             4‘aE   .ccTl-ORNEY             GENERAL
                         OFTEXAS
                        AUSTXNILTE~S




Hon. John R. Shook                             Opinion No. O-4897
Criminal  District   Attorney                  Re: Construction     of
Bexar County                                   Article    2956, R.C.S.,
San Antonio,   Texas                           respecting    absentee
                                               voting .
Attention:     Jay Sam Levey,
Assistant

Dear Mr. Shook:

          We beg to acknowledge     receipt of your letter   respect-
ing the construction    of Article  2956, of the Revised   Civil
Statutes,  your questions   propounded being as follows:

             “1.  Where an elector   intends   to be absent
      from the county upon election      day, mails in his
      application   to the county clerk within the period
      described   by law, together   with the statutory     fee
      to cover postage,    is It the duty of the county
      clerk to mail a ballot     to such elector   to his ad-
      dress located   within  the county?

             “2.    On what day does absentee   voting  begin
       and on what day does absentee     voting  end for the
       general   election  to be held on November 3, 19421

             “3 . When do absentee ballots have to be in
       the hands of the county clerk in order to be
       counted in the election?”

            We answer your questions categorically,  giving brief-
ly our reasons   for such answer, in the order propounded by you,
as follows:

              1. Subdivision   3 of Article   2956 authorizes    the
county clerk to deliver      to an elector   desiring  to cast an
absentee    vote (such elector    making his personal    appearance
before   the county clerk)    within  the time there specified,      and
provides    for the marking and depositing      of the ballot   by the
elector.

            Subdivision    4 relates   to    the   application   for   a ballot
by an elector,    as follows:
                                                                                   --   -




Hon. John R. Shook,         page    2   (O-48,97)


             “The application,           including      fifteen       cents
      (ls#)    to cover postage,           shall, be maiLed to
      the County Cl.erk of the elector’s                  residence
      whose duty it shall be forthwith                   to mail to
      such elector       a blank official.          ballot    and ballot
      envelope      as provided       in Subdivision         3, which
      ballot     shall be marked by elector,                or by wit-
      ness at the direction            of said elector          in case
      of the latter’s         inability      to mark such ballot
      because     of physical      disability,         in the presence
      of a Notary Public          or other persons           qualified
      under the law to take acknowledgments,                      and in
      the presence of no other person except                    said wit-
      ness and/or such officer,              and in such manner that
      such 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            disabilit,y      of said
      elector,      deposited     in said envelope,           the enve-
      lope securely        sealed,     the endorsement          filled      cut,
      signed and sworn to by the elector,                    or in case o:f
      physical      disability,       then by the said witness               for
      and in behalf        of said elector,          and certified          by
      such officer       and then mailed by said officer,
      postage prepaid,          to the County Clerk.”

             It is thus apparent that Subdivision           2 deals with
the elector    who desires    to cast his absentee vote by deliver-
ing same personally      to the County Clerk,       and Subdivision       &
deals with the elector      ,who contemplates      mailing h,i.s tXM.o-t
to the County’ Clerk.      Subdivision     2 necessarily     requires     the
personal.   appearance   of the elector     before   the clerk,     whereas
Subdivision    4 clearly   does not.      It specifically      authorizes
the clerk to mail the ballot        and envelope     to the applicant,
and likewise    authorizes    the elector    to mail ,the ballot       back
to the clerk     duly marked,    Your first     qu.estiori,  therefore,
is answered in the affirmative.

               In Opinion No. O-4700, addressed          to Hinore.ble Ben
J. Dean, District         Attorney,   Breckenridge,    Texas, we answered
five    specific    questions    with respect    to the authority      of ~the
county clerk to send to an elector             an absentee     ballot  rais-
ing points       of irregularity     in the application      therefor,   which
opinion     clearly    involved    your question    above,    and as clearly
implied     the right     and duty of the clerk to send out such a
ballot.       A copy of that opinion       is attached     hereto.

             2.   Subdivision  5, dealing            with the receipt          and dis-
position    of ballots   by the clerk,  is           as followsr
  .        .




Hon. John FL Shook,            page 3     (O-4897)


                 “Upon receipt     of any such ballot       sealed in
          its ballot     envelope   duly endorsed,      the clerk
          shall keep the same unopened until            the second
          day prior    to such election,      and shall then en-
          close    same together    with the elector’s       appli-
          cation    and accompanying     papers     in a larger
          or carrier     envelope which shali be securely
          sealed and endorsed with the name and official
          title    of such clerk,     and the words ‘this       envel-
          ope contains     an absentee    ballot,     and must ,be
          opened only at the polls        eon election     day,’ and
          the clerk    shall   forthwith   mail same, or deliver
          it in person,      to the presiding     judge of election,
          or to any assistant       judge of election,       in said
          precinct   o

                 “And ballots    mailed out by the county clerk
          within   the legal    tfme,  but not received    back by
          him on or before      the third    day prior  to the elec-
          tion on the day of elec,tion,         shall not be voted,
          but shall remain Ia the custody of the county
          clerk during the thirty        (30) day period   provided
          in Subdivision      6.”
                 Subdivision  6 deals        with    the   final   casting   of    the
ballot,        and reads as follows:

                 “On the day of such election,                and in the
          presence     of the election        officers,       and the
          supervisors,       if any, one o,f the judges of
          election     shall,    between the hours of 2:00 and
          3:OO o’clock        open the carrier        envelope      only,
          announce the elector ps name and compare the
          signature     upon the application            with the signa-
          ture upon the affidavit            on the ballot        envelope.
          In case the election           board finds       the affidavits
          duly executed,        that the signatures           correspond,
          that the applicant          is a duly qualified           eleotor
          of the precinct,         and that he has not voted in
          person at said election             they shall open the en-
          velope containin:         the e Eector’s       ballot     in such
          manner as not to deface            or destroy       the affidavit
          thereon,     take out the ballot          therein      contained
          without   permitting        same to be unfolded           or exam-
          ined and having endorsed the ballot in like man-
          ner as other ballots           are required       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.
          If the ballot        be challenged       by any election
                                                                                ‘   .




Hon. John R.    Shook,     page 4      (O-4897)


     officer,       supervisor,     party cha~llenger,         or other
     person,      the grounds of challenge            shall, be heard
     and decided       according      to law, including          the con-
     sideration       of any affidavits          submitted     in sup-
     port of or against           such challenge.         If the ballot
     be admitted,        the words ‘absentee          voter’     shall be
     set down opposite           the eleotor’s      name on the poll
     list.      If the ballot       be not admitted,         there shall
     $endorsed         on the baok thereof          the word ‘reject-
           , and all rejected        ballots      shall be enclosed,
     securely      sealed,     in an envelope       on which words
      ‘rejected      absentee ballots’         have been written,
     together      with a statement         of the precinct         and
     the date of election,            signed ~by the judges and
     clerks     of election       and returned      in the same man-
     ner as provided         for the return        and preservation
     of official       ballots     voted at such election.              In
     all cases the application              poll tax receipt         or ex-
     emption certificate,           ballot     envelope     and the af-
     fidavits      and certificates         accompanying       same shall
     be returned       by the officers         of election      to the
     county clerk who shall keep all such papers ex-
     cept poll tax receipts            and exemption        certificates
     for one (1) year and shall              return poll tax re-
     ceipts     and exemption certificates             to the voter at
     any time after         the same have been returned              to him
     except in case of challenge              when such poll tax re-
     ceipts     and exemption       certificates       shall     be held
     thirty     (30) days and as much longer              thereafter”      as
     any court or reviewing            authority     may direct .‘I

             If, by the words “on what day does absentee        voting
begin”,   you mean the act of the voter in depositing        or mail-
ing to the clerk his vote,        the answer is “not more than twenty
days prior to the date of the election.”         As applied   to the com-
ing election     on November 3, that would be October 14.        In like
manner, the absentee       voting  ends not less than three days prior
to the election,      which,   in the coming November election,     would
be midnight,     October 30.

          We held the same in Opinion No. O-4455,     addressed   to
Honorable Dan U’. Jackson, District   Attorney, Houston,   Texas,
a copy of which we hand you herewith.

             3.  Your third question    is answered by the last para-
graph of Subdivision     5 above quoted;    that is, no ballot   not
received   back by the clerk    on or before    the third day prior to
the election    shall be voted.    A ballot   in the United States
Hon. John R. Shook,    page   5    (O-4897)

mails not actually   received      by the clerk before  midnight of
Friday,  October 30, should       not be voted or Counted in the
election  of November 3*

                                      Very   truly   yours

                                      ATTORNEYGENERALOF TEXAS

                                      By /s/ Ocie     Speer
                                      Ccie Speer,     Assistant

APPROVED: OPINION COMMITTEE
BY:      BWB, CHAIRMAN

APPROVEDOCT 13, 1942
/s/  Gerald C. Mann
attorney   general of texas

os-MR:wb

Enclosure
