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                OFFICE       OF   THE   ATTORNEY      GENERAL      OF      TEXAS
                                            AUSTIN




     Konombia T. it. JOhnSOn
     County .,tt3rnoy, iiertge3         COUEty
     iSg Ltike, Teas

     uuzir 2.     Johnson:




                                                                      upon the     nbu7e




                                                                 .7, requests




           County Clerk, should &core                ab3c:;teo   bellots     80 rz-
           ccivod or a:ethr  he ohculd             dcliVer then t0 tbY eiSC-
           ti;n    Judges     for   their   cOiSi~e~::tioll and. deterzimtion
           a s to ::k;?.i.r  they diould be caii.:td or nst.   The rs3t
           frec,;c..t  ~:CGQ~US  of !iOtVnbsectce bdl~t  envelo-es !i1~6
           teen received     by hia in the ?zst no illustrated    by
           Sxhibits    ‘.L,’ ‘3’ and ‘G’ stts.c,hed.
            %hould the County Clerk ignore as void ub-
   ocntee ballot emeloges   which ore not properly filled
   in, signed and sworn to by the elector   when received
   by him through the mils    3r should said County Clerk
   doliver  such absentee ballot e:Jvclo:es to the election
ti judges for then to deterxlne whether the ballot    thore-
   in should be considered  or not?
            “bhat would be the application     of this quce-
  tlon to an absentee ballot ezvelo?e which hos not been
  filled   Fn at all and which has not been sighed or 3;:orn
  to by the elector    eo shown by Sxhibit’j,’   where the ab-
  scnteo ballot envelope h,:s been pi:rtlally     filled in but
  not signed or sworn to as shown by Lxhiblt ‘B,l and
  where the absehteo ballot     envelope has been filled     in
  and signed by the elcxtsr     bat not sworn to before a
  Notary Publia or soxe cfficm       an?Aorizod to t Ike acknowl-
   ,‘adg~~ents as shown by Lzhlbf,t ‘C’:’
              “The Costy   Clerk is only interested    in whut
   disporltion    he should x2e of such nbscntee ballots;
   that is, ehethrr he should or should hot deliver        them
   to the presiding     judge of election,  or to any assist-
   ant judge of eleotion,      in the proper precinct.




            *It  is my opinion t!%t absentee ballot envelopes
   i&OC qogerly   filled   in, signed md cxorn to by the eleo-
   tor as provided by lnw are void and should be ignored
   by the County Clerk when received       by bin through the rzuLls
   c;i:d should not be delivorod    to the judges of electl~n  to
   b3 considered    a8 ballots   In the election  beiag hold.
             *I tail to find my decisions  by our appell:,to
   courts on tho subjeot,   but BubdivisTon 4 of Article  2956
   provides the zanner in which absmtee ballots    should bo
   cnst * to-wit:
Honortible   T. .H. JOMB;Il,        px~e 3




                  “’ l + 4 which ballot     shall be a a sk ed by
             elector,   * * * in the presence ot a Notpirg
             Fubllo or other persons qualified        under the
             law to take acrnowled~mmts,         l * l and suoh
             ballot   shall th e n In the presenoeLof     :uoh
             ofrlcer   be folded by the elootor
             deposited    in stiid envelope,   the envelope
             securely   sealed, the endorsam!nt filled        out,
             nirJned ;ad oworn to by the elector,        or in
             case of disability,     then by the said witness
             for and in behalf of said eleotor,        and certi-
             fied by euch officer     and then nailed by=
             officer,   postage preyuid, to the County Clerk.’

        “And Subdivision  5 ot said ..rtiole 2956, Revised Civil
        Itatutcs  of Texas of 1925, seta out what the County
        Clerk is to do with said absentee ballot when rcoeivad,
        a8 r0ii0w8:

                 **Upon receipt      of any sach ballot
             sealed in its ballot envelo:m duly en-
             c0rsea,     the clerk ah‘?11 keep the sa?le un-
             opened until the second day prior to suoh
             election,      acd shall then-enclose    the sazz
             tosether     with the eLector's    applfcation
             and acoollpanglng papers, in a larger or
             carrier     envclojm which shall be securely
             sealed aad endorsed with the nme aod of-
             rroiol    tftle   or such clerk,   and * * *
             the clerk shall forthwith zail otme, or
             deliver     it in person, to the presldlng
             judge of election,       or to any assistant
             judge of elootion,        in said greoinct.'
             (See firtiolo     2956 ior duties or eleotlon
             judges as to such ballots).”


                     Subdivision    5 or ..rticle   EQSO, Vernon*s Annotated
Civil    Statutes,      provides:

                   "Upon receipt  oi uoy such.bnllot  (absentee)
        sealed   in ita ballot   enveloye duly endorsed, the
’Ifonorabie   T. A. J ohsson,   p-age 4




       county   Clerk   shall ‘mep the sme unopened until
       tho second day prior to such eleotion,         and shall
       then enclose saize together with the eleotor’s
       a?plloatlon     and aooo~?i~n$ing pupcrs, in s larger
       or currirr     envelope          end the olcrk ehall
       forthwith    mall sa!:.B, or d&lver   it in person, to
       the presiding     judge of election,    or to any assist-
       ant judge of eleotioa,      in said precinct.*

                 Then follows  another paragraph of seid Subdivieion
 5 vihioh requires   “bclllots &led    out by the county clerk    within
 the legal tlm,     but not reoeived*b:c$   by him on or before the
 ts,?rd day prior to the aloction            shall not be voted, but
 shall re;;l:lin in the oustody of the co&ty alerk during the thirty
 (50) day psriod provided for in Subdivision       6 of’ said hrtiole.”

                It will therefore         be noted that while express pro-
 vision is a&e for the custody            of absentee ballots   not received
 b;lck by the county clerk on or          before the third day prior to the
 election,  no suoh provision    is       made for the disposition   of eb-
 sentce ballots   received by said         clerk in ballot envelope6 not
 Dulp endorsed.

                 A anreful exazAnution’oi    Subdivision 6, bowever,
 cletirly implies that such b:illots    shnll be emiled or delivered
 in person by the county clerk in like tinner and to the proper
 aieotion  ofriolals    as required oonoernlng bdlota    in duly en-
 dorsed ballot    envelo?es.

                  Said Subdivision     6 oontains,    among others,     the
 following    provislone:


                   *In case tr‘e olectlon      botird rind8 the afri-
        davits (on brAlot envelopes)          duly exaouted, thtt the
        sign-itures    (upon the opplb;itfon      and upon the affidmit)
        correspond,     t!lJt ~the applloazt    is a duly qualiried
        elector   or the :Jreclnot,     aad tlzt he has not voted
        in person at said election,         they shall open the envelope
        containing    the 61eOtor’s     ballot    * a *    If the ballot   be
        adtittod,    the word8 ‘absentee voter’ shall be aet down
        opposite    the elector’s    nu:ze on the poll list.        If the
        ballot be not admitted,        there Call      be endorsed on the
        back thereof the word *reJected,*            and all rejeoted
      .bsllota   shad be anclosed,        sco,;relp    sealed,  in an
      envelope on whlon word0 *rej?Jcted ubasntoe bullets’
      have boon virittcn,      topthdlr    with a stata;zent of t>e
      precinct    n;ld the dote of election,          signed by the
      judaus and clerks cf oleotlon           snd returned in the
      s+;wa manner :%a 2rovidsd ?or t!ie racurn end poser-
      v::tlon irt official     ballots    voted ot ouah election.
      In all ani       tha acgl:c.-rtion     ?a11 tax receipt      or 8x-
      elqti,on aertiflcate,       bsll,ot envelope o;ld the affids-
      vits and csrtlffo.%tea       accom~onying B~IX shall be re=
      turnad by the ofrlccrs         of aleotion      to the oounty clerk
      who s?:sl.l kcop all such p.ciperzJ       ene?t     poll tex ra-
      ceipts    and exe.qAion certificates          for one (I) year
      and shall return poll tilx recai%s              and exesibtiol;
      ceztific~ztss    to ,tl;o voter * * *‘sxcept         in &se or
      ch;;:llen~o 7 * *.”       (&qhasia     our>-)

                  Tnus, It we6 clearly       tho lntc3tion    oi ths it?Ril3h:ture
t.h;lt g,l.l ;lbsantec-,be],lot   e??velooe~ecefvod      by the county-clerk
zn or bcroro the third dsy erior to tho olectlon;‘toi~etber                  with
their oo:;tcnts and the other instr&?ts              mentioned in Aubdiviaian
6, should Do mailed or delivered            in aeroon by tbc couht y clerk 3s
thcreln directed.         Otharwino, how could the election         board de-
tomine whether or not the aPfldavits              (on the ballot   anvelo~pes)
hid been duly executed,          or that the s2gnaturss     (upon the ag;llica-
tlon ad u?on tho nffiduvlt)            corres~ohdY    Alao, how nould said
hoard be able to detemine           the other rictters covered by ~~ubdivl-
eioa 3 and comply with its provlslons7              It ccrtaialp    coald not do
so if eald      absentee b&lot      onvelogas and eooom~anylng papers
were not delivered        to it.

               Suppoose the aboeiltee voter’s   oppUaatioa,     because
of his physical dlsabllity,     is yreasred and signed by one witness
zrid oaid voter’s  affidavit  OB the ballot    envolo,m 1s filled     out
md sig,ned by a %itiless other th!m the first.         Could it be con-
teaded tht;t anyone, other tbn& the pro?er olectloh       offlolnl&,
could deto&%dne Whethw said ballot       envelope hid been “duly
ecdoraed?”
                9up?oso ths eemty clerk should fail to deliver        re-
turnad b;;ilots   in a~~vcl.opos -sot duly endorsed a;ld an election
contest shouid thiredtof       emue.      Xabarrasment  and serious
coneequences xi6ht saslly      result,  ospeclaUy ii such bnllots    should
be lost or destroyed.      The Clerk’s    oontentlon as to lack of proper
endoraeslent could and probi;bly would be net by ah emphatio denis
by the absentee elector.      MO RL?~ iimie aould arise If the nbeentee
ballots      in question      are delivered     by the county clerk         in the
war        groscrlbod       In Subdivision     6,   SU3ra1

              In the oeae of Sartwalle v. Dunn (Clv.                      App. 193’3)
120 5. ii. (Zdj 130, the cou.rt used this SigliffCaDt                     ~lsngusge:

               Ve recognize     the-general   rule th?t the
      ~~11 of the &zctcrs      should be xesimtad     when ex-
      prsooed at the bullet,      but ~23~r6  or  the 0pini0n
      th%t 811 elector cfitrcisir.g   the r; ght of suttrcge
      through the z?dlm     grovidcd by the absentee voting
      statute should at le.&
      the roguirezents  of such statute.

               Fho, tbea, is te determine whether said reguire-
,zents h~.ve been substaatiallv     ooqlied    with?  Ho such authority
is given the cm--t                    is clearly  the dyty of the respec-
tive Drecinot eleotlon    off ioials.
                    In, the    OABB of   ‘in~~~t3g V. 3llhel;ll   (civ.   ADD), 52 s.
‘ii. (M)     757,   error     refused,    it WAS held that:


                      w’i’he will of the leg,al voter5 as expmsed
          at the polla $8 the utter         cf 3mm3uht conearn, ma,
          in tne absence or any showing or fraud, or reasonable
          lniiio;rtlon that such wlL1 .has not been ralrly         expressed
          and the evidence fhcre.;f       oroperly orooorved,    the oourts
          heve boon liberal       in construing   and enfcrciag    a8 dire+
          tory onle the provision8        of the election   lows whlChe
          not upon their face cle&ly mandatory.”             (.Emghssle ours)

               In the saae case, the votes of seven absentea votoxs
v:ereattaaked,   five ;;f %hozl did DOt deliver. or exhibit   their poll
t;Lx receipts  to the oounty clerk Mhen obtaining     their ballote,  35
provided for in Article      2986, E. 3.    The county o lerk .mde ho
ouch dezand, althmgh said five voters had paid their poll t’:xa5
and were quallfied    eleotors.    Rogerding these votes the court
         ‘.
..   .




              Honorrtble T. A. Johnson,          &ge   7




              said:

                                *That they expressed     thair ~0111 by an
                      othcrwlae legal bullet,      that euoh ballot wDB not
                      tampored Nith, but was oouatad,        io not denied.
                      The proper time and pltice to h:sve raised that
                      question would hove been, we think, by challen6e
                      or these votes when tendered to the election of-
                      ficisls.    aa provided for in Art. 2z3$.t There fs
                      no indication    that this wtna done,          ; cud we
                      decline   to dlaSranchioe     them beoauvs administra-
                      tive orficiala     ho0  railed,   * l + to aisohorge the
                      -ties                  lmpoeed PpOA them by the 8tatute.v
                      ( r;mphasie ours)

              Aleo     see   Stratton    v. Hell, (Civ. irpp.1 90 3. b.   (2d) 863;   Booker
              V. Foster,       (Civ.    Bpp.) 19 S. x. (2d) 911.

                                Clsarl.p, theretore,   the duties of the county clerk
              in connectfon withtbse          matter8 aro minlsterlal     and not discre-
              t ionnrg.     iie is nut vested with authority      as to what ballots     shall
              or shall not be au~atod.         Such authority   is treated ln the proper
              ehCtiOA     OtfiCial8.      The presumption obtains    that said oiiiclolf~
              will perfonn their duties in a l~~wful manner. Should they admit
              AbJeAtW bclllots which should k3ve been rejeoted,            or should they
              raject    suoh Bsllotn which should hove been admitted, ample pro-
              vision    ie xde ror the preservation       of both.    The evidence ia
              thus legally      preserved in the event of a contest.          A serious
              question     in this connection would be presented if the oounty olerk
              should retain any euoh absentee ballots          in his pO33es51On.       A
              more soriom       Cuostlon   would nrlse in the event sold clerk should
              destroy same.         These matters lzre very serloua and involve       grave
              conneguencee.       The Best way 1s the safe way. The safe way 18 tar
              the county olerk to mail or deliver         to the proper election      offi-
              cials all returned absentee ballots         in their envelopes,     exceat
              those whloh clre not received        back by him on or before the third
              day prior     to the election.      By so doing he will perform his du-
              ties in the manner oletirlg implied by the statute;            and he will
              not violate      sny of the provisions    of Articles    216 to 231, inclu-
              sive, of the Penal Code of Texas, and all amendment8 thereto.
                                  Fortunately,  the Yupreae Court of Texas, in the
              rather     reaont     ease or aood V. State (1939). 1213 5. W. (24) 4,
,.   :
         .

             Honorable      T. rC. 3~hnaon,    p-.ge 0




             hn8 hit   n0 doubt as to the ffi;aning 0r Seotion 5 or mtlolo
             2956, aioreeald.   The fUlloWing quotation from ssld oaae 1~
             unambiguous and very aerinite:

                                  nljubdlvlsion    5 of thio Artlole     (2956)
                       makes it the duty of the county clerk,            when he
                       recolves    an absentee ballot,      to keep same un-
                       opened until      the eeoond day prior to the eleo-
                       tion.    It i6 then mado his duty to enclose the
                       ballot with the elector*8         application    theretor
                       in an envelope,       securely sealed,     etc.,  and mall
                       or dellvcr     the same to the proper preeidlng or
                       oeslstant     eleotlon    judge.”

                            Let it be derinitely mderstood   that we are not
             pneslng upon the legality  or such absentee ballots.     Such is a
             matter ror determlnatlon  prlmarllp by the proper election   otfi-
             olnls in eaoh preolnot.
                                                                   Youri   very truly
                                                              ATTCZZEYGEWRALOF TEXAS

                                                                   p
                                                              By       .   -
                                                                           L. H. Blewellen


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