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      Honorable Ben J. Dean.
      District Attorney’
      90th Judicial District of Texas
      Breckenridge,   Texas

      D&r   Sir:                             Opinion No. O-7069

                                             Re:    Absentee voting by veterans un-
                                                    der the provisions     of Art. VI,
                                                    Sec. .2a, Constitution    of Texas,
                                                    and Art. 2956, Revised Civil
                                                    Statutes of Texas

                   We have your recent    request    for an opinion which reads    in
      part as follows:

                   “Article  2956 R.S. with reference   to absentee voting,
            provides in sub-division    2 thereof that an elector who de-
            sires to vote by absentee ballot shall make an application
            which shall ‘be accompatiied by the poll tax receipt or ex-
            emption certificate   of the elector.’

                   “since a man recently  in service is not required to
            secure an exemption and the tax assessor-collector      should
            not issue one I should like to ask you the following question:

                    “When a service   man whose rights to vote is secured
            by the constitutional   amendment Section 2a, Article  VI of the
            Texas Constitution,   desires to vote by absentee ballot, in
            what manner is he to proceed in order to get an absentee
            ballot, since he does not have an exemption to send with his
            application for such ballot?”

                    1n our Opinion No. O-7034, copy of which is enclosed here-
      with, we carefully   considered   the effect of Art. VI, Sec. 2a. of the Con-
      stitution upon prior election laws, pointing out that this constitutional
      amendment was adopted after the last session of the Legislature          and that
      therefore  the Legislature    has not amended the old election statutes since
      its adoption.   in that opinion, although we did not discuss absentee voting,
      we held that a person who comes within the terms of the constitutional
      amendment,     and who is otherwise a,qualified    voter, is entitled to vote even
      though he has not paid a poll tax and has not obtained a certificate       of ex-
      emption, and even though his name does not appear on the list of voters
      prepared by the tax collector.      We further held, in that opinion that if a
      person who comes within the terms of the constitutional        amendment,     and
      who is otherwise a qualified voter, shows by his own oath that he is a
Hon. Ben J. Dean - Page 2




qualified voter, the election judges cannot legally              refuse    to accept   his
vote.   In discussing this question, we said:

              “Such a person is entitled to vote ‘in any election
       held under the authority of the laws of this Stats, during
       the time the United States is engaged in fighting a war,
       or within one year after the close of the calendar year
       in which said war is terminated,’    if he shows by his own
       oath (and in a city or town of 10,000 or more inhabitants,
       by the oath of a well-known   resident):

              “1. That at the time of the holding of such election
       he is, or within 18 months immediately    prior to the time
       of holding such election was, a member of the armed for-
       ces of the United States or of the Armed Force Reserve      of
       the United States, or of any branch or component part of
       such armed forces or Armed Force Reserve,        or the United
       States Maritime   Service or the United States Merchant
       Marine,; and

                “2. That he is subject to none of the disqualifications
       stated    in Art. VI, Sec. 1, of the Constitution of Texas; and

              “3. That he has attained the age of twenty-one  years
       and is a citizen of the United States and has resided in this
       State one year next preceding such election and the last six
       months within the district or county in which such person
       offers to vote.*’

                Art,   2956,   Revised   Civil   Statutes   of Texas.     provides   in part
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 can not appear at the poll
       plac~e in the election precinctof    his residence,  on the day of
       holding any general,     special, or primary election, may, never-
       theless,    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.

             “Subdivision   2. Such elector shall make application
      for an official ballot to the county clerk in writing signed
      by the elector,   or by a witness at the direction of said elec-
      tor in case of latter’s   inability to make such written appli-
      cation because of physical disability.      Such application shall
      be accompanied     by the poll tax receipt or exemption certifi-
      cate of the elector,   or, in lieu thereof, his affidavit in writ-
      ing that’sa-    has been lost or mislaid.     If the ground of
Hon. Ben J. Dean - Page 3




     application be sickness   or physical disability by reason of
     which the elector can not appear at the polling place on elec-
     tion day, a certificate of a duly licensed physician certify-
     ing as to such sickness   or physical disability shall acc~om-
     pany the application.

             ‘Subdivision   3. 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 making his personal appearance          be-
     fore the county clerk of the county of his residence         at his of-
     fice and delivering     to such clerk his application aforesaid.
     shall be entitled to receive from said clerk one official bal-
     lot which has been prepared in accordance          with law for use
     in such election, which ballot is then and there, in the office
     of said clerk of said county, and in the presenc’e of said clerk
     and of no other person, except the witness who is authorized
     to assist elector in certain cases as hereinafter         provided, to
     be marked by the elector,       or by said witness in case of physi-
     cal disability of elector,    so as to conceal the marking, and
     same shall, in the presence       of the clerk, be deposited in a
     ballot envelope furnished by said clerk. which envelope shall
     bear upon the face thereof the name, official title and post
     office address of such county clerk, and upon the other side
     a printed affidavit in substantially     the following forum, to be
     filled out and signed by the elector;      provided, however, that
     in case of the physical disability of elector preventing him
     from filling out and signing such affidavit, then the witness
     who assisted     the elector in marking his ballot shall fill out
     and sign affidavit for and in behalf of elector and shall also
     sign his, witness’ name as prescribed         in the following form:

      “State of

      “County     of

             “I,               , do solemnly    swear that I am a Resi-
     dent of Precinct No.           , in              County, and am
     lawfully entitled to vote at the election to be held in said pre-
     cinct on the         day of             I 19      ; that I am pre-
     vented from appearing at the polling plaxsaid            Precinct
     on the date of such election because of (illness),     (physical
     disability), (or because of absence from County),
     (elector to signify one of foregoing    reasons) that the en-
     closed ballot expresses    my wishes,    independent of any dicta-
     tion or undue persuasion    of any person; that I did not use any
Hon. Ben J. Dean - Page 4




     memorandum     or device   to aid me in the marking    of said bal-
     lot.


                                              “Srgnature   of elector


                                      “By:
                                      Name of witness who assisted
                                      elector in event of physical dis-
                                      ability.

            ‘Subdivision  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 application for
     a ballot as provided for in Subdivision 2 hereof, shall be en-
     titled to have his ballot cast at such an election on compli-
     ance with the following provisions:

             “The application,   including fifteen cents (15c) 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 provid-
     ed 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 presence    of a Notary Public or other per-
     sons 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 presence 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 elec-
     tor, or in case of physical disability,     then by the said wit-
     ness for and in behalf of said elector,      and certified by such
     officer and then mailed by said officer, postage prepaid, to
     the County Clerk.

              “Subdivision 5. 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 enclose same together with the elector’s     ap-
      plication and accompanying    papers, m a larger or carrrer
      envelope whrch shall be securely    sealed and endorsed with
      the name and official title of such clerk, and the words ‘this
      envelope contains an absentee ballot, and must be opened
      only at the polls on election day,’ and the clerk shall forth-
Hon.   Ben J. Dean - Page 5




       with mail same., or ;deliver it in .pe.rson, to, the, presiding
       judge of election,, or to~any,assist.a,nt judge of election,    in
       said precinct.

              ‘,knd ballots mailed out’bythe  county clerk within
       the legal time, but not received back by him on or before
       the third day prior to the election on the day of election,
       shall not be voted, but shall remain in the custody of the
       county clerk during the thirty (30) day period provided in
       Subdivision 6.

               “Subdivision   6. On the day of such election, and in
       the presence    of the election officers,     and the supervisors,
       if any, one of the judges of election shall, between the hours
       of 2:00 and 3:00 o’clock open the carrier          envelope only, an-
       nounce the elector’s     name and compare the signature upon
       the application with the signature upon the affidavit on the
       ballot envelope.     In case the election board finds the affi-
       davits duly executed, that the signatures         correspond,      that
       fhe applicant LS a duly, qualified elector of the precmct,            and
       that he has not voted in person at said election, they shall
       open the envelope 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 elec-
       tor’s name in the poll list the same as if he had been pres-
       ent and voted in person.       If the ballot be challenged by any
       election officer,    supervisor,    party challenger,      or other per-
       son, the grounds of challenge shall be heard and decided ac-
       c~ordmg to law, including the consideration          of any affidavits
       submitted in support of or against such challenge.              If the bal-
       lot 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 %ejected,’ and all rejected ballots shall be enclosed,
       securely   sealed, in an envelope on which words ‘rejected ab-
       sentee 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 miLMer as
       provided for the return and preservation           of official ballots
       voted at such election.      In all cases, the application poll tax
       receipt or exemption certificate,        ballot envelope and the af-
       fidavits and certificates     accompanymg       same shall be re-
       turned by the offmers      of election to the county clerk who
        shall keep all such papers except poll tax receipts and ex-
       emption certificates     for one (1) year and shall return poll
       tax receipts and exemption certificafes          to the voter at any
Hon. Ben J. Dean - Page 6




      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
      longer thereafter as any Court or reviewing authority may
      direct.




             “Subdivision   10. The county clerks,       their deputies
      and officers acting under this Article       shall be consrdered
      as Judges or officers    of election within the scope of Arti-
      cles 215 to 231, inclusive,    of the Penal Code of Texas, and
      all amendments     thereto, and be pumshable as in sard Ar-
      ticles respectively,   provided in the case of judges or offi-
      cers of election.”    (Emphasis    supplied)

               Your request presents the problem of determining        the effect
of the constitutional  amendment upon the above-quoted      provisions      of Art.
2956.    Although we have found no court decisions    construing    the consti-
tutional amendment,     the decisions hereinafter discussed    illustrate    the
liberality with which the courts have interpreted    the provisions      of Art.
2956.

            In the case of Stratton v. Hall, 90 S.W. (2d) 865 (El Paso Civ.
App. 1936), it was held that absentee ballots could not be disregarded    be-
cause of non-compliance   with Article  2956.  In its opinion, the Court said:

              “It appears to be well settled that in the absence of a
      statute prohibiting the counting of ballots because of irregu-
      larities either in preparing or casting, and in the absence of
      fraud or of a showing that the returns were changed or tam’-
      pared with, ballots cast by qualified voters should be counted.
      Hooker et al. v. Foster et al.    (Tex. Civ. App.) I9 S.W. (2d)
      911; Ramsay v. Wilhelm (Tex. Civ. App.) 52 S.W. (2d) 757
      (writ refused).”

             In Lee v. Wbitehead.  182 S.W. (2d) 745 (San Antonio Civ,App.
1944) it was held that an absentee ballot was properly counted, although
not accompanied   by the required application and affidavit of the voter as
required by Article 2956, where it was apparent that such omission was
due to no failure on the part of the voter.

            In State v. Martin,,    186 S.W.   (2d) 111 (Amarillo   Civ. App.   1945).
the Court said:

             “Article 2956 of the statutes contains provisions      for
      absentee voting and regulations    governing the same.      . . .
      The detailed allegations   contained in plaintiff’s petition al-
      leged noncompliance    with a number of these provisions.
                                                         h




Hon. Ben J. Dean - Page      7
                                       .




        The statute does not provide that in the case of violation
        of any of the provisions  alleged by appellant the ballots
        shall not be counted. . .

                ”. . . Should the Legislature in its wisdom see fit
        to provide that for any or all of such irregularities    as
        alleged by appellant, an absentee ballot otherwise valid,
        should not be counted, that is within its province,   but
        the courts of Texas have throughout the years liberally
        construed the statutory regulations    affecting the right
        of a’voter freely to cast his vote in the expression    of his
        free choice at an election and, in the absence of statu-
        tory command, will not disfranchise      him.”

              It should be noted that subdivision 10 of Art. 2956, quoted
 above, provides that county clerks shall be considered     as election judges
within the scope of Arts. 215 to 231, inclusive,   of the Penal Code of Texas.
hart. 217, Penal Code of Texas, which is one of the statutes referred to,
 provides that:

               ,‘Any judge of any election who shall refuse to re-
        ceive the vote of any qualified elector who, when his vote
        is objected to, shows by his own oath that he is entitled
        to vote, or who shall refuse to deliver an official ballot
        to one entitled to vote under the law, or who shall wilful-
        ly refuse to receive a ballot after one entitled to vote has
        legally folded and returned same, shall be fined not to ex-
        ceed five hundred dollars.”

               In our opinion, the constitutional amendment nullifies and
renders inapplicable,     as to persons who qualify thereunder,  all provi-
 sions of Art. 2956 relating to poll tax receipts and exemption certifi-
cates.   Otherwise,   the amendment would be meaningless      and of no ef-
fect.   Furthermore,    it is clear from the cases cited above that failure
to comply with all of the terms of this statute will not disfranchise    a
qualified voter.

               If a person swears falsely as to his qualifications,    or votes
when    he knows that he is -not a qualified voter, or votes more than once,
he is   subject to criminal prosecution.    Arts. 232, 234, 236, and 2,41, Penal
Code    of Texas.   And, upon the trial of a contested election,   fraudulent
votes   are not counted.   Art. 3053, Revised Civil Statutes of Texas.

                In our opinion, an absentee ballot cast by a person who quali-
fies under the constitutional     amendment may be counted although not ac-
companied by a poll tax receipt, an exem-           certificate,   or an affidavit.
However, the voter, in order to preclude any question as to his qualifica-
tions, may submit an affidavit, or statement under oath, setting forth his
qualifications.     In the absence of such a statement,    neither the county
Hon. Ben J. Dean - Page              8




clerk nor the election judges, in case of challenge,  would be legally
bound to accept the ballot.  But if the voter’s statement under oath shows
%hXlie is entitled to vote, his ballot must be accepted; and refusal to
receive it would violate Art. 217 of the Penal Code of Texas.

            We see no legal objection to the use of a printed affidavit
form containing the requir~ed information,   which could be submitted by
the voter with his application  or with his ballot and transmitted by the
county clerk to the election officials.

Approved       Feb 23,    1946           Yours      very truly

/s/   Grover    Sellers                  ATTORNEY         GENERAL     OF TEXAS

Attorney    General       of Texas
                                         By   /s/    Raymond A. Lynch
                                                     Raymond A. Lynch
                                                            Assistant

RAL:jt/cm

enclosure




                                                                   Approved

                                                                   Opinion
                                                                  Committee

                                                                 By /s/  BWB
                                                                   Chairman
