Untitled Texas Attorney General Opinion ( 1952 )

HE ATTOMNICY GENERAL
OF TEXAS
Auwrm ~~.TEXAS
PRICE DANIEL
ATTORNEYGENERAL
April 30, 1952
Hon. Boyd Barjenbruch Opinion No. V-1449.
County Attorney
Montague County Re: Validity of the action
Montague, Texas of the commissioners’
court in designating an
“election box” for ab-
Dear Sir: sentee voting.
In your request for an opinion of this of-
fice concerning the operation of certain provisions of
the Texas Election Code, which became effective on
January 1, 1952, you state that the Commissioners’ Court
of Montague County has created 25 election precincts,
and has also created Election Box No. 26 to meet the re-
quirements of Subdivision 6 of Section 37 of the Elec-
tion Code, which pertains to the casting of absentee
ballots.
Section 12 of the Election Code (Art. 2.04!
Vernon’s 4ection Code) authorizes the commissioners
court of each county to divide the county into conven-
ient election precincts, but limits the court’s action
in the following respect:
1 ’. . l No election precinct shall be
formed out of two (2) or more justice pre-
cincts or commissioners precincts, nor out
of the parts of two (2) or more justice pre-
cincts or commissioners precincts. . . .I’
Under Section 37 of the Election Code (Art.
5.05, Vernon’s Election Code), the method of casting
absentee ballots has been changed. Formerly, under Sub-
division 6 of Article 2956, V.C.S., the county clerk for-
warded the absentee ballots voted by electors of each
election precinct to the presiding judge of that precinct,
and one of the election judges cast the ballots by plac-
ing them in the regular voting box of the precinct in the
same manner as voters appearing at the polls clst t!leir
ballots. The absentee ballots were then counted along
with all other ballots. The procedure for casting and
counting absentee ballots under the present statute is
Hon. Boyd Bsrjenbruch, page 2 (v-1443)
described in Subdivision 6 of Section 37 for CountY-
wide elections and in Subdivision 9 for elections
which are less than county-wide. Subdivision 6 reads
as follows:
“The ballots cast in the office of the
county clerk shall be deposited when voted
In a ballot box locked with two (2) locks
the keys of one of which shall be kept dur-
ing the period of absentee voting by the
sheriff and the keys of the other by the
county clerk. At 1:OO’ p.m. on the day of
the election the ballots and the ballot en-
velopes which have been received by mail
shall be delivered by the county clerk to a
special canvassing board of three (3) or
more members named by the authority which
is authorized by law to name the presiding
judges of that election; this special elec-
tion board shall open the ballot boxes and
the carrier envelopes, announce the elec-
tor’s name and compare the signlture,upon
the application with the signature upon the
affidavit on the ballot envelope. In case
the election board finds the affidavits
duly executed, that the slgn&ures corre-
spond, that the applicant Is a duly quall-
fied elector of the precinct, and that he
has not voted in person at said election,
they shall open the envelope containing
the elector’s ballot in such manner as not
to deface or destroy the affldxvit thereon,
take out the ballot therein contained with-
out permitting same to be unfolded or exam-
ined and having endorsed the ballot in
like manner as other ballots are r~equired to
be endorsed, deposit the same in the proper
ballot box and enter the elector’s name in
the poll list the same as if he had been
present and voted in person. . . . This
special election board shall cast these ab-
sentee votes and then shall open the ballot
box and proceed to count and make out re-
turns of all ballots cast absentee In the
same way as is done at a regular polling
place. This special canvassing board shall
possess the same qualifications, be paid the
same wage, and be subject to the same laws
and penalties as regular election judges.
. . .”
Hon. Boyd .13arjcnbruch, page 3 (V-1449)
9
The questions which you present are the fol-
lowing :
“1. IS Section 37 Subdivision 6, in
conflict with Section 13 of the Election
Code?
“2 . IS the voting box No. 26 which
is created for absentee voting by the Com-
missioners’ Court of Montague County,
Texas, a valid voting box under Section 12
and Section 37, Subdivision 6 of the Elec-
tion Code?”
The ‘substance of the reasoning in the brief
accompanying your request Is that Election Box No. 26
is in fact the absentee precinct of Montague County.
You point out that absentee votes from all precincts
will be cast in this box and returns made from such box
as are made from the other 25 boxes, and it will be pre-
sided over by three or more persons who must meet the
requirements of election judges and are subject to the
same law and penalties as regular election judges. If
the designation of an election box for absentee voting
was tantamount to the creation of an election precinct,
then the boundaries of the precinct are coextensive with
the boundaries of Montague County and embrace four jus-
tice precincts and four commissioners’,precincts, con-
trary to the provisions of Section 12.
We have not been furnished with a copy of the
court’s order, but it would appear from the information
you have furnished us that the term “election box” in
the designation of an Election Box No. 26 was being used
as a synonym for llpolling place .‘I We do not think the
commissioners’ court was required to take any action
whatever in regard to defining an election precinct or a
polling place for absentee voting. The election pre-
cincts which the court is authorized to create under Aec-
tion 12 are those which are to be observed by voters who
appear at the polls on election day, and the purpose of
dividing the county into precincts is to fix the bounda-
ries of the territory which each polling place is to
serve. hut Section 37 of the Election Code unequivocally
provides for the casting of absentee ballots at the
county clerk’s office in county-wide elections and at the
regular polling place in each election precinct where the
election is less than county-wide. It was therefore un-
necessary for the commlssloners~ court to designate the
Hon. Boyd Barjenbruch, page 4 (V-1449)
polling place for casting absentee ballots in county-
wide elections or the territory which this Polling
place was to serve, since the statute Itself has al-
ready done SO.
While we do not think the commissioners1
court was authorized to define an “election precinct
for absentee votlng,l’ if this was the effect of its
order it was not in conflict with the absentee voting
statute, as it did not attempt to designate a differ-
ent polling place from that fixed by statute. Sec-
tion 37 does not In terms constitute the entire county
the “election precinct for absentee voting” in county-
wide elections, but this view of the effect of its pro-
visions Is not an unreasonable one. The prohibit Ion
in Section 12 against the formation of an election pre-
cinct out of two or more justice or commissioners’
precincts is not based upon any constitutional provi-
sion limiting the method of forming election precincts.
Consequently we think it may well be within the power
of the Legis i ature to prescribe a special election
precinct for absentee voting purposes. However, it is
unnecessary for us to determine in this opinion whether
that is the effect of the absentee voting provisions.
Since the Legislature itself has provided for the cast-
ing of absentee ballots in the clerk’s office, we’have
only to consider whether this provision can stand along-
side the general provisions of the Election Code regu-
lating the formation of election precincts, the desig-
nation of polling places, and the casting of ballots.
It is a’firmly established principle of stat-
utory construction that where an enactment contains a
specific provision which is at variance with a general
provision in the same act, the specific provision is
treated as an exception to the general and controls the
subject matter which comes within its terms. Lufkin v.
E;ttv of Galveston 63 Tex. 437 (1885);C t of A sti
Cahill 99 Texl 172, 88 S.W. 542 (190j+$Tfi+.
c”itv of Biownwood 176 S.W.2d 344 (Tex. Civ. A,J~. 19 3,
error ref .) . It hollows that the specific provisions
of the Election Code relating to absentee voting should
be treated as exceptions to other provisions regulating
balloting generally.
We have pointed out that in our opinion the
term “election box” In the court order was used in the
sense of “polling place.” It seems likely that the in-
tent of this portion of the order was merely to author-
ize the supplying of the ballot boxes required in
. 1
Hon. Boyd Bar jenbruch, page 5 (V-1449)
absentee voting and to provide the manner of their
identification. Section 70 of the rlection code
(Art. 7.05, Vernon’s Blection Code) provides for the
marking of ballot boxes in the election precincts
laid out by the commissloners~ court. Section 37
does not make specific provision for the marking of
ballot boxes used at the county clerk’s office in ab-
sentee voting. The purpose of the provision for the
marking of ballot boxes is to Identify the source of
the ballots which they contain, and so long as the
designation of “Election Box No. 26" is understood as
identifying boxes containing absentee ballots cast in
the office of the County clerk of Montague County, we
do not believe this description would be contrary to
any provision of the election law. This opinion is
not to be understood as holding that the designation
used by the commissioners’ court for the absentee
polling place must be followed. However, if that means
of identification is used, we are of the opinion that
it would be a sufficient compliance with the election
laws.
In absentee voting, the provisions of
Section 37 of the Election Code (Art. 5.05,
Vernon’s Election Code) relating to the
method of casting absentee ballots control
over general provisions in other sections
of the Uection Code.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE i):U IEL
County tiffairs Division Attorney General
E. Jacobson
Reviewing Assistant By 2b.y K&e
Charles D. Mathews Mary K. Wall
First Assistant assistant
MKW:wb