                       July 15, 1958


Hon. Ted Butler                    Opinion No. WW-474
County Attorney
Karnes County                      Re: Whether an elector
Karnes City, Texas                     who is within the
                                       county of his resi-
                                       dence during the
                                       period for absentee
                                       voting, but who ex-
                                       pects to be absent
                                       on election day and
                                       applies for an absen-
                                       tee ballot on that
                                       ground, may vote ab-
Dear Mr. Butler:                       sentee by mail.
            You have requested an opinion on the following
question:
            "A qualified elector makes application for
       an official ballot to the county clerk in writing
       and signed by the elector. Such application is
       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.
            "May said elector at any time not more than
       twenty days, nor less than three days, prior to
       the date of such an election, vote an absentee
       ballot without making his personal appearance be-
       fore the county clerk, although said elector is
       still in the county and in the precinct of his
       residence at the time, and who is physically able
       to make his appearance before the county clerk at
       said time, but who will be absent from the county
       on election day, and is it the duty of the county
       clerk to mail to said elector the ballot?"
             . . .




Hon. Ted Butler, page 2 (WW-474)

            Your opinion request assumes, correctly, that an
elector Is entitled to vote absentee under the circumstances
you have outlined, and is concerned only with the question of
whether he has the choice of voting by mall Instead of by per-
sonal appearance at the county clerk's office.
            There have been three prior Attorney Qeneral's
opinions on this question. Opinions appearing In Letters of
the Texas Attorney General's Office, Volume 358, p, 241 (1934)
and Volume 372, p. 643 (1936) held that either method wa8
available. A third opinion appearing in Volume 382, p. 669
(1938) held that a voter such as you have described should
vote absentee only by personal appearance at the clerk's of-
fice, without referring to the former opinions.
            Subdivision 1 of Section 37 of the Texas Election
Code (Art. 5.05, Subd. 1, Vernon's Texas Election Code) defines
the classes of electors who are entitled to vote absentee. It
reads as follows:
            "Subdivision 1. Any qualified elector of
       this State who is absent from the county of his
       residence, or because of sickness or physical
       disability cannot appear at the poll place in
       the election precinct of his residence, on the
       day of holding any general, special, or primary
       election, may, nevertheless, cause his vote to
       be cast at such an election by compliance with
       one or other of the methods hereinafter provided
       for absentee voting." (Emphasis supplied.)
            Subdivision 2 requires the elector to make an ap-
plication in writing, accompanied by his poll tax receipt or
exemption certificate or, in lieu thereof, his affidavit that
same has been lost or mislaid, and also requires a physician's
certificate if the ground of application is sickness or physl-
cal disability.
            Subdivision 3 provides that "such elector making
his personal appearance before the county clerk of the county
of his residence and delivering to such clerk his application
aforesaid," shall be entitled to receive an official ballot
from the clerk.
            Subdivision 4 provides that
            ' * * * such elector who makes written ap-
       plication for a ballot as provided for in Sub-
       division 2 hereof, shall be entitled to have his
       ballot cast at such an election on compliance
       with the following provisions:
. .. .




  Hon. Ted Butler, page 3 (WW-474)

              "The applluatioc 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 en-
         velope, * * Y,"
              The words "such elector" in Subdivisions 3 and 4
  refer to an elector described in Subdivision 1, that is, an
  elector who is absent from the county of his residence on
  the day of holding the election or an elector who because of
  sickness or physical disability cannot appear at the poll
  place in the election precinct of his residence on the day
  of holding the election. Unless a person comes within one
  of these classes, he is not entitled to vote absentee. If he
  does come within one of these classes, he may vote absentee
  by compliance with either the method provided in Subdivision
  3 (personal appearance at the clerk's office) or the method
  provided in Subdivision 4 (by mail). Attorney General's Opin-
  ion o-2298 (1940) held that a person applying for an absentee
  ballot on the ground of illness or physical disability could
  vote by either method.
               Subdivision 1 has been construed to permit a
   voter who is present in the county dllringthe period of absen-
   tee voting, but who expects to be absent from the county on
   election day, to vote absentee under the provision allowing
   absentee voting by a person who is absent from the county on
   the day of holding the election. Wood v. State ex rel. Lee,
   133 Tex. 110, 126 S.W.2d 4 (1939); Eason v. Robertson, 288
   S.W.2d 269 (Tex.Civ.App. 1956, error dism.). These cases hold,
   further, that the fact that the absentee voter is not actually
   absent from the county on election day will not make the vote
   illegal.
               It is our opi.nionthat,an elector such as you have
   described has his choice of voting by personal appearance or
   by mail. Subdivision 4 expressly provides that upon receipt
   of an application by mail it shall be the clerk's duty to mail
   the elector an official ballot. Accsrdingiy, your question is
   answered in the affirmative. Attorney General's opinion ap-
   pearing in Volume 382, p. 669 is overruled.
                               SUMMARY
               An elector who is within the county of his
          residence during the period for absentee voting,
          but who expects to be absent on election day and
          applies for an absentee ballot on that ground,
          may vote absentee either by personal appearance
          at the clerk's office or by mail, at his choice.
                                                            --.   .




Hon. Ted Butler, page 4 (WW-474)

         Upon receipt of an application by ~2.1 in com-
         pliance with Subdivision 4 sf Rrti:le 5.05,
         Vernon's Texas Election Code, it is the duty
         of the county clerk to mail a ballot to the
         elector.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




MKW:bh
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman

James H. Rogers
F.C. Jack Goodman
J.C. Davis, Jr.

REVIEWED FCR THE ATTORNEY GE:XETWL
BY:
         W.V, Geppert
