                     THICAITORNEY                        GENERAL
                                    OF-TEXAS

GERALD         C. MANN




Honorable   Dan W. Jackson                  Opinion     No. O-4455
District Attorney
Civil Courts Building                       Re:      Is the data of election excluded
Houston, Texas                                        in computing the three day period
                                                     for absentee voting ?
ATTN:      Conrad   J. Landram

Dear    Sir:

            We have carefully   considered  your opinion request of recent date
relative to the construction  to be plac,ed on Subdivisions 3 and 4 of Article
2956, Revised Civil Statutes, 1925, as amended, with reference     to the compu-
tation of the period of time within which absentee voting is to be permitted.
You refer especially   to the opinion of the Austin Court of Civil Appeals    in the
case of Clark v. Stubbs, 131 S.W.2d 663, wherein it appears that absentee votes
cast on a Sunday before an election held on Tuesday were held not illegal.

            Subdivision 3 of Article 2956 permits absentee voting by personal
appearance   before the county clerk of the voter’s residence  “at any time not
more than twenty (20) days, nor less than three (3) days, prior    to the date of
such an election a 0 *” Subdivision  4 of such statute uses the identical language
just quoted, but permits absentee voting by mail within the time prescribed.

              The language   of Clark   v. Stuffs,    supra,   to which you doubtless   refer,
reads    as follows:

              ‘The next group of voters challenge~d by appellant are
        Herman Young, Julia Mae Stubbs and Nolan Lathan, all of whom
        voted absentee votes on Sunday before the election on Tuesday.
        Appellant   attacks these votes as being in violation of the spirit
        of the statutes which prohibit the doing of certain acts on Sunday.
        Art. 286. Texas Penal Code; Art. 1974, R. S. 1925. These sta-
        tutes do not relate to voting, and since the election law authorizes
        the absentee voting for a period of from 20 to 3 days before the
        ele.ction. Sunday would necessarily   be included where the elec-
        tion is held on the first Tuesday in November      as required   by
        law; and we find no statute prohibiting   the ‘voting of absentee
        votes on Sunday. *
Honorable     Dan W. Jackson,   Page   2 (O-4455)




             It has been the view of this administration  of the Attorney General’s
office that the last day application   may be made and ballot cast by one unable
to participate   by personal appearance   on the day of the electian, ts the third
day prior to the data of the election.   In our opinion No. O-2298 it in said:

            *If the election ia to be held on a Saturday,     Tuesday
       midnight is the deadline.”

            We do not think the quoted excerpt from Clark V. Stubbs changes
the construction to be placed on the statutory declaration.     In that case the
sole attack made upon the votes cast by the named persons was because the
ballots were marked on a Sunday.     We do not recognize    the case as holding
that such votes would have been declared    legal had the assignment     been that
they were voted less than three days prioz -to the day of the election.

              In the California case of Hutchins v. County Clerk        of Merced
County,     140 Cal, App. 348, 35 P.2d 563, it is said:

            LI . a Now, there is a difference in law between the
       meaning of the words ‘within’ and “prior’.    If you have to
       do a thing before a certain day, that day is not included;
       in other words, if you have to do a certain thing before
       the 24th day of June, the 24th of June is not included, be-
       cause it must be before.    I . .*

           We therefore    advise that in our opinion your question should be
answered  in the affirmative;   that absentee ballots must be marked by the
voter by Tuesday midnight for an election to be held on a Saturday; by Friday
midnight for an election to be held on a Tuesday.

                                                      Yours    very truly

                                                ATTORNEY      GENERAL       OF TEXAS

BW:GO:tiw                                       By   /s/ Benjamin     Woodall
                                                         Benjamin     Woodall
APPROVED        MAY   13, 1942                                      Assistant
/s/ Gerald     C. Mann
ATTORNEY        GENERAL    OF TEXAS

APPROVED   OPINION  COMMITTEE
By /s/ BWB, Chairman
