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 re-
Dear 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 bene-
fit of the tally clerks,,called the wrong name in a two-man race
on twenty-five or more occasions which were observed and subse-
quently 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 Demo-
cratic Committee.
The statute in ,qUestion (Article 2?7, V.P.C.) reads as
follows: "
“Any Judge or Clerk of an election, khalr-
man 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 penl-
not 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 by Article 227
of the Pen@ Code?
In order to answer this question It Is necessary to
determine what constitutes a "canvass." Words 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. Cominon-
wealth 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 there-
fore, 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 au-
thority 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
'APPROVEDFOR TEE ATTORNEY
GENERAL
ms: Stanton Stone
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