Untitled Texas Attorney General Opinion

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. . . .' -1430- -..-. _ 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." -1431- 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 -1432- 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 -1433-