Untitled Texas Attorney General Opinion ( 1942 )

E NEY GENE
AS
Honorable Edgar A. Maddox
County Attorney
Palo Pinto County
Palo Pinto, Texas
Dear Sir: Opinion No. O-4999
Re: May a,quallfled elector of Palo
Pinto County who is entitled to
vote by absentee ballot under
the general election 1aw.sof
Texas, vote by absentee ballot
at a local option election pro-
vided for by the Texas Liquor
Control Act?
Your telegram of November 30, 1942, requesting the
opinion of this department on the'above stated question reads
in part as follows:
"THE COMMISSIONERS' COURT OF PALO PINTO COUNTY
HAS ORDERED A LOCAL OPTION ELECTION TO BE HELD IN'
THIS COUNTY ON THE ~THDAY OF DECEMBER, A.D. 1942.
A QUESTION HAS ARISEN AS TO THE LEGALITY OF ABSEN-
TEE VOTING AT SUCH ELECTION, AND I SUBMIT THE FOL-
LOWING QUESTION TO YOU FOR YOUR OPINION: MAYA
QUALIFIED ELECTOR OF THIS COUNTY WHO IS EWl’ .----
T’l’T.Rr,
TO VOTE BY ABSENTEE
- BALLOT
-_.--- llNnl?R
_-.--_ THR
---- r.RNli!F
--.- lAL,ELEC-
TION LAWS OF TEXAS VOTE.BY ABSENTEE BALLOT AT A
LOCAL OPTION ELECTION,PROVIDED FOR THE TEXASLIQUOR
CONTROL ACT?
"ART:666-35, PENAL CODE PROVIDES IN PART:
'THE PRESIDING OFFICER OF EA& VOTING BOX SHALL
WRITE HIS,NAME ON THE BACK OF EACH BALLOT BEFORE
DELIVERING THE SAME TO THE.VOTER, NO.BALLOT.SHALL
BE~RECEIVEDOR COUNTED BY THE.OFFICERS OF ,SUcH.``
ELECTION THAT ISNOT AN. OFFICIAL.BALLPT, ,ANI,.TRAT
HAS NOT.THE NAME OF.THE PRESIDING.OFFICER OF SUCH
ELECTION.WRITTEN RIWEoN~.IN.~E~,HANDTdRTTINGOF.SIJCH
PRESIDING OFFICER A3 PROVIDED BY THIS ACT. ART.
666-36, PENAL CODE, PROVIDES IN PART: THE PROVI-
SIONS OF THE GENERAL ELECTION LAWS SHALL BE FOL-
LOWED IN CALLING AND CONDUCTING SAID ELECTION WHERE
NOT INCONSISTENT HEREWITH.' SUBDIVI.YION1. ART.
Honorable Edgar A. Maddox, page 2 o-4999
2956, REVISED CIVIL STATUTES: ANY QUALIFIED ELECT-~
OR OF THIS STATE WHO IS ABSENT FROM THE COUNTY OF
HIS REBIDENCE. 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, NEVERTHELEBB, 6AUSE HIS-VOTE TO BE CAST AT.
SUCH ELECTION IN THE PRECINCT OF HIS RESIDENCE BY
COMPLYING WITH ONE OR OTHER OF THE METHODS HEREIN-
AFTER PROVIDED FOR ABSENTEE VOTING.'
"BLONT V. MCMILLAN, 139 S.W. (2D) 893, HOLDS
THAT ART. 666-X. PENAL CODE CONTROIS AND IS HANDA-
TORY, OVER THE GENERAL ELECTION LAWS. HOWEVERTHE
POINT AT ISSUE WAS NOT INVOLVED. . . . .'
Articles 666-32 -'i666-40a, Vernon's Annotated-Penal
Code.are the statutes pertaining to local option'electlons,as
contafned in the Texas Liquor Control Act. Article 666-36,
Vernon's Annotated Penal Code provides,
"The officers holding such election shall,
In all respects not herein specified, conform to
the general electionslaws In force regulating
elections and after the polls are closed proceed
to count the votes and within three (3) days
thereafter make due report of said election to
the aforesaid court. The provisions of the gen-
eral election laws shall be followed in calling
and conducting said election where not inconsistent
herewith."
Subdivision 1 of Article 2956, Vernon's Annotated Civil
Statutes provides.
"Any qualified elector of this State who Is
absent from the county of his residence, or be-
cause of sickness or physical disability cannot
appear at the poll place In the electionprecinct
of'his residence, on the day of holding any gen-
eral; special, or primary electi.on,'mayneverthg-
less, cause his vote to be cast at such an elec:
tion in the precinct of his residence by compliance
with one or another'of the methods hereinafter pro-
vided for absentee voting."
A'local option election is a special election authorized
by thenprovisions of the Penal Code heretofore mentioned,.'It"
will be noted that the foregoing provlsion of Article 2956”.6%;
pressly provides that any qualified elector of thisState who'
is absent fr:omthe county of his residence, or because of sick-
Honorable Edgar A. Maddox, page 3 o-4999
ness or physical dlsabFllty 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 in the precinct of his
residence by compliance with one or other of the methods pro-
vlded by statute for absentee voting.
,We have carefully,consFdered the case of Blount ‘v.
McMillari,139 S.W. (2’)893, whEch is mentioned in yourinquiry
and have concluded that’this case has no application to the
question under consid,eration.
Itswas held In the case of Scherz v. Telfer; 7% S.W.
(2) 327’; that common school trustee elections are general elec-
tions, and are controlled by the speclflc statutesreIatUigto-
common school trustee elections (Articles 2745, ‘2746 and 2746a,
Revised Civil Statutes, 1925) Fn all matters covered by’the
provisions of those statutes, but In all matters~‘not”covered
thereby the provislons of the general election laws ‘are appli-
cable. We think that by the same reasoning, this tile-would
apply to local option elections. In none of the particular
statutes applicable to local option elections (the Articles of
the Penal Code heretofore mentloned) do we find any provision,
with reference to absentee voting and under ‘the rule annbuhced in
the Bcheri v. Telfer case, supra, the general electlon laws
would be applicable. Therefore, it Is our oplnlon that any
qualified elector of Palo Pinto County who is entitled to~‘vote
by ab,senteeballot under the general electton laws of Texas can
legally vote by absentee ballot at the local option election
mentioned in your inquiry, provided,,the provlsions of Article
2956, supra, are complied with.
This department has heretofore rendered several opinions
construing Article 2956, supra, and answering c’ertalnquestions
with reference to absentee voting in school trustee elections and
certain duties of the county clerk under said statute. Some of
these opinions atie opinions Nos.,O-499, 4700, 4897 and 4487-A,
copies of which are enclosed herewlth.
Trusting that the foregoing fully answers your inquiry,
we are
Honorable Edgar A. Maddox, page 4 o-4999
Yours very truly
ATTORNEY GENERAL OF TBXAB
By s/Ardell Wlllikms
Ardell Williams
Assistant
Aw:mp:wc
Encl.
APPROVED DEC 3, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By &WE Chairman