July 18,   1958



Hon. Ted Butler                    Opinion No. WW-47&A
County Attorney
Karnes County                      Re:   Legality of mailing a
Karnes City, Texas                       blank absentee ballot
                                         to an address within the
                                         county where the ground
                                         of application is ab-
                                         sence or expected absenoe
                                         from the county on elec-
Dear Mr. Butler:                         tion day.
            You have requested a olarification of Attorney
General's Opinion No. WW-474 on the following point: Is it
lawful for the county clerk to mall a blank absentee ballot
to a voter at an address within the county where the ground
of application is absence or expected absence on election day,
or must the ballot be mailed to the voter at an address out-
side the county?
            Opinion No. WW-474 holds that an elector who is
present in the county of his residence at the time of applying
for an absentee ballot, but who expects to be absent from the
county on election day and applies for an absentee ballot on
that ground, is entitled to vote an absentee ballot by com-
pliance with either of the two methods set out in Article 5.05
of Vernon's Texas Election Code. If he makes ap llcatlon by
mail, the procedure is governed by Subdivision E of Artiole
5.05, which provides in part:
            "The application 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, * + *"
This provision applies to the mailing of all absentee ballots,
either on the ground of illness or physical disability or on
the ground of absence (or expeoted absence) from the county.
The statute contains no further provision defining the clerk's
duty. It does not make any express requirement that ballots
                                                            .     .




Hon. Ted Butler, page 2 (WW-474A)

mailed to voters applying therefor on the ground of absence from
the county must be mailed to an address outside the county, and
we are unable to find any basis in the language of the statute
for reading this,requirement into it.
            So far as we have been able to find, the courts of
this State have not ruled on the question of whether a person
who is voting on the ground of expected absence but who is pres-
ent in the county at the time of application, may vote an ab-
sentee ballot by mail. The courts have held that he is entitled
to vote absentee, but the question of whether either method for
voting absentee is available to him has not been ruled on direct-
ly. However, holdings in two cases on related questions substan-
tiate our view that he may mail his application from a point
within the county and is entitled to have the blank ballot mailed
to him to an address within the county.
            In Roberts v. Dotson, 272 S.W.2d 164 (Tex.Civ.App.
1954), the court construed the provision of Subdivision 4 which
we have quoted above in the following language:
            "The statute does not direct that the bal-
       lot be sent to the elector's residence although
       this direction would be presumed in the absence
       of instructions to the contrary. Appellant con-
       cedes that the statute does nx necessarily re-
       quire that the ballot be mailed to the elector's
       residence when he says 'Contestant would not con-
       tend that a voter would not be entitled to have
       his absentee ballot mailed to an address which
       might suit his convenience."' (EmphasSs supplied.)
The construction was in connection with the legality of ballots
of physically disabled voters in answer to a contention that the
statute-had been violated because the ballots were mailed to an
address other than the voter's residence; but the holding is
nevertheless pertinent to the present inquiry since the statu-
tory provision Is applicable 'toall classes of absentee voters.
            In Eason v. Robertson, 288 s.w.2d 269 (Tex.Clv.App.
1956, error dism.), the contention was made that a pe'rsonvoting
absentee on the ground of absence from the county could not vote
by personal appearance at the clerk's office, and that it would
be necessary for him to go outside the county to apply for his
ballot by mail. The court rejected the contention in the fol-
lowing language:
            "Appellant in his brief and in oral argu-
       ment before us on submission further contended
       and stated in effect that if a person desired
Hon. Ted Butler, page 3 (WW-474A)

      to comply with the law governing absentee
      voting that it would be necessary for him to
      go outside of the county or state and make
      application by letter written outside of the
      county or state to the County Clerk of his
      county to the effect that he was out of the
      county or state and that he would be absent
      on election day and ask the Clerk to forward
      him the necessary papers so that he could
      file an absentee ballot, and in the event the
      voter's situation changed and he was in the
      county on election day that the vote cast by
      him as an absentee voter would be illegal and
      void. It is our view that appellant's conten-
      tion in this respect is without merit and an
      unreasonable interpretation to be placed upon
      the absentee voting law, and further we think
      it is condemned by the holding of our Supreme
      Court in Wood v. State, supra."
            You are advised ,thatin our opinion an elector
who applies for an absentee ballot on the ground of absence
or expected absence from the county of his residence on elec-
tion day is entitled to have a blank ballot mailed to him at
an address within the county of his residence if he so de-
sires, and that it is the clerk's duty to mail the ballot to
the address directed by the voter.
                           SUMMARY
            An elector who is present in the county of
       his residence during the period for absentee
       voting but who expects to be absent from the county
       on election day is entitled to vote absentee either
       by personal appearance at the clerk's office or by
       mail, and it is lawful for the clerk to mail a
       biank absentee ballot to him at an address within
       the county where proper application by mail is made
       therefor. There is no requirement that the ballot
       must be mailed to the voter at an address outside
       the county.
                                Very truly yours,
                                WILL WILSON
                                Attorney General of Texas




                                      Assistant
                                    -   .-




Hon. Ted Butler, page 4 (WW-474A)


APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman

F.C. Jack Goodman
J.C. Davis, Jr.

REVIEWED FOR THE ATTORNEY GENERAL
BY:
        W.V. Geppert