Gerald C. Mann 

A.n-rORNEI "ENnsiRAlHonorable W. C. McClain 

District Attorney 

Conroe, Texas 

Dear Mr. McClaln: Opinion Ro. O-2526 

Re: Under Articles 3123 and 

3128, R. S., should the 

ballot boxes used in 

primary elections be returned with the ballots 

cast to the County Clerk 

of the county or the 

Chairman of the County 

Executive Cormnittee of 

said county? 

We be to acknowledge receipt of your letter of 

date July 3, 19 & 0, propounding the following question for 

an opinion: 

"Under Article 3123 and Article 3128 of 

the Revised Statutes, should the ballot boxes used In primary elections be returned 

with the ballots cast to the County Clerk of 

the county?" 

Article 3123 referred to by you is as follows: 

"The presiding judges of party primary 

elections In all of the election precinct5 

of this State shall, within seventy-two 

hours after the closing of the polls in 

said party primary election, make returns 

to the Chairman of the County Executive Committee of their respective Counties. of the 

ballot boxes containing the ballots voted, 

locked and sealed, tally sheets, poll lists, 

return sheets, ballots mutilated and defaced, and ballots not voted, for which said 

County Chairman shall account to the Executive 
Honorable W. C. McClain, Page 2 

Conrmittee of the county. The County Chairman 

shall, within forty-eight hours after the 

votes have been canvassed by the County Executive Committee as provided in Article 3124, 

Revised Civil Statutes of 1925 as amended by 

Chapter 275, Acts of the Regular Session of 

the Forty-first Legislature, mall to the 

State Chairman of their respective parties, 

complete returns as to the results of said 

party primary elections as to the several 

State offices." 

Article 3128 of the Statutes reads as follows: 

"Ballot boxes after being used in primary 

elections shall be returned with the ballots 

cast, or contained in each box as they were 

deposited by the election judges, locked and 

sealed, to the county clerk, and, unless 

there be a contest for a nomination in which 

fraud or illegality is charged, they shall 

be unlocked and unsealed by the county clerk 

and their contenta destroyed by the county 

clerk and the county judge without examination of any ballot, at the expiration of 

sixty days after such primary election." 

There is no conflict between these two statutes. 

Each of them should be, and may be, we think, construed 

in such a way as that both may stand, and that being true, 

it Is our duty to construe them EiCCOPdingly. 

Article 3123 plainly and' specifically makes it 

the duty of the presiding judges of party primary elections to "make returns to the County Chairman of the 

County Executive Committee of their respective counties 

of the ballot boxes containing the ballots voted, locked 

and sealed, tally sheets, poll lists, return sheets," 

etc. It furthermore imposes upon the County Chairman 

the duty to account to the Executive Committee of the 

county for these things. This statute is specific, 

clear and unambiguous. It should be followed. 

Article 3128 of the Statutes requires that 

"ballot boxes after being used in primary elections 

shall be returned with the ballots cast, or contained 
Honorable W. C. McClain, Page 3 

-. 

In each box as they were deposited by the election judges, 

locked and sealed, to the County Clerk." It does not provide specifically who shall make such returns. We think 

the clear implication, however, Is that the County Chairman shall return them to the County Clerk. That officer 

will, of course, deliver to the Committee those instruments 

-- "tally sheets, poll lists, and return sheets" -- for 

the Committee's use, but the ballot boxes, which can serve 

no purpose In the hands of the Committee should be returned 

directly to the County Clerk. 

It will be noted the statute merely requires the 

Chairman "to account" to the Committee for all returns. He 

has performed that duty as to the ballot boxes when he delivers them to the County Clerk and reports that fact to 

the Executive Committee. 

We trust that what we have said will have answered 

your question satisfactorily. 

Yours very truly, 

APPROVED JUL 15, 1940 

Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

OS-MR-hep 

ATTORNEY GENERAL OF TEXAS 

By /a/ Ocie Speer 

Ocie Speer 

Assistant 

APPROVED 

OPINION 

COMMITTEE 

BY.BWB 

CHAIRMAN