THEATTORNEYGENERAL 

OF TEXAS 

Honorable Edna Clsneros Opinion No. C-300 

County Attorney 

Willacy County qe: Whether the’ mlscalllng of 

Raymondville, Texas votes is covered by Article 

227 of Vernon’s Penal Code 

relating to the making of a 

false canvass of the votes 

cast at an c;ection, and reDear Miss Claneros: lated questlbne. 

This will acknowledg,e ,recelpt of your letter of August 

19, 1964, wherein you asked the following questions: 

“1. Is the mlscalllng of votes coverid by 

Article 227 of; the,Femal Code? 

“2. Does Artlclo 9.57 fnmirsh the Grand 

Jury with atithorlty ~to open ttie ballot boxeq 

and examine them, provided an issue is raised 

to warrant the Court tb grant such permission?” 

As facts you state that evidence reveals that one of 

the election officials, while calling the ballots for the benefit of the tally clerks,,called the wrong name in a two-man race 

on twenty-five or more occasions which were observed and subsequently reported by one of the tally clerks. The tally clerk, 

however, did not render such a ruport until more than ten days 

after the election and the tally clerk knowingly signed the 

affidavit on the offlclal return forwarded to the County Democratic Committee. 

follows: 

The statute in ,qUestion (Article 2?7, V.P.C.) reads as 

" 

“Any Judge or Clerk of an election, khalrman or member of a,~ljarty executive committee, 

or officer of a primary, special or general 3 

election, who willfully makes any false canvass 

of the votes cast at sudh election, or a false 

statement of the result of a canvass of the 

ballots cast shall be conclned In the penlnot less than tti (2) nor more than 

years. . . .' 

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Honorable Edna Cisneros, page 2 (C-300) 

1. Is the miscalling of votes covered 

of the Pen@ Code? 

by Article 227 

In order to answer this question It Is 

determine what constitutes a "canvass." Words 

necessary to 

and Phraaes 

contains excerpts from other jurlsdlctlons to the following 

tenor: 

The canvass by the judges of election 2 

merely their count. Graham v. Peters, 93 N.E. 

315; 316, 248 Ill. 50 (1910). 

That accused as an election officer made 

marks on a tally sheet as another offloer called 

off the votes warranted a finding that accused 

"counted" and "canv8ssed" the votes; It being 

unnecessary that he handle each ballot. Cominonwealth v. ,Edgarton, 86 N.E. 768, 771, 200 Mass. 

318 (1909). 

A canvass of an ele~ctlon "includes not 

only the oountlng of the vote,by the Inspectors, 

but the record of the,count by the poll clerks 

upon the tally sheet. This tally sheet therefore, is made a substantial part of the canvass." 

In re Stewart, 48 N.Y.S. 957, 963, 24 App.Dlv:, 

. 

"A Canvass Is the act of examining and 

counting the returns of votes cast at a public 

election." Gr@en v. Stoddard, 1Og.N.P.S. 2 

395, 398 (1931 I. 

It must be assumed that the Legislature intended to 

create a penal offense for any person who wllfully did an act 

which would cause any "canvass" of the'electlon to be false. 

The deliberate miscalling.and recording of votes as desoribed 

In your letter will make any canvass of the specified election 

false. 

The answer to your first question Is 'yes." 

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Honorable Edna Clsner@, ,psge:, 3: (C-300) 

,2. Does Article 9.37 furnish the Grand Jury with authority to open the ballot boxes and examine them, provided an 

Issue Is raised to warrant the Court to grant such permission? 

Article 9.37, V.A.T.S., Election Code, provides as 

follows: 

“At any time when the grand jury Is making 

an lnvestlgatlon of any criminal vlolatlon of 

the election laws, and finds probable cause, a 

request may be made to a district judge of that 

county for an orderdirected to the Cdunty Clerk 

to permit the grand jury to examine the ballot 

box and ballots therein In so far as may be 

necessary to detennlne the Issue at stake. Such 

o~rder may be lasued.by,,the district judge In his 

sound discretion. Xri t‘hat case, the grand jury 

shall make such examination In seoret before a 

quorum off the grand jury and only then; when 

such examination ia complete the boxes shall be 

relocked and returried to the custody of the 

County Clerk. ” 

There have been no ~eclslons,under this ‘Article. The 

Blstorlca~ Comment furnlshed by the codifiers and prepared by 

Dr..A.P. Cagle,‘Counsel for the Election Code Commission states 

as follows: 

“This Is a new article. It was Intended to 

reverse a court decision that the grand jury 

had’no right to open an election box. It places 

the matter within the sound discretion of the 

district judge. ” 

The answer to your second question Is “yes.” 

SUMMARY 

The Intentional mlscalllng of votes to the, 

tally clerks constitute@ wllfully making a 

false canvass of the votes cast at such election. 

Article 9.37 of the Eleotion Code furnishes the 

grand jury author1ty.t.o open the ballot boxes 

and examine the cont,ents under appropriate 

orders from the district court. 

Yours very truly, 

WAGGONER CARR 

Attorney,General of Texas 

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Honorable Edna Cisnertm,~page 4:~(C-300) 

IiMF/br 

APPROVED 

OPINION COMMI!FTEE: 

W. V. Geppert, Chairman 

Larry ~Merrlman 

Grady Chandler 

Cecil Rotsch 

Roger Tyler 

'APPROVED FOR TEE ATTORNEY GENERAL 

ms: Stanton Stone 

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