in case
      of physical disability       of said elector,       deposited in said
      envelope,     the envelope sec~urely sealed, the endorsement
      filled    out, signed and sworn to by the elector,            or in case
      of physical dlstibillty,      then bjr the said witness for and In
      behalf of ~said elector,.     and “ce&ifled      by ‘such officer     and
      then ‘mailed by ‘said ofHceP,       postage, prepaid, to the County
      Clerk.’ (Underscoring ours)
Honorable   W. C. McClaln,    Page 4


            You may note from reading this article   that two
methods are provided for voters who, because of absence from
the county of their residenoe    or because of sickness or physl-
cal disability,   cannot appear at the poll place on the day of
election.
            The first method is by written application          signed by
the elector    or a vltness at his direction,       accompanied by a
poll tax receipt      or exemption certificate,      or, in lieu thereof,
his affidavit    in writing that the same has been lost or mislaid.
If the elector     claims the privilege     of voting by absentee ballot
on the ground of sickness or physical         disability   a certificate
of a duly licensed physician certifying          as to such sickness or
physical   disability    must accompany the application.        The appllca-
tlon,  together with fifteen      cents to cover postage, must be
mailed to the County Clerk.        Upon compliance with these requi-
sites,   the elector    will be entitled    to have his ballot cast at
any time not more than twenty norlless          than three days prior
to the date of the election,       and it is the duty of the county
clerk within this time, forthwith        to mall the elector a ballot
vhich will be re-mailed to the county clerk by the elector.
For further particulars,      ve refer you to Subdivisions       2 and 4
of Article    2956.
             The se~cond method is provided in Subdivision 3 of
Article   2954, namely, by the personal appearance of the elector
before .the county clerk at any time not more than twenty or less
than three days prior to the date of the election.        For further
particulars,    refer to Subdivision   3 of Article 2956.
            In ansver to your first   question,  therefore,  we must
advise that Article   2956 regulating   absentee voting does not
provide as a method the suggested procedure by vhlch a notary
public will take out blank application      and ballot,  and have
the elector   sign the application   and vote a ballot which will
then be returned to the county clerk by the notary.
              In this connection we call. your attention to the case
of Sartwelle v. Dunn (C.C.A. 1938) 120 S.W. (26) 130.             There
almost the identical       procedure was followed.       It appeared that
ballots    were taken from the county clerk’s       office by a notary
and a candidate who vere soliciting         votes, to the residences
of certain electors       without request from them. Each expressed
a willingness      to vote, however, and the ballots vere then and
there marked by the notary at their direction.             The court said:
              I,. . . We recognize   the general rule that the will
        of the electors     should be respected   when expressed at
       the ballot,     but we are of the opinion that an elector
       exercising     the right of suffrage    through the medium
        provided by the absentee voting statute should at least
        substantially    comply Vlth the requirements of such statute.
Honorable   W. C. McClaln,   Page 5

     To hold that ballots    such as these    were cast in substantial
     compliance with the statute vould       Ignore the plain and ex-
     press provisions   thereof and open     the avenues of fraud,
     deception  and intimidation   through    absentee voting In the
     conduct of electioni.
            "We are of the opinion that the trial  court erred
     In refusing  to sustain the challenge to these votes."

           We wish to point out that we are not passing upon the
validity  of absentee votes cast In a manner other than that pro-
vided by Article  2956.   We confine our opinion to the duties of
th$ county clerk with respect to the casting of absentee ballots.
It is his duty to see that there is a substantial    compliance with
the terms of the statute;   and Insofar as his duties are concerned
the suggested procedure does not so conform.

             In answer to your second question,   the time for absentee
 voting is s eclfled   as 'not more than twenty(20) days, nor less
 than three P3) days' prior to the date of the election.      This
'Urn6 is set forth in subdivision    4 for those absentee voters deslr-
 $ng to follov   the procedure provided in subdivisions   2 and 4 of
 Article  2956.   The last day application   may be made and ballbt
 cast by one unable to participate    because of physical disability
 or sickness Is the third day prior to the date of the election.
 If the election   Is to be held on a Saturday, Tuesday midnight
 is the deadline.
           Your third question 1s whether or not Subdivision    3
relates  only to electors   absent from the county of their resi-
dence.   If you will refer to Article   2956, quoted above, you
vi11 note that we have underscored those portions of subdivision3
wherein specific  attention   has been given by the Legislature
to cases of physical disability    of the elector  or illness.
            You. are, therefore,  respectfully    advised that not only
 electors  who.will be absent from the .county of their residence
 on the day of holding the'electlon,      dut also those unable to
 atteng beCause of sickness or physlcal~dlsablllty        may avail
 themselves of the method provided in subdivision        3 of Article
 2956 for casting absentee ballots.
                                         Yours very truly
 APPROVEDJUN 7, 1940                  ATTORNEY
                                             GENERALOF TEXAS
 S/ GROVERSELLERS                     By ,S/.WALTERR. KOCH,
 FIRST ASSISTANTATTORNM                             Assistant
 GENERAL
                                      By S/ JAMESD. SMULLEN
 JDS:BBB
 Am!               APPROVED Opinion Committee,        by BWBChairman
