PRICE  DANIEL
ATTORNEYCE:NERAL

                            September 19,      1952

         Hon. J. W. Simpson, Jr.       Opinion No. V-1524
         District Attorney
         Conroe, Texas                 Re :     Legality    of assisting
                                                a voter in preparing
                                                his ballot when the
                                                prospective    voter can-
         Dear Sir:                              not read or write.
                      You have requested      an opinion   on the fol-
         lowing    question:
                     Van any assistance  be given a
               voter in preparing his ballot where
               the prospective  voter cannot read or
               writmti
                     We understand your question to refer to
         illiterate   persons and not to persons who cannot read
         or write because of soae bodily infirmity.         Section 1
         of Article   VI, Constitution      of Texas and Section 33
         of the fiection    Code enumerate the c z asses of persons
         who are disqualified      to vote.    Under these constitu-
         tional and statutory     provisions,    illiteracy Is not
         msae a disqualification      to voting.
         147 S.W. 649 (Tex.Clv.App.       1912).     H-is
         no constitutional     requirement that llllter&e     voters
         be given assistance     In marking their ballots.
                     Statutory provlslon      for assistance to voter0
         is found in Section 95 of the        Election Code.  This sec-
         tion originated    as Section 82     of the Terre11 election
         Law (Acts 29th Leg,, 1st C.S.        1905, ch. 11, pe 520).
         As originally    enacted it read:
                      “Not more then one person at the
               same time shall be permitted to occupy
               any one compartment, voting booth or
               place prepared for a voter, except when
               a voter Is unable to prepare his ballot
               from inability   to read or write, or phys-
               ical aisabllity,   two juQes or an inter-
               preter    if he can not both reed end
               speak &he Bngllsh language, #hall arsist
                                                                             .




Hon. J. W. Simpson,                  Jr.,   page 2   (v-1524)


               him, they having been frrst  sworn that
               they will not suggest by word or sign
               or gesture how the voter shall vote*
               that they shall confine their assisi-
               anoe to answering his questions      to
               naming candidates   and the poliilcal
               parties to which ihey belong, ena that
               they will prepare his ballot as the
               voter himself shall direct.    . . .!I
                           The section    codified as Article 3003 me-
vised           Civil        Statutes i911, was amended in I918 fActs
y t,F o ;;t:         l 9
                            4th’C.S.   1918, ch. 30, p. 54) to read as
                 :
                   “Not more than one person at the
           same tilne shall be permitted to occupy
           any one compartment, voting booth or
           place prepared for a voter, nor shall
           any assistance    be given a voter In pre-
           paring his ballot,     except when a voter
           Is unable to prepare the same himself
           because of some bodily infirmity,       such
           as renders him physically      unable to
           write,    or is over sixty years of age,
           or has been a citizen      of the united
           States for 21 years and is unable to
           read and write,    in ,which cases two
           judges of such election      shall assist
           him , . .; and where any assistance       is
           rendered any voter In preparing his
           ballot,    other than the class herein ex-*
           cepted, the ballot of such voter shall
           not be.counted.     . . .I’
                           It was again amended In 1919 (Acts   36th Leg.,
B.S. 1919,                  ch. 55, p. 94) so as to read:
                  “Not more than one person at the
           same time shall be permitted to occupy
           any one ,compertment, voting booth or
           place prepared for a voter, nor shall
           any assistance   be given a voter in pre-
           paring his ballot,   except when a voter
           is unable to prepare the same himself
           because of some bodily infirmity,,   such
           as renders him physically   unable to
           write,   or is over sixty years of age
           and Is unable to read and write, In
,




    Hon. J. W. Simpson, Jr.,     page 3    (v-1524)


         which case two judges of such election
         shall assist him . . .; and where any
         assistance  Is rendered In preparing a
         ballot other ttian as herein allowed
         the ballot  shall not be counted, bui
         shall be void for all purposes.    . . .I’ .
              Under this amendment It was held In State v.
    Johnston, 238 S.W.2d 957 (Tex.Sup. 19511, that assist-
    ance to voters under 60 years of age because they
    could not read or write or because they were “not edu-
    cated” was Illegal.   Attorney General’s Opinion v-643
    (1948) held that ttelectlon  judges are not required or’ .
    permitted to mark or assist in marking the ballot of a
    person between the ages of 21 and 60 years, though such
    person be unable to mark his ballot because of llllter-
    aoy. I1
                Finally, the statute was further amended
    when it was carried into its present form from Article
    3010, Revised Civil Statutes 1925, as Section 95 of
    the Zlectlon   Code. It now reads:
                “Not more than one person at the
          game tine shall be permitted to occupy
          any one compartment, *voting booth- or
          place prepared for a voter, gor shall




          him . . . Where any assistance   is ren-
          dered In preparing a ballot other than
          as herein allowed, the ballot  shall not
          be counted, but shell be void for all
          purposes*   . . .I* (Emphasis added.)
                The effect   of each successive    amendment of
    the statute has been to restrict      assistance    to voters.
    Under the orlglnal     enactment in 1905 all voters who
    were unable to read or write were en t ltlea to essist-
    ante In marking their ballots.      From 1919 ur$il the
    effeotlve   date of the Texas Election Code on ~January
    1 1952, Illiteracy      was a ground for assistance     only
    where the voter was over 60 years old.         Section 95 of
    the Election Code deleted the provision        for assistance
Hon. J. W. Simpson, Jr.,      page 4   (V-1524)


to voters over 60 years of age who were unable to read
and write.  So, under the law es It now exists,  llllter-
loy is never a reason for rendering assistance  to a
voter In marking his ballot.
            You have suggested In your brief that Section
95 of the Election Code might mean that manual or physi-
cal assistance    cannot be given an Illiterate       voter, but
that election   officials     might read the ballot    to the
voter and point out the Individual        canaidates in the ver-
k:cue reoes so that the voter might know where and for
whom to cast his vote.        We do not think such a construc-
tion is possible.       Section 93 of the Election Code pro-
vides that the voter upon receiving        his ballot    shall
Immediately retire     to a voting booth..or a place prepared
for voting and there prepare his bal-lot.        .Section 95
prohibits   any person other than the’voter,.from       occupying
the booth except when the voter is “unable to prepare
the same himself because of some bodily infirmity,             such
as renders him physically       unable to write or to see.”
Thus It 1s seen that the statute not only prohibits             as-
sistance to an Illiterate       voter, but also prohibits       any
one else from being in his immediate presence while he
Is marking his ballot.        In view of this letter    prohlbl-
tion, it Is impossible       to give the statute the construc-
tion you have suggested,       even if there was doubt that
the prohibition    against assistance     to the Illiterate
voter would not of itself       make such assistance    Illegal.
           We appreciate  the seemlng incongruity    between
permitting en illiterate   person to caee l ballot and at
the same time prohibiting   him from receiving   assistance
in reading and marking the names thereon so that he may
express his choice meaningfully.     Rouever, the wisdom
of the law is for the consideration    of the Legislature.
As stated in      f v Du w        251 S.W. 298 301 (Tex.
Civ.App. 1923     “whkhe:  a wlie lau or not, ‘it is the
law end must
            Section 95 of the Eleotion Code provides that
any ballot   on rhleh Illegal      assistance    la rendered shall
be void.    Articles    224 and 225, Vernon’8 Penal Code, pro-
vide that election      officer8   who render assistance     except
as permitt8d    therein    shell be fined not less than $200
nor more than $500 or be confined in Jail for not less
than two nor mora than twelve months, or both.             It may be
noted that these penal statutes          have not, been amended
since the change in Section 95 of the Election Code ellmi-
natlug the provision       for assistance     to voters over 60
    ,   .


#



            Hon. J. W. Simpson, Jr.,    page 5    (v-1524)


            years of age who were unable to read and write.       A&
            though these two articles  of the Penal Code do not
            make It an offense   such assistance  Is nevertheless
            unlawful and bellois  of the assisted  voters cannot
            be counted,


                       Illiteracy    ia not a aisqu@ifioe-
                 tion $0 voting,    but voters who are
                 unable to read or ‘write may not receive
                 assistance     In marking their bellota    on
                 the ground of their Illiteracy.        Sec.
                 95, Texas Election Code.
            APPROVED:                             Yours very truly,
            J. C. Davis Jr*                         PRICE DANIEL
            County Affa&s’Divislon                Attorney General
            E. Jacobson
            Reviewing Assistant
            Charles D. Mathews                        Mary K. Wall
            Fir& Assistant                               Assistant
            MKM:wb
