                 E              NEW      GENERAL
                          OF      EXAS




Hon. Ben J. Dean           Opinion No. O-4700
District   Attorney        Rer ConstPuction of the provisions     of
Brec,kenridge, Texas       Article 2956, Revised Statutes, with
                           reference to voting. by absentee, ballot.
Dear Sir:
            Based upon the provisions   of Article 2956 of the Be-
vised Civil Statutes of Texas, a,s amended, you request our opin-
ion as to the correct    answer to several questions which we take
the liberty   to restate as follows:
           “1.   Is the county clerk of a county authorized
      to send a voter an absentee ballot upon oral request
      of some friend or relative   of the absentee?
            “2.   May an absentee voter, through the agency
      of a friend,  make written application   such as would
      authorize the clerk to send such ballot?
            “3. Is the clerk authorized to mail an absentee
      voter a ballot,  where the name of the voter appears
      on the certified  list of poll tax payers, even though
      the voter does not send his poll tax receipt to the
      clerk at the time of making application   for a ballot?
            “4. Is the clerk authorized to mail an absentee
      voter a ballot if the application for a ballot  is ‘not
      accompanied by fifteen cents (15$) to cover postage?
            lr5. Is the clerk authorized to mail a ballot to
      an absentee voter if the fifteen    cents (15$) is paid
      by some friend or other disinterested    person as his
      agent?”
            As all of the above questions are directed    to an inter-
 pretation  of that part of Article 2956 applicable    to absentee vot-
 ing by mail, we omit the provisions   applicable  to voting by~per-
 sonal appearance before the county clerk.     The pertinent  provi-
‘qsions of the statute follow:
            “Subdivision 1.  Any qualified  elector    of this
      State who is absent from the county of his residence,
      or because of sickness or physical disability      can not
      appear at the poll place in the election     precinct   of
Hon. Ben Jr Dean, page 2      (O-4700)


     his residence,   on the day of holding any general,     spe-
     cial,  or primary election,   may, neverthelss,   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.
             llSubdivlsion 2.    Such elector     shall make applica-
     tion for an official       ballot    to the county clerk in writ-
     ing signed by the elector,         or by a witness    at the direc-
     tion of said elector       in case of latter’s      inability     to
     make such written application          because of physical disa-
     bility.      Such application     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 application
     be sickness or physical disability          by reason of which the
     elector     can not appear at the polling       place on election
     day, a certificate      of a duly licensed      physician certify-
     ing as to such sickness or physical disability              shall
     accompany the application.
           I,. . . .

            Y%bdivision   4.   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 who makes written ap-
     plication   for a ballot as provided for in Subdivision    2
     hereof,   shall be entitled   to have his ballot cast at
     such an election   on compliance with the following   provi-
     sions t
           “The application,    including fifteen     cents (15#> to
    cover postage,      shall be mailed to the County Clerk 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 witness   at the direction      of
    said elector     in case of the latter’s     inability    to mark
    such ballot because of physical disability,            in the pres-
    ence of a Notary Public or other persons qualified            under
    the law to take acknowledgments, and in the presence of
    no other person except said witness 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 pres-
    ence 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 securely sealed,
    the endorsement filled      out, signed and sworn to by the
    elector     or in case of physical    disability,      then by the
    said wikess      for and in behalf of said elector         and certi-
    fied by such officer      and then mailed by said oificer,
    postage prepaid,      to the County Clerk.
Hon. Ben J. Dean, Page 3       (O-4700)


          11
               .   .   .   .


           %ubdivision        6. On the day of such election,              and
    in the presence of the election             officers,     and the super-
    visors, if any, one of the judges of election                   shall,
    between the hours of 2~00 and 3rO0 o’clock                 open the car-
    rier envelope only, announce the elector’s                 name and com-
    pare the signature upon the application                with the signature
    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     elector     of the precinct,       and that he has not
    voted in person at said election,              they shall open the en-
    velope containing the elector’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 examined and having endorsed the ballot
    in like manner 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        officer,    supervisor,     party challenger,        or
    other person, the grounds of challenge shall be heard and
    decided according to law, including the consideration                     of
    any affidavits        submitted in support of or against such ohal-
    lenge.     If the ballot be admitted, the words ‘absentee
    voter’ shall be set down opposite the elector’s                   name on the
    poll list.       If the ballot be not admitted, there shall be
    endorsed on the back thereof the word ‘rejected,’                    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 manner as provided for
    the return and preservation            of official     ballots    voted at
    such election.         In all cases the application           poll tax re-
    ceipt or exemption certificate,            ballot     envelope and the
    affidavits     and certificates        accompanying same shall be re-
    turned by the officers          of election     to the county clerk who
    shall keep all such papers except poll tax receipts                     and
    exemption certificates          for one (1) year and shall return
    poll tax receipts         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 receipts                   and exemp-
    tion certificates         shall be held thirty (30) days and as much
    is;;;;    thereafter      as any Court or reviewing authority may
            .
          II. . . .*
Hon. Ben Jo Dean, page 4      (O-4700)

              With reference to the first  question propounded by you,
it will     be noted that Subdivision  2 of the above statute provides
that :
           “Such elector    shall make application   for an official
     ballot to the county clerk ip writina signed bv the eleq-
     4py, or by a witness at the direction       of said elector    in
     case of latter’s    inability  to make such FPitt0n amlica-
     w     because of physical disability.l~
           We think the intent of the Legislature       is thus made plain-
by the use of the words underscored by us it was the intent that
the application   must be in writing.     This conclusion    is strength-
ened by reference   to the words of Subdivision      6 wherein it is pro-
vided that on the day of the election,       one of the judges of elec-
tion, before depositing     the ballot  in the ballot box shall “compare
the signature upon the application      with the signature upon the af-
fidavit  on the ballot    envelope.”   Further, said judge is authorized
to cast such ballot    if the election   board “fintse;Ee    affidavits
duly executed, that the &matures        corresoog8,        .
            In this connection, we-direct   attention  to the case of
Sartwelle v. Dunn, (Tex.Civ.App.     1938) ~120 S.W.(2d) 1300 In that
case it appeared that ballots    we?e taken from the county clerk’s
office   by a notary and a candidate to the residences    of certain
electors   without request from them. Each expressed a willingness
to vote, however, and the ballots    were then and there marked by
the notary at their direction.     The court said:
              ” . . . 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   exercis-
      ing the right of suffrage through the medium provided by
      the absentee voting statute should at least substantially
      comply with the requirements of such statute.        To hold that
      ballots     such as these were cast in substantial   compliance
      with the statute would ignore the plain and express provi-
      sions thereof and open the avenues of fraud, deception and
      intimidation     through absentee voting in the conduct of
      elect ions.
            “We are of the opinion that the trial      court erred     in
      refusing to sustain the challenge to these       votes.
              11. . e,I

              In view of the above,   we answer the first   question     in the
negative.
          The second question is answered in the negative,  also,
with the exception stated in Subdivision 2, supra, “or by a
Hon. Ben J. Bean, page 5       (O-4700)

witness at the direction    of said e,lector in case of latter 1s in-
ability   to make such written application   because of physical dis-
ability.”    It will be observed that in Subdivision   4 the ~same
exception is applicable    to the actual marking of the ballot.
            In regard to the third question        dealing with the “au-
thority” of the county clerk to mail one a ballot whose name
appears on the certified      list of poll tax payers        but who does not
accompany his application      with his poll tax rece 1pt, we say that
the clerk does not derive any such ‘authority11 from~ the statute.
The second sentence of Subdivision       2 provides that the application
for a ballot    is to be accompanied by the poll tax receipt          or ex-
emption certificate      of the elector  or his affidavit      in writing
that same has been lost or mislead.         The latter     part of Subdivi-
sion 6 provides for the return to the ,voter of the poll tax re-
ceipt or certificate      of exemption.   This is to be done by the
county clerk after the election.        Therefore,    following   the statute,
you are advised that the county clerk is not authorized to forward
a ballot where the application       is unaccompanied by either the poll
tax receipt   or certificate     of exemption of the elector,      or in lieu
thereof,  the written affidavit      of the voter that he has lost or
mislaid the same.
            Your fourth question relates to the 18authority1,!, of the
county clerk to mail the ballot where the applicant does not in-
clude fifteen    cents (154) to cover postage.      The only reference
to such matter in the statute is in the language contained in Sub-
division   4:   “The appliaation,   including fifteen   cents (15Q) to
cover postage, shall be mailed to the County Clerk,” etc.          We are
of the opinion that the clerk would not be authorized to send the
ballot where the a plication      therefor   is not accompanied by the
fifteen   cents (15#  P. Your fourth question is accordingly answered
in the negative.
            But we do not believe   that a mere failure  to forward the
fifteen   cents (15#) along with the written application    would justi-
fy the clerk in failihg    to forward the ballot   if the amount should
be timely paid either by the elector himself or by some other dis-
interested   person as his agent.    Therefore we aQswer your fifth
question in the affirmative.
                                      Yours very truly
BW:GOrwb                              ATTOBEEY  GENERALOF TEXAS
APPROVED   JUL 11; 1942               By /s/ Benjamin Woodall
/s/ Gerald C. Ham                     By Benjamin Woodall, Assistant
ATTORNEY   GEEEBALOF TEXAS
APPROVED:OPIEIOIi c0Im1lTEE
BY:     BWB , Chairman
