         THEATTORNEYGENERAL
                              XAS



                     March 19, 1962

Honorable Mack Wallace      Opinion No. w-1281
County Attorney
Henderson County            Re:   Whether a physician who
Athens, Texas                     is a Notary Public can
                                  acknowledge the applica-
                                  tion for an absentee
                                  ballot and then issue the
                                  disability certificate
Dear Mr. Wallace:                 as a physician.
          We are in receipt of your request for opinion on
the above captioned question. Your problem, stated more
in detail, Is as follows:
          "An osteopathic physician has Informed me
     that he InterIdsto make application for a Notary
     Public's commission and that it is his inten-
     tion to issue disability certificates to people
     who wish absentee ballots and at the same time
     be the Notary who acknowiedges the application
     for the absentee ballot.
          Subdivision 2 of Article 5.05 of the Election Code
of Texas states as follows:
          "An elector desiring to vote absentee shall
     make written sworn application for an official
     ballot to the county clerk of the county of his
     residence, which application shall be signed by
     the elector, or by a witness at the direction of
     said elector in case of the latter's Inability
     to make such written application because of phy-
     sical disability. Such application shall state
     the ground on which the applicant is entitled to
     vote absentee and In case of an application by
     mail shall give the necessary information to
     enable the clerk to determine whether the appli-
     cant Is entitled to vote by mail. Such applica-
     tion shall be accompanied 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 ap-
     plication be sickness or physical disability by
Honorable Mack Wallace, page 2 (w-1281)


     reason of which the elector cannot appear
     at the polling place on election day, a
     certificate of a duly licensed physician or
     accredited Christian Science practitioner
     certifying as to such sickness or physical
     disability shall accompany the application,
     which certificate shall be in substantially
     the following form:
          "This is to certify that I have per-
     sonal knowledge of the physical condition of
                          , and that because of
     sickness or physical disability -he will
     be unable to appear at the polling place for
     an election to be held on the       day of
                   , 19-.
          "Witness my hand at            , Texas,
     this -day     of           > 19-.

                        (Signature of Physician)
          "Any person who requests a physician to
     execute a certificate for another person
     without having been directed by such other
     person to do so, and any physician who know-
     ingly executes a certificate except upon the
     request of the voter named therein or upon
     the request of someone at the voter's direc-
     tion, and any physician who knowingly delivers
     a certificate except by delivering it to the
     voter in person or by mailing it to the voter
     at his permanent residence address or the
     address at which he is temporarily living,
     shall be guilty of a misdemeanor and upon con-
     viction shall be fined not more than Five
     Hundred Dollars ($500) or imprisoned in the
     county jail for not more than thirty (JO)
     days, or both so fined and imprisoned.
          The case of Morris v. Dunn, 164 S.W.Zd 562 (Civ.
APP. 1942) concerned a situation wherein a candidate in
a general election himself served as the Notary Public for
citizens voting by absentee ballot. The argument was
developed there that a party to an instrument, no matter
how small or nominal is his interest therein, cannot act
as a Notary Public. Nevertheless, the court held in this
case that there was no express prohibition against the
Honorable Mack Wallace, Page 3 (~~-1281.)


propriety of such an acknowledgment, or the counting of
such ballots. This was, of course, in the absence of
any fraud or undue influence,,
          The provision of the Election Code, quoted above,
in providing for the application for absentee ballots to
be sworn to, and in providing for the certificate of a duly
licensed physician, contains no prohibition or language to
indicate that the same person may not assist in both these
capacities. Nor are we aware of any other provision or
law requiring separate individuals for notarial acknowledg-
ments and physician's certifications.

                       SUMMARY
           A physician who is a Notary Public can
      acknowledge the application for an absentee
      ballot and then issue the disability certi-
      ficate as a physician.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas



                                    Fred D. Ward
                                    Assistant
FW:jkr
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Arthur Sandl~in
Vernon Teofan
Robert Rowland
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Houghton Brownlee, Jr.
