### THEATTORNEYGENERAL OF TEXAS

Honorable EdnaClsneros 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 re

### DearMiss 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 ~toopen ttie ballot boxeq and examine them, provided an issue is raised to warrant the Court tb grant such permission?” Asfacts 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 namein a two-man race on twenty-five or more occasions which were observed and subsequently reported by one of the tally clerks. Thetally clerk, however, did not render such a ruport until more than ten days after the election andthe tally clerk knowingly signed the affidavit on the offlclal return forwarded to the County Democratic Committee.
follows: Thestatute in ,qUestion (Article 2?7, V.P.C.) reads as "

“AnyJudge or Clerk of an election, khalrmanor memberof a,~ljarty executive committee, or officer of a primary, special or general 3 election, whowillfully makesany 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 EdnaCisneros, 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." Wordsnecessary to andPhraaes contains excerpts from other jurlsdlctlons to the following tenor: The canvass by the judges of election 2

merely their count. Grahamv. Peters, 93N.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 madea substantial part of the canvass." In re Stewart, 48N.Y.S. 957, 963, 24App.Dlv:,

. "A Canvass Is the act of examining and counting the returns of votes cast at apublic election." Gr@env. Stoddard, 1Og.N.P.S. 2 395, 398 (1931I. It must be assumed that the Legislature intended to create a penal offense for any person whowllfully did an act which would cause any "canvass" of the'electlon to be false. Thedeliberate miscalling.and recording of votes as desoribed In your letter will makeany canvass of the specified election false. Theanswer to your first question Is 'yes."
-1431-Honorable EdnaClsner@, ,psge:,3:(C-300)

,2. Does Article 9.37 furnish the GrandJury 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 whenthe grand jury Is making

an lnvestlgatlon of any criminal vlolatlon of the election laws, andfinds probable cause, a request maybe madeto a district judge of that county for an orderdirected to the Cdunty Clerk to permit the grand jury to examine the ballot box andballots therein In so far as maybe necessary to detennlne the Issue at stake. Such o~rdermaybe lasued.by,,the district judge In his sound discretion. Xrit‘hat case, the grand jury shall makesuch examination In seoret before a quorumoffthe grand jury andonly 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~ Commentfurnlshed by the codifiers andprepared by Dr..A.P. Cagle,‘Counsel for the Election CodeCommission states as follows:

“This Is a newarticle. 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. ” Theanswer 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 Codefurnishes 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 -1432-Honorable EdnaCisnertm,~page 4:~(C-300)

IiMF/br APPROVED OPINIONCOMMI!FTEE: W.V. Geppert, Chairman Larry ~Merrlman Grady Chandler Cecil Rotsch Roger Tyler 'APPROVED

FORTEEATTORNEY

GENERAL ms: Stanton Stone

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