Untitled Texas Attorney General Opinion

Tmm Amrsnv`` GENERAJ,
OF TEXAS
AUEPI-IN. TEXAS 78711
April 2, 1974
The Honorable Mark W. White,, Jr. Opinion No. H- 267
Secretary of State
Capitol Building Re: Absentee voting
Austin, Texas rights of prisoners
confined in county jails
Dear Secretary White:
On January 16, 1974, the United States Supreme Court issued its
decision in O’Brien v. Skinner, 42 U.S. L. W. 4151, holding invalid
laws of New York State governing absentee voting because those laws
arbitrarily discriminated between prisoners confined in the county of
their residence and those whose residence was in a different county
and thus unconstitutionally denied them equal protection of the law
guaranteed by the Fourteenth Amendment.
You have requested our opinion concerning the effect of that deci-
sion on the applicable election laws of Texas. Parenthetically, our
response in no respect applies to those prisoners who are disqualified
to vote by reason of previous felony convictions. Article 6, $ 1, Consti-
tution of Texas; Article 5.01, Election Code, V. T. C. S.
The applicable Texas Law authorized by Article 6, $ 2, of the Con-
stitution is found principally in Article 5.05, Election Code, V. T. C. S.
“Subdivision 1. Who may vote absentee. Any
qualified voter of this state who expects to be absent
from the county of his residence on the day of the
election, or who because of sickness, physical disa-
bility, or religious belief cannot appear at the polling
place in the election precinct of his residence on the
day of the election, may nevertheless cause his vote
to be cast at any election held in this state by com-
pliance with the applicable method herein provided
po 1251
The Honorable Mark W. White, Jr., page 2 (H-267)
for absentee voting. If a voter’s religious belief
prohibits him from voting during any part of the
time during which the polla are open on the day of
the election, he shall nevertheless be entitled to
vote absentee even though the prohibition does
not operate throughout the entire time that the
polls are open.
“Absentee voting shall be conducted by two
methods: (1) voting by personal appearance at the
clerk’s office, and (2) voting by mail. All voters
coming within the foregoing provisions of this sub-
division may vote by personal appearance at the
clerk’s office if they are able to make such appear-
ance within the period for absentee voting. The
following persons, and no other, may vote by mail:
“(i) Qualified voters who because of sickness
or physical disability, or because of religious beliefs,
cannot appear at the polling place on the day of the
election . . . .
“(ii) Qualified voters who, before the beginning
of the period for absentee voting, make application
for an absentee ballot on the ground of expec,ted ab-
sence from the county of their residence on election
day, and who expect to be absent from the comtyduring
the clerk’s regular office hours for the entire period
of absentee voting. The voter must state in his appli-
cation that he expects to be absent from the county of
his residence on election day and during the clerk’s
regular office houra for the entire period for absentee
voting. The application shall be made not more than
sixty days before the day of the election, and may be
mailed to the clerk or delivered to him by the voter in
person, but the clerk shall not furnish a ballot to the
voter by any method other than by mailing it to him.
p. 1252
.
The Honorable Mark W. White, Jr., page 3 (H-267)
Applications made under this paragraph may be
mailed either from within or withoutthe county
of the voter’s residence, but in every case the
ballot must be mailed to the voter at an address
outside the county. The ballot shall not be count-
ed unless the carrier envelope in which the ballot
ia returned to the clerk is postmarked,from a
point outside the county and the affidavit on the
carrier envelope is certified by an officer other
than an officer of the county of the voter’s residence.
. “(iii) Qualified voters who, after the beginning
of the period f.or absentee voting, apply for an absen-
tee ballot on the groundof expected absence from the
county and who are absent from such county at the
time of rpplyrng for an absentee ballot.and expect to
be abaent from such county during the clerk’s regu-
lar office hours for the remainder of the period for
absentee voting. . . .’ The clerk shall not mail a
ballot to any such voter unless the envelope in which
the application received ispostmarked from a point
outside the county, and the ballot must be mailed to
the voter at an address outside the county. The ballot
shall~not be counted unless the envelope in which the
application ie received and the carrier envelope in
which the ballot is returned to the clerk are each
postmarked from a point,outside the county and the
affidavit on the carrier envelope is ce,rtified by an
officer other than an officer of the county of the voter’s
residence. . . . ” (emphaeis added)
The New York statute considered in O’Brien wan limited in part, to
those who, “because of illness or physical disability” could not appear per-
sonally to vote. The lower New York courts construed “physical disability”
to include inability to go to the polls because of confinement. However, the
New York Court of Appeals rejected the argument and held that those lodged
in county.jails were not entitled to vote absentee.
ps 1253
.
The Honorable Mark W. White, Jr., page 4 (H-267)
Recognizing that the construction given the statutes by the lower
courts “may well have been a reasonable interpretation, ” the Supreme
Court felt itself bound by the construction given by the Court of A,ppeals
and concluded:
I’ We have no choice, therefore, but to hold that,
as construed, the New York statute denies appel-
lants the equal protection of the law guaranteed by
the Fourteenth Amendment. ” (42 U.S. L. W. at 4153)
The Texas statutes provide for absentee voting by a person phyei-
tally within the county of his residence on election day only, as set out
in Subdivision l(i), supra, when, because of sickness or physical dia-
ability or religious beliefs he cannot appear at the polling place on elec-
tion day. Texas courts have avoided giving a statute an interpretation
that is clearly unconstitutional, if some other reasonable interpretation
is possible. State v. City of Austin, 331 S.W.2d 737 (Tex. 1960);
Trustees of Independent School District v. Johnson County Democratic
Executive Committee, 52 S.W.2d 71 (Tex.1932); State v. Shoppers World,
&.. 380 S.W.2d 107 (Tex. 1964). We do not believe here, however,
that the statute can be construed in such a manner as to avoid a conclu-
sion of unconstitutionality.
Our statute goes further than the New York statute and provides
in Subdivision 2 of Article 5.05 of the Election Code, V. T. C. S., that,
if the ground of voting absentee is physical disability, the application for
the absentee ballot must be accompanied by a certificate of a physician,
a chiropractor or an accredited Christian Science practitioner certifying
to the physical disability. We are therefore precluded from interpreting
Article 5.05 to include confinement within the framework of “physical
disability. ”
We are of the opinion, therefore, that Article 5.05 does not per-
mit absentee voting by an otherwise qualified voter, who is confined in
the county jail of the county of his residence and, to that extent, is uncon-
stitutional under the holding of the O’Brien case. In other words, those
portions of Article 5.05 which prevent these voters from voting cannot be given
that effect, and theylike others in the jails, must be given the oppor-
tunity to cast their votes.
p. 1254
. .
The Honorable Mark W. White, Jr., page 5 (H-267)
SUMMARY
The provisions of Article 5.05 of the Election
Code preventing a qualified voter confined in the county
jail of the county of his residence from voting are
unconstitutional.
Very truly yours,
VAttorney General of Texas
APPROKED:
Opinion Committee
p. 1255