OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN , u 

Honorwble Joe J. Fisher 

Mstrlct Attorney 

Orange, Texa8 

near Sir1 opl.nlon wo. Q-7453 

Rer Interpretation of 

Penal Code as to 

canvass of an elec 

This acknowledges your 1 

is in part as fol~ovs: 

I would like an 

eve that the 

st Sor the canlly m$scall‘ed a ~NIIIinto the voting 

g this ,evi&ence to 

predioated’um in? 

does not specifically name the grand 

to go lnto’the bal&ot boxes, 

court may cause to .be counted 

cast in-any election. 

Section 

1905 (Arkcle 227, 

153, page 558, Acts of the Texas 

Chapter .4, Title 6, 

Legislature, 

Penal Code, 1925) is a8 

rollowe I 

. 
Eonorable Joe J. Fisher, page 2 

‘Any judge or clerk of an election, chaI.rman or 

member of a party executive committee, or ofricer of 

a primary special or general election, vho vIlltul1~ 

makes any false canvass of the votes aast at such 

election, or a false stateuent of the result of a 

canvass of the ballot8 cast shall be confined In the 

penite~tlary not less than tvo nor more than five 

years. 

The first construction OS this act by the Court of 

;;a~Inal Appeala was In the case of Beach v. State, 171 S. Y. J 

staies, a?aong vhiah vere Ex Part6 Droun, 97 Cal, 83, 31 P. ‘840, 

f’he Court after revleving numerous authorities from other J 

and Ex Parte Arnold, 123 MO. 256. 30 S. W. 768. held that ballot 

boxes cannot 

nal casea. 

be Op8&8d br the bailits used is ivldence in orlml~ 

In 1933 the Court of CrImInal Appeals again construed 

Artlale 227,’ P. C. 19255r In the case of Carpoll v. State, 61 S. W. 

(26) 1005, where the ballot boxes had been turned over to the 

grand jury and examined by it. After the lndlctment va8 returned, 

tho ballot boxes YSW agab Introduced In ovidenoe upon tho trLs1 

before the jury. 

After oltlng the case cf Beach v. State, supre, and re-, . 

vlevlng to the authorities therein &ted, the Court oi CrImInal 

Appeal8 held that the aonvlatlon oould not be sustained for the 

reason that the ballot boxer vere Improperly a&&ted In ovidenoe 

in violation of &tic18 7270, C. C. P. 1925. The Court hold in 

part a1 r0110vs: 

“From the case OS Bx parte Brown, 97 Cal. 83, 

31 P. 840, 842, the folloving quotation is taken: 

‘We are aaked by couneel hov the declared Intention 

of the legislature to punish frauds by oleatlon OSficers can be reconciled ulth an Intention to prevent 

the use of the best mesns of proving suoh frauds. l l 

This railure of provision, houever, if, inde,ed, there 

vaa suoh fallwe, cannot be remedied by the courts, 

but must be left to the legislature itseli for amendmat. If It Ia thought neceasarJ to make the ballots 

av&iI.ilabIe as evidence in orlminal DroCeedInns~ the 

J’ 
. . 

. 

Honorable Joe J. Flrhor, page 3 

lealslature can do 80, under such llmltatlons and restrictions as asp be deenad essential to their lntegrltjt. 

the courts cannot open them for in ti Ith t 

destroying all safeguards, except ~ieiaci?&itIc$ar 

judge iho-may order-them into court shall see proper 

to apply; nor without ImpaIrIn& In all cases, and peasib19 destroying 1~ taany, their value as evidence for 

the only purpose for vhlch the law has directed their 

preservation.’ 

“The vlevs o? this court are In accord vlth the 

remarks quoted above. (iQapbasIs oura) 

It vi11 be noted from a reference to the emphaslzed portlon of the opinion just quoted the Court of CrIdnal Appeala stated 

that the only way to make ballots available as evldenae In orimIna1 

proceedings must be through an act of the Legislaturej and pursuant 

thereto the 48th Legislature Ln 1943 at Its regular session amended 

Article 227 by the provisions of House Bill 44, being Chapter 296, 

page 438, Act.8 of the 48th Le&slature, by addIng the iolloving 

rentenao to Artlole 227 as It then existed: 

II In all such cases, the Court shall have 

authoriiy’tg unseal and open the ballot boxes, and the 

Court may count, or cause to be counted under its dlrection. the hallote cast in any election; hovever, In 

so doing the Court shall exercise due diligence to proserve the secrecy OS the ballots, and upon aompletlon 

of such count the said ballot boxes vlth their original 

contents &all be resealed and redelivered to the County 

Clerk vho shall keep the same until ordered by the Court 

to destroy tho same.m (Emphasis ours) 

The emergency clause reads In part as follovsl 

“The fact that the present lav provides a penalty 

for such violations, but makes no provision for the Intmduction of the ball ts In e idence r ndms buch 1 Y 

‘inoperative and ineffeztive. axd create: an enerzenci. 

. . . (Emphasis oum) 

It Is a fundamental rule of statutory construction that 

where ambiguous language Is contained in the statute, the alroumstaances 

attending Its passage vhlah bear upon the leglalatlvo Intent, and the 
Honorable Joe J. Fisher, page 4 

state of the law at the time of Its enactment, the conditions deslgnated to be dealt vlth, the good intended to be accomplished, and 

the mlsohlef sought to be reuedled shall all be t&en into conslderetlon. 

Judge Sharp, speaking for the Supreme Court of Texas In 

the case of &ignolIa Petroleum Company v. Walker, 83 9. W. (24) 929, J’ 

held as fqllovsr 

“No Inflexible rule can be announced for the construction of statutes. However, the donlnant rule to 

be observed Is to give effect to the Intention of the 

Lcglsla ture . Generally the Intent and meantng Is obtained primarily f’rom tho language of the statute. In” 

arriving at the Intent and purpose of the law, It Is 

proper to consider the history of the subject matter 

involved, the end to be attained, th& miachlof to be 

remedied, and the Durgoses to be aocomDlished. . ,‘I 

wphasls ours) 

The St&ate of the lav at the tiue of the 1943 auen&ent 

Is well evidenced b the language of the Court in Its opinions in 

Beach v, State and E arroll v. state, supra., to the effect that the 

ballot boxes could not be opened, and the ballots could not be used 

as evidence In criminal trials for the reason that no legiSl6tiVe 

provision had been made therefor; and to penalt their use would be 

a violation of the oonstitutlonal socr8c.y of the ballot. 

The condltlons designated to be dealt Qlth, the good lntended to be accomplished, and the mischief sought to be remedied as 

considered by the Legislature were enbodied In the form of the 1993 

amendment in order that the Court having jurisdiction over the trial 

of the felony offense created by Article 227 could permit the ballot 

boxes to be opened and the ballots counted under proper safeguards 

which would maIntaIn and preserve the secrecy of the ballot. 

The fact that the 48th Legislature l.n the emergency 

cl&se of House Bill 44, supra, stated that the Somer law provided 

a penalty for violation of the election laws but made no provlslon 

for the Introduction of the ballots in evidence Is persuasive to 
Bonorable Joe J. Fisher, page 5 

shov the leglslatlve intent OS providing a legal means Sor the 

openLng of the ballot boxes and the introduction of the ballotr 

in evidence upon the trial under the proper supervision of the 

trial court upon indictment duly rendered and returned by Its 

grand jury and under proper safeguard by the Court to Insure the 

secrecy of the ballot. 

clause, 

The very phrase used In the emergency 

‘makes no provisions for the introduction of the ballots 

in evidence, ’ is persuasive of the lo&slative intent that the 

amendment should apply only to the counting of the ballots as 

introduced in evidence upon the trial OS the cause, since it is 

undisputed that vhlle the grand Jury may hear vltnesses and 

examine evidence, nevertheless , there 1s no Introduction in evlde of either tostlmony or exhibits before the grand 

contemplated by Article 227. 

j ury a8 

If the 48th Legislature had intended that the ballot 

boxes should be unsealed and the ballots counted by the grand 

jury for the purpose of obtaining Sacts upon vhlch to base an indlctuent, it oould have easily provided for such procedure by appropriate phraseology. And since Article 227 1s a penal statute, 

no such 1eg;islatlve lntendment can be read into the language or 

the amendment. 

It is thereiore the opinion of this Department that 

the Dlstrlot Court of Orange County has no authority to authorize 

a grand jury of said County to open the ballot boxes or to count 

the ballots ror the purpose of obtalnlng evidence upon vhloh to 

predicate an Indictment. Bovever, the Dlstrlot Court, after w 

indictment has been returned to it, may, Fn its discretion, upon 

the trial of the cause, unseal and open the ballot boxes2 and the 

Court may for itself count or cause to be counted under Its dlreotion the ballots contained therein, exerclslng due diligence to 

preserve the secrecy of the ballots. 

: Yours very truly 

ATTORXEX OEMERAL ,QF TEXAS 

BY C.X. 

Assistant 

Rlchard

.