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 electionsbe returnedwith 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:

"UnderArticle 3123 and Article 3128 of theRevised Statutes, should the ballot boxes used In primary electionsbe 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 electionprecinct5 of this State shall,within seventy-two hours after the closing of the polls in saidparty primary election,make returns to the Chairman of the County Executive Committee of their respectiveCounties. 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 shallaccount to the ExecutiveHonorable W. C. McClain, Page 2

Conrmittee

of the county. The County Chairman shall,within forty-eighthours after the votes have been canvassedby the County Executive Committee as provided inArticle 3124, Revised Civil Statutes of 1925 as amended by Chapter 275,Acts of theRegular Session of the Forty-first Legislature,mall to the State Chairman of their respectiveparties, completereturns as to the results of said party primary electionsas to the several State offices."

Article 3128 of the Statutes reads as follows:

"Ballotboxes after being used inprimary elections shallbe returned with theballots cast, or contained in eachbox as theywere deposited by the election judges, locked and sealed, to the county clerk,and, unless therebe a contest for a nomination inwhich fraud or illegality is charged, they shall be unlocked and unsealedby the county clerk and their contentadestroyedby the county clerk and the county judgewithout examination of any ballot, at the expiration of sixtydays after suchprimary election."

There is no conflictbetween these two statutes. Each of them shouldbe, 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'specificallymakes 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 shouldbe followed.

Article 3128 of the Statutes requires that "ballotboxes after being used in primary elections shallbe returnedwith the ballots cast, or containedHonorableW. C. McClain, Page 3 -.

In each box as they were depositedby the election judges, locked and sealed, to the County Clerk." It does not provide specificallywho shallmake 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'suse, but the ballot boxes, which can serve no purpose In the hands of the Committee shouldbe returned directly to the County Clerk.

It will be noted the statutemerely 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 saidwill have answered your question satisfactorily.

Yours very truly,

APPROVED JUL 15, 1940

Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL OS-MR-hep ATTORNEYGENERAL OF TEXAS

By /a/ Ocie Speer Ocie Speer Assistant

APPROVED OPINION COMMITTEE BY.BWB CHAIRMAN