Texas Advisory Opinions March 19, 1962: AGO WW-1281 (March 19, 1962)

No. WW-1281 (1962).

Subdivision 2 of Article 5.05 of the Election Code of Texas states as follows:

"An elector desiring to vote absentee shall make written sworn application for an official ballot to the county clerk of the county of his residence, which application shall be signed by the elector, or by a witness at the direction of said elector in case of the latter's inability to make such written application because of physical disability. Such application shall state the ground on which the applicant is entitled to vote absentee and in case of an application by mail shall give the necessary information to enable the clerk to determine whether the applicant is entitled to vote by mail. Such application shall be 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. If the ground of application be sickness or physical disability by

reason of which the elector cannot appear at the polling place on election day, a certificate of a duly licensed physician or accredited Christian Science practitioner certifying as to such sickness or physical disability shall accompany the application, which certificate shall be in substantially the following form:

"This is to certify that I have personal knowledge of the physical condition of_____, and that because of sickness or physical disability,_____he will be unable to appear at the polling place for an election to be held on the _____day of _____, 19_____.

"Witness my hand at ______, Texas, this _____ day of _____, 19_____.

"Any person who requests a physician to execute a certificate for another person without having been directed by such other person to do so, and any physician who knowingly executes a certificate except upon the request of the voter named therein or upon the request of someone at the voter's direction, and any physician who knowingly delivers a certificate except by delivering it to the voter in person or by mailing it to the voter at his permanent residence address or the address at which he is temporarily living, shall be guilty of a misdemeanor and upon conviction shall be fined not more than Five Hundred Dollars ($500) or imprisoned in the county jail for not more than thirty (30) days, or both so fined and imprisoned.

The case of Morris v. Dunn , 164 S.W.2d 562 (Civ. App. 1942) concerned a situation wherein a candidate in a general election himself served as the Notary Public for citizens voting by absentee ballot. The argument was developed there that a party to an instrument, no matter how small or nominal is his interest therein, cannot act as a Notary Public. Nevertheless, the court held in this case that there was no express prohibition against the

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propriety of such an acknowledgment, or the counting of such ballots. This was, of course, in the absence of any fraud or undue influence.

The provision of the Election Code, quoted above, in providing for the application for absentee ballots to be sworn to, and in providing for the certificate of a duly licensed physician, contains no prohibition or language to indicate that the same person may not assist in both these capacities. Nor are we aware of any other provision or law requiring separate individuals for notarial acknowledgments and physician's certifications.

SUMMARY

A physician who is a Notary Public can acknowledge the application for an absentee ballot and then issue the disability certificate as a physician.