THEATTOR~TYGENERAI. 

OF 7rEsAs 

Honorable Frank Briscoe 

District Attorney 

Harris County 

Houston, Texas 

Dear Sir: 

opinion No. ww-1075 

Re: Whether Articles 224 and 225 

of Vernon's Penal Code, in 

reference to 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 certain penalties applying to violation of the 

election laws. Paragraph one of your letter states as follows: 

"This office has had several complaints that 

election officials have gone into voting machines 

with voters behind the closed curtain, and that 

they had turned the levers for the voters. The 

voters in these cases were 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 conduct of elections or primary elections, shall 

so far as practicable, wly~ to the conduct of elections 

and primary elections whe: 

unless herein othe: 

revoting machines are used, 

rwise provided. . ." (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 assistance be given a voter in preparing his ballot 

except when a voter is unable to prepare the same himself because of some bodily infirmity such as renders 
Hon. Frank Briscoe, Page 2 NW-1075) 

him physically unable 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 sworn that they will 

not suggest by word or sign or gesture how such 

voter shall vote, and that they will confine their 

assistance to answering his questions, to naming 

candidates and the political parties 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 

language how he wishes to vote, and no judge of the 

election shall use any other than the English 

language in aiding the voter, or in performing any 

of his duties as such judge, and in all cases where 

assistance is given hereunder, two judges of the 

election shall assist such voter, they having been 

first sworn that they will not suggest by word. siw 

or gesture,-how such-voter shall v&e, that they will 

confine their assistance to answering his questions 

in the English language, to naming candidates and if 

the voting be at a general election to naming the 

parties to which such candidates belong and that they 

will prepare the ballot as such voter directs, in the 

English language. If the election be a general election, the judges who assist such voter shall be of 

different political parties, if there be such judges 

present, and if the election be a primary election, a 

supervisor, or supervisors may be present when the 

assistance herein permitted is being given, but such 

supervisor must remain silent except in cases of irregularity or violation of this law. Any judge or 

other officer of an election who shall violate any 

provision of this article shall be 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 twelve months, or both." (Emphasis added.) 

Article 225, V.P.C., provides as follows: 

"Any judge or other officer at an election who 

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 unable to 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 election who in assisting a voter so incapacitated, or over sixty years 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." 

(Emphasis added.) 

At the outset it should be observed that Articles 224 and 225 

of the Penal Code are not in every respect consistent with 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 infirmity rendering the voter physically unable to write or to 

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

or to see (Section 15 of Article 7.14). Assistance rendered to voters 

over sixty years 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, formerly permitted assistance to voters over sixty years old who were unable to read and write, 

but this provision was deleted when Article 3010 was carried into the 

Election Code of 1951, without a corresponding change in Articles 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 its provisions shall invalidate the ballot, but it does not 

contain any criminal penalty for assistance which is prohibited by its 

provisions. The only penal statutes relating to this subject are Articles 

224 and 225 of the Penal Code. Although the Election Code is more restrictive than the Penal Code on the classes of voters who may be assisted, 

this fact does not 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 conflict herewith 

are repealed in so far as such laws are in actual 

conflict with the provisions of this code and in 
Hon. Frank Briscoe, Page 4 MJ-1075) 

case of such conflict the provisions of this code 

shall control and be effective. . ." 

The acts which are made an offense under the Penal Cods are 

also prohibited by the Election Code, and consequently these penal provisions prescribing an offense would not come within this provision for 

repeal of laws in actual conflict with 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& shall be 

construed as repealing or in any way affecting the 

legality of any penal provision of the existing law; 

. . . fl (Emphasis added.) 

In EX parte Sanford, 163 Tex.Crim. 160, 289 S.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 preparing his ballot. 

From a careful examination of their provisions, we fail to find any 

language that could be construed to define the ballot or voting in such 

a manner as to restrict the method to be used in casting the 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 lawful means of casting 

a ballot. Wood v. State, 133 Tex. 110, 126 S.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 lawful means of voting In 

Texas. Nevertheless, the Legislature left the laws open to the use of 

any method which would accomplish au orderly and legal casting of the 

ballot, preserve the purity of such and the guarantees provided by 

Article VI, Section 4 of the Constitution of Texas. 
. . 

Hon. Frank Briscoe, Page 5 (WU-1075) 

Section 25 of Article 7.14 contains the following definition: 

"The list of candidates and offices and/or propositions to be voted for or against, used or to be 

used on the front of the voting machine shall be 

deemed official ballots for the purpose of precinct 

using machines." 

A very comprehensive discussion of the question of whether a voter is 

casting a "ballot" when he votes by means of a voting machine is found 

in the opinion of the Supreme Court in Wood v. State, supra. From the 

opinion we quote the following: 

"However, since we 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 case must 

be reversed and remanded, we find it necessary, in 

view of another trial, to decide the constitutionality 

of these voting machines. The constitutional provision 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 regulations as may be 

necessary to detect and punish fraud, and preserve the 

purity of the ballot box and the Legislature may provide by law for the registration of all voters in all 

cities containing a population of ten thousand inhabitants or more.' 

"It will be noted that the constitutional provision 

just quoted in effect contains four distinct provisions. The first two of these provisions are mandatory. The four provisions referred to are as follows: 

II . . . 

"The first requirement of the above constitut~ional 

provision is that in all elections by the people the 

vote shall be by ballot. We think that this provision 

simply means that the voter in all elections shall be 

accorded a secret vote or ballot. [Citing authorities.] 

It is conclusive that this machine accords a secret 

ballot. It is therefore not unconsitutional on that 

score. " 

Articles 224 and 225 assess a penalty against "any judge or 

other officer" of an election who renders assistance in violation of the 
Hon. Frank Briscoe, Page 6 (WW-1075) 

provisions. Section 24 of Article 7.14 provides for the appointment of 

a presiding officer and a certain number of clerks as election officers 

in precincts where voting machines are used. This section also provides for the appointment of watchers, who, by Section 25 of Article 

7.14, are defined as officials of the election. 

Your request refers to a situation where "elections officials" 

have gone into voting machines and turned the levers to vote for the 

voter. "Officials" are identified in the preceding paragraph. Our 

opinion is directed to the proposition as to whether the penal provisions of Articles 224 and 225 are applicable In precincts where 

voting machines are used. We must approach the question by trying 

to determine the intent of the Legislature when it authorized voting 

machines as a lawful means for casting a ballot, keeping in view at 

all times the old law, the evil and the remedy. Section 23 of Article 

7.14 of the Election Code makes all other laws applicable to elections 

where voting machines are used, obviously applying to penal statutes as 

well as others. We are therefore constrained to the view that Articles 

224 and 225 are valid existing laws and that the provisions thereof apply to the conduct of elections where voting machines are used, in that 

the voting machine "accords a . . . ballot" (Wood v. State, supra) and 

"the list of candidates and offices and/or propositions to be voted for 

or against, used or to be used on the front of the voting machine shall 

be deemed official ballots for the purpose ofprecinct using machines." 

Sec. 25 of Art. 7.14 of 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 precinct where voting machines are ueed who 

assists a voter contrary to the provisions of 

Articles 224 and 225 of the Penal Code may be 

prosecuted thereunder. 

Very truly yours, 

WILL WILSON. 

Attorney General of Texas 

Harris Toler 

Assistant Attorney General 

HT/br 
Hon. Frank Briscoe, Page 7 (WW-1075) 

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