Untitled Texas Attorney General Opinion ( 1958 )

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