                                              KEN PAXTON
                                         ATTORN EY GE N ERAL OP TEXAS

                                                  March 9, 2015



The Honorable W. Coty Siegert                               Opinion No. KP-0009
Robertson County and District Attorney
Post Office Box 409                                         Re: Qualification for early voting by mail
Franklin, Texas 77856                                       under section 82.002 of the Election Code
                                                            (RQ-1221-GA)

Dear Mr. Siegert:

        You ask about the disability requirements for voting early by mail pursuant to section
82.002 of the Election Code. 1 Section 82.002 allows qualified voters to cast a mail-in ballot in an
election prior to the official election day "if the voter has a sickness or physical condition that
prevents the voter from appearing at the polling place on election day without a likelihood of
needing personal assistance or of injuring the voter's health." TEX. ELEC. CODE ANN.§ 82.002(a)
(West 2010). You state that"[ o]n the application for ballot by mail, there is a box voters can check
for 'Disability' which allows them to vote early by mail." Request Letter; see TEX. ELEC. CODE
ANN. § 84.01 l(a)(4)(D) (West 2010) (requiring certain information on an early voting ballot
application for "an applicant applying on the ground of age or disability"). You question whether
the term "disability" as used on the mail-in ballot application means only the "sickness or physical
condition" in subsection 82.002(a), or whether it also includes definitions of disability from other
statutes. Request Letter.

        The Texas Secretary of State ("SOS") is the entity tasked with administering and applying
section 82.002. See TEX. ELEC. CODE ANN. § 31.003 (West 2010) (requiring SOS to "obtain and
maintain uniformity in the application, operation, and interpretation of' state election laws). In
briefing submitted in response to your request, SOS states that "section 82.002 sets out the
appropriate standard" for mail-in voting based on a disability, such that "a voter should believe
that they have a sickness or condition which prevents them from voting by personal appearance
without assistance or without injuring their health."2


         1
          Letter from Honorable W. Coty Siegert, Robertson Cnty. & Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. (Sept. 11, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").

        2
          Brieffrom Keith Ingram, Dir. of Elections, Tex. Sec'y of State at 1 (Oct. 1, 2014) (on file with Op. Comm.).
A person's qualification to cast a vote by mail in an election may be subject to challenge. Tiller, 974 S.W.2d at 775
The Honorable W. Coty Siegert - Page 2                       (KP-0009)



        The manner and procedure of casting absentee ballots, which includes mail-in ballots, "is
mandatory and directed by statutory requirements." Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex.
App.-San Antonio 1998, pet. dism'd w.o.j.). When construing a statute, a court will focus on the
statute's plain language, which is the best indicator of legislative intent. Zanchi v. Lane, 408
S.W.3d 373, 376 (Tex. 2013). A reviewing court will defer to an agency's interpretation of a
statute only if the statute is ambiguous, provided that the agency's interpretation is reasonable and
does not conflict with the plain language of the statute. TracFone Wireless, Inc. v. Comm 'n on
State Emergency Commc'ns, 397 S.W.3d 173, 182 (Tex. 2013).

         The plain language of section 82.002 does not require that a person satisfy any specific
definition or standard of "disability" outside of the Election Code in order to qualify to vote by
mail. The statute does, however, provide a clarifying but non-limiting example of a condition that
satisfies the expressed standard. See TEX. ELEC. CODE ANN. § 82.002(b) (West 2010) (providing
that "[e]xpected or likely confinement for childbirth on election day" would qualify one to vote
under subsection 82.002(a)).

        You refer to definitions of disability used by the Social Security Administration ("SSA")
and the United States Department of Veterans Affairs ("DVA"), two federal agencies that provide
services to disabled citizens. Request Letter. SSA and DV A use their own standards for
determining a person's disability for purposes of establishing eligibility for services. 3 Election
Code section 82.002 makes no reference to a determination of disability made by any state
governmental entity or federal agency. See TEX. ELEC. CODE ANN.§ 82.002 (West 2010); cf 42
U.S.C.A. § 12102 (West 2013) (defining "disability" for purposes of the Americans with
Disabilities Act). Nor does it condition or limit eligibility based on any such determination.
Further, while the disability standards used by SSA and DVA may differ from the standard
described under section 82.002, nothing indicates that the two are mutually exclusive for purposes
of mail-in voting eligibility. A person determined to be disabled by SSA, for example, would be
eligible to vote in an election by mail if the SSA disability constituted a "sickness or physical
condition that prevents the voter from appearing at the polling place on election day" as provided
under section 82.002. Id. § 82.002(a). In accordance with the plain language of section 82.002,
to be eligible for early voting by mail, a qualified voter need only satisfy the disability standard
established under section 82.002. Consistent with SOS's construction of the statute, a
determination of disability under a different standard or definition of "disability," standing alone,
is not determinative of a person's qualification for early mail-in voting under section 82.002.



("Votes are void and should not be counted if the evidence shows that procedural statutory requirements were not
followed in the casting of absentee ballots[.]"). Consequently, while proof of disability may not be necessary to apply
for a mail-in ballot, its production may be compelled if a voter's qualification for voting by mail is challenged in court.

         3
           The SSA uses the following definition of disability: "the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period ofnot less than 12 months ." 20 C.F.R. § 404.1505 (2014).
The DVA, by contrast, uses a specific disability rating schedule governed by 38 C.F.R. §§ 4.1--4.150 (2014).
The Honorable W. Coty Siegert - Page 3           (KP-0009)



                                      SUMMARY

                      To be eligible to vote early by mail based on a disability, a
              qualified voter must satisfy the standard established under section
              82.002 of the Election Code. A disability determination under a
              different standard or definition of"disability," standing alone, is not
              necessarily determinative of a person's qualification for early mail-
              in voting under section 82.002.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General
