**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 namethe 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

‘Anyjudge or clerk of an election, chaI.rman

### or memberof a party executive committee, 

### orofricer of a primary special or general election, vhovIlltul1~ **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.Thefirst construction OSthis act by the Court of ;;a~Inal Appeala was In the case of Beachv. State, 171 S. Y. J staies, a?aongvhiah vere ExPart6 Droun, 97 Cal, 83, 31 P. ‘840, f ’he Court after revleving numerous authorities 

### fromother J and ExParte Arnold, 123MO.256. 30S. W. 768. held that ballot 

### boxes cannot nal casea. be Op8&8dbr the bailits used is ivldence in 

### orlml~

In 1933 the Court of CrImInal Appeals again construed Artlale 227,’ P. C. 19255rIn the case of Carpoll v. State, 61 S. W. (26) 1005, where the ballot boxes hadbeen **turned over**  **to the**  grand jury and examined by it. After the lndlctment va8 

### returned, tho ballot boxes YSWagab Introduced In ovidenoe 

### upon **tho trLs1**  **before the**  **jury.**



### After oltlng the casecfBeachv. 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. TheCourt hold in part a1 r0110vs:

“From the case OSBx

### parte Brown, 97Cal. 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 

### byoleatlon OS**ficers** 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 makethe ballots av&iI.ilabIeas evidence in orlminal DroCeedInns~ **the** 

# J’..

.



### Honorable JoeJ. 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 makeballots available as evldenae In orimIna1 proceedings must be through anact of the Legislaturej and pursuant thereto the 48th Legislature Ln 1943 at Its regular session amended Article 227by 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 

### 227as It then existed:

**II** In all such cases, the Court 

### shall have authoriiy’tg unseal and open the ballot boxes, and the Court maycount, **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 OSthe ballots, andupon 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 sameuntil ordered by the Court 

### to destroy tho same.m (Emphasis ours) Theemergency 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 1Y
‘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 theHonorable 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 SupremeCourt of Texas In the case of &ignolIa Petroleum Companyv. Walker, 

### 83 **9. W.**  (24) 929, J’ held as fqllovsr

“NoInflexible 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 madetherefor; 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 amendmentin order that the Court having jurisdiction over the trial of the felony offense created byArticle 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 madeno provlslon for the Introduction of the ballots in 

### evidence Is persuasive to

### Bonorable Joe J. Fisher, page 5



### shov the leglslatlve intent 

### OSproviding a legal meansSor the openLngof the ballot boxes **and**

### the introduction of the ballotr in evidence uponthe trial under the proper supervision of the trial court uponindictment duly rendered andreturned byIts grandjury andunder proper safeguard by theCourt to Insure the secrecy of theballot. clause, Thevery phrase used In the emergency

‘makes noprovisions **for** 

### the introduction of the ballots in evidence, ’ is persuasive of the lo&slative intent that the amendmentshould apply only to the counting of theballots **as** 

### introduced in evidence uponthe trial OSthe cause, since it is undisputed that vhlle the **grand**

### Jurymayhear vltnesses and examineevidence, nevertheless , there 1s noIntroduction in evlde of either tostlmony or exhibits before thegrand contemplated byArticle 227. 

### jurya8

If the 48th 

### Legislature hadintended that 

### the ballot boxes should beunsealed andthe ballots counted by the **grand** 

### jury for the purpose of obtaining Sacts uponvhlch to base anindlctuent, it oould haveeasily provided for suchprocedure byappropriate phraseology. Andsince Article 227 1s a penal statute, 

### nosuch 1eg;islatlve lntendment canbe read into the language or the amendment.

It is thereiore the opinion of this Departmentthat the Dlstrlot **Court** 

### of Orange Countyhas noauthority to authorize **a** 

### grandjury of said Countyto open the ballot **boxes**

### or to **count** 

### the ballots ror the purpose of obtalnlng evidence 

### uponvhloh to predicate anIndictment. Bovever, the Dlstrlot **Court,** 

### after w indictment has been returned to it, may, Fnits discretion, upon the trial of the cause, unseal andopen theballot boxes2 andthe Court mayfor itself count or cause to be countedunder Its **dlreo** tion the ballots 

### contained **therein,** 

### exerclslng duediligence 

### to preserve the secrecy of the ballots.

: Yours 

### very truly ATTORXEX



### OEMERAL

,QFTEXAS 

# BYC.X. Rlchard~
Assistant

.