# THEATTOR~TYGENERAI. OF 7rEsAs

Honorable Frank Briscoe District Attorney Harris County Houston, Texas

Dear Sir: opinionNo.

# ww-1075

Re: Whether Articles 224 and

# 225 ofVernon's Penal Code, in referenceto aiding voters, apply to election officials where voting machines are used.
Your letter of May 11,

# 1961, requests the opinion of this Department relating to certainpenalties applying to violation of the election laws. Paragraph one of your letter states as follows:

"This office has had several complaints that election officialshave gone into voting machines with voters behind the closed curtain,and that they had turned the levers for the voters. The voters in these caseswere not incapacitated In any way.“
You are seeking our opinion as to whether or not the penal provisions of Articles 224 and 225, V.P.C., would apply in precincts where voting machines are used.

Section 23,Article 7.14, V.A.T.S., Election Code, provides in part as follows:

"The provisions of all other laws, relating to the conductof elections or primary elections, shall so far as practicable,wly~ to the conduct of elections and primary electionswhe: unless herein othe: revoting machines are used, rwiseprovided.
. ." (Emphasis added.) Article 224, V.P.C., is quoted as follows:
"Not more than one person at the same time shall be permitted to occupy more than one compartment, voting booth or place prepared for a voter, nor shall any assistancebe given a voter in preparing his ballot except when a voter is unable to prepare the samehimself because of some bodily infirmity such as rendersHon. Frank Briscoe, Page 2 

# NW-1075)

him physicallyunable to write, or is over sixty years of age and is unable to read and write, in which case two judges of such election shall assist him, they having been first swornthat they will not suggestby word or sign or gesture how such voter shallvote, and that they will confine their assistanceto answering his questions,to naming candidatesand the politicalparties to which they belong, and that they will prepare his ballot as such voter himself shall direct;provided that the voter must in every case explain in the English languagehow he wishes to vote, and no judge of the election shalluse any other than the English language in aiding the voter, or in performing any of his duties as such judge, and in all caseswhere assistance is given hereunder, two judges of the election shall assist such voter, they having been first sworn that they will not suggestby word. siw or gesture,-howsuch-voter shallv&e, that they will confinetheir assistance to answeringhis questions in the English language, to naming candidatesand if the voting be at a general electionto naming the parties to which such candidatesbelong and that they will prepare the ballot as suchvoter directs, in the English language. If the electionbe a general election, the judgeswho assist such voter shall be of differentpoliticalparties, if there be such judges present,and if the electionbe a primary election, a supervisor,or supervisorsmay be present when the assistanceherein permitted isbeing given, but such supervisormust remain silent except in cases of irregularityor violation of this law. Any judge or other officer of an electionwho shall violate any provisionof this article shallbe fined not less than two hundred nor more than five hundred dollars; or be confined in jail for not less than two nor more than twelvemonths, or both." (Emphasisadded.) Article 225,V.P.C., provides as follows: "Any judge or other officer at an electionwho assists any voter to prepare his ballot except when a voter Is unable to prepare the same on account of .,

Hon. Frank Brlscoe,Page 

### 3 (wu-1075)

blindness or some bodily Infirmity such as renders him unableto write, or is over sixty years of age, or who shall aid such voter by using any other than the English language, and any judge or other officer of an electionwho in assisting a voter so incapacitated, or over sixtyyears of age in the preparation of his or her ballot shall prepare the same otherwise than said voter shall direct in the English language shall be fined not less than $200.00 nor more than $500.00 or by confinement in jail not less than two nor more than twelve months, or both." (Emphasisadded.)
At the outset it should be observed that Articles 224 and 225 of the Penal Codeare not in every respect consistentwith the provisions of the Election Code relating to assistance to voters. The only ground upon which assistance is permitted in the Election Code is bodily infirmityrenderingthe voter physicallyunable to write or to see (Article

### 8.13)or physically unable to operate the voting machine or to see (Section 

### 15of Article 

### 7.14). Assistance rendered to voters over sixtyyears of age who are unable to read and write is not illegal under Articles 224 and 225 of the Penal Code, although it is unauthorized in the Election Code. This discrepancy is explained by the fact that Article 3010,Revised Civil Statutes of 1925, formerlypermitted assistance to voters over sixty years oldwho were unable to read and write, but this provisionwas deleted when Article 3010 was carried into the Election Code of 1951,without a correspondingchange inArticles 224 and 225 of the Penal Code. See Att'y. Gen. Op. V-1524 (1952).

The Election Code provides that assistance rendered in violation of itsprovisions shall invalidatethe ballot, but it does not contain any criminalpenalty for assistancewhich is prohibited by its provisions. The only penal statutes relating to this subject are Articles 224 and 

### 225of the Penal Code. Although the Election Code is more restrictivethan the Penal Code on the classes of voters who may be assisted, this fact doesnot prevent enforcement of the Penal Code provisions if they are still in effect.

The Election Code was enacted by Section 1 of Chapter 492, Acts of the 52nd Legislature,1951. Article 14.11 of the Election Code provides: "All laws and parts of laws in conflictherewith

are repealed in so far as such laws are in actual conflictwith the provisions of this code and in

### Hon.FrankBriscoe, Page4 MJ-1075)

case of such conflictthe provisions of this code shall control and be effective.
. ." The acts which are made an offense under the Penal Cods are also prohibitedby the Election Code, and consequentlythesepenal provisions prescribing an offensewould not come within this provision for repeal of laws in actual conflictwith the provisions of the Election Code, since there is no conflict on this point. Moreover, the provisions of the Penal Code were expressly saved from repeal by Section 2 of Chapter 492, which reads as follows:



### "Sec.2. That all elections and all laws relating to suffrage and parties, as found in Title 

### 50 of the Revised Civil Statutes of Texas of 1925, and all amendments thereto. be and the same are hereby rerrealed. provided, ho&er,that nothing in this A& shallbe construed as repealing or in any way affectingthe legality of any penal provision of the existing law;

. . . fl (Emphasisadded.)
In EX parte Sanford, 

### 163Tex.Crim. 

### 160,289S.W.2d 

### 776 (1956), the Court of Criminal Appeals held that the saving clause in Section 2 of Chapter 492 exempted the-articles of the Penal Code from the general repeal contained in Article 14.11 of the Election Code and left them in full force and effect.

We come, then, to the question of whether Articles 224 and 225 of the Penal Code apply in precinct6 where voting machines are used. These articles relate to assistance given a voter in preparinghis ballot. From a careful examination of their provisions,we fail to find any languagethat could be construedto define the ballot or voting in such a manner as to restrict the method to be used in castingthe ballot. The execution of the ballot could be by means of pencil, pen and ink, typewriter or other machines, Insofar as these articles are concerned,as no attempt was made by the Legislature to select the means to be employed in voting. Voting machines have been held to be a lawfulmeans of casting a ballot. Wood v. State, 

### 133Tex. 110, 

### 126S.W.2d 4 (1939];Reynolds V. Dallas County, 

### 203 S.W.2d 320 (Civ.App. 1947).

The last revision of Articles 224 and 225 was in 1919, long before the voting machine was adopted as a lawfulmeans of voting In Texas. Nevertheless, the Legislature left the laws open to the use of any methodwhich would accomplish au orderly and legal casting of the ballot, preserve the purity of such and the guaranteesprovidedby ArticleVI, Section 4 of the Constitution of Texas.. .

Hon. Frank Briscoe, Page 

### 5 (WU-1075)

Section 25 of Article 7.14 containsthe followingdefinition: "The list of candidatesand offices and/orpropositions to be voted for or against, used or to be used on the front of the voting machine shallbe deemed official ballots for the purpose of precinct using machines."
A very comprehensivediscussion of the question of whether a voter is casting a "ballot"when he votes by means of a votingmachine is found in the opinion of the Supreme Court in Wood v. State, supra. From the opinion we quote the following:

"However, sincewe do not agree with the holding, of the Court of Civil Appeals in regard to this matter, and in view of the fact that this casemust be reversed and remanded,we find it necessary, in view of another trial, to decide the constitutionality of these voting machines. The constitutionalprovision in question reads as follows: 'Sec.4. In all elections by the people the vote shall be by ballot and the Legislature shallprovidefor the numbering of tickets and make such other regulationsas may be necessary to detect and punish fraud, and preserve the purity of the ballot box and the Legislaturemay provide by law for the registration of all voters in all cities containinga population of ten thousand inhabitants or more.'
"Itwill be noted that the constitutionalprovision just quoted in effect contains four distinctprovisions. The first two of these provisionsare mandatory. The four provisions referred to are as follows: II

. . . "The first requirement of the above constitut~ional provision is that in all electionsby the people the vote shallbe by ballot. We think that this provision simplymeans that the voter in all electionsshallbe accorded a secret vote or ballot. [Citingauthorities.] It is conclusivethat this machine accordsa secret ballot. It is therefore not unconsitutionalon that score." Articles 224 and 

### 225assess a penalty against "any judge or other officer" of an electionwho renders assistancein violation of theHon. Frank Briscoe,Page 

### 6 (WW-1075)

provisions. Section 24 of Article 

### 7.14provides for the appointment of a presiding officer and a certain number of clerksas election officers in precinctswhere voting machines are used. This sectionalso provides for the appointment of watchers, who, by Section25 of Article 

### 7.14,are definedas officials of the election.

Your request refers to a situationwhere "electionsofficials" have gone intovoting machines and turned the leversto vote for the voter. "Officials"are identified in the precedingparagraph. Our opinion is directedto the proposition as to whether the penal provisions of Articles 224 and 

### 225are applicable In precinctswhere voting machinesare used. We must approachthe questionby trying to determinethe intent of the Legislaturewhen it authorizedvoting machines as a lawfulmeans for casting a ballot, keeping in view at all times the old law, the evil and the remedy. Section 23 of Article 

### 7.14of the Election Code makes all other laws applicableto elections where votingmachines are used, obviously applyingto penal statutes as well as others. We are therefore constrainedto the view that Articles 224 and 225 are valid existing laws and that the provisionsthereof apply to the conduct of electionswhere voting machinesare used, in that the votingmachine "accordsa . . . ballot" (Woodv. State, supra) and "the list of candidatesand offices and/or propositionsto be voted for or against,used or to be used on the front of the votingmachine shall be deemed officialballots for the purpose ofprecinct using machines." Sec. 25 ofArt. 

### 7.14of the Election Code.

SUMMARY
The use of a voting machine, in counties where voting machines are used, constitutes a valid "ballot", and an election officer in a precinctwhere voting machines are ueedwho assists a voter contrary to the provisionsof Articles 224 and 225 of the Penal Code may be prosecuted thereunder. Very truly yours,
WILL WILSON. Attorney General of Texas

Harris Toler AssistantAttorney General HT/brHon. Frank Briscoe, Page 

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APPROVED:
OPINION COMMl3'TEE W. V. Geppert, Chairman Mary K. Wall Elmer McVey Leon Pesek Fred Werkenthin
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt