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 can-
lly m$scall‘ed a ~NIII-
into the voting
g this ,evi&ence to
predioated’um in?
does not specifically name the grand
to go lnto’the bal&ot boxes,
court may cause to .be counted
cast in-any election.
Section 153, page 558, Acts of the Texas Legislature,
1905 (Arkcle 227, Chapter .4, Title 6, Penal Code, 1925) is a8
rollowe I
.
Eonorable Joe J. Fisher, page 2
‘Any judge or clerk of an election, chaI.rman or
member of a party executive committee, or ofricer of
a primary special or general election, vho vIlltul1~
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.
The first construction OS this act by the Court of
;;a~Inal Appeala was In the case of Beach v. State, 171 S. Y. J
f’he Court after revleving numerous authorities from other J
staies, a?aong vhiah vere Ex Part6 Droun, 97 Cal, 83, 31 P. ‘840,
and Ex Parte Arnold, 123 MO. 256. 30 S. W. 768. held that ballot
boxes cannot be Op8&8d br the bailits used is ivldence in orlml~
nal casea.
In 1933 the Court of CrImInal Appeals again construed J’
Artlale 227,’ P. C. 19255r In the case of Carpoll v. State, 61 S. W.
(26) 1005, where the ballot boxes had been turned over to the
grand jury and examined by it. After the lndlctment va8 returned,
tho ballot boxes YSW agab Introduced In ovidenoe upon tho trLs1
before the jury.
After oltlng the case cf Beach v. 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. The Court hold in
part a1 r0110vs:
“From the case OS Bx parte Brown, 97 Cal. 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 by oleatlon 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 amend-
mat. If It Ia thought neceasarJ to make the ballots
av&iI.ilabIe as evidence in orlminal DroCeedInns~ the
..
.
Honorable Joe J. Flrhor, page 3
lealslature can do 80, under such llmltatlons and re-
strictions 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 pea-
sib19 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 por-
tlon of the opinion just quoted the Court of CrIdnal Appeala stated
that the only way to make ballots available as evldenae In orimIna1
proceedings must be through an act of the Legislaturej and pursuant
thereto the 48th Legislature Ln 1943 at Its regular session amended
Article 227 by 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 227 as It then existed:
II
In all such cases, the Court shall have
authoriiy’tg unseal and open the ballot boxes, and the
Court may count, or cause to be counted under its dl-
rection. the hallote cast in any election; hovever, In
so doing the Court shall exercise due diligence to pro-
serve the secrecy OS the ballots, and upon 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 same until ordered by the Court
to destroy tho same.m (Emphasis ours)
The emergency clause reads In part as follovsl
“The fact that the present lav provides a penalty
for such violations, but makes no provision for the In-
tmduction of the ball ts In e idence r ndms buch 1 Y
‘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 the
Honorable Joe J. Fisher, page 4
state of the law at the time of Its enactment, the conditions deslg-
nated to be dealt vlth, the good intended to be accomplished, and
the mlsohlef sought to be reuedled shall all be t&en into consld-
eretlon.
Judge Sharp, speaking for the Supreme Court of Texas In
the case of &ignolIa Petroleum Company v. Walker, 83 9. W. (24) 929, J’
held as fqllovsr
“No Inflexible rule can be announced for the con-
struction 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 ob-
tained 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 Earroll 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 made therefor; 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 ln-
tended to be accomplished, and the mischief sought to be remedied as
considered by the Legislature were enbodied In the form of the 1993
amendment in order that the Court having jurisdiction over the trial
of the felony offense created by Article 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 made no provlslon
for the Introduction of the ballots in evidence Is persuasive to
Bonorable Joe J. Fisher, page 5
shov the leglslatlve intent OS providing a legal means Sor the
openLng of the ballot boxes and the introduction of the ballotr
in evidence upon the trial under the proper supervision of the
trial court upon indictment duly rendered and returned by Its
grand jury and under proper safeguard by the Court to Insure the
secrecy of the ballot. The very phrase used In the emergency
clause, ‘makes no provisions for the introduction of the ballots
in evidence, ’ is persuasive of the lo&slative intent that the
amendment should apply only to the counting of the ballots as
introduced in evidence upon the trial OS the cause, since it is
undisputed that vhlle the grand Jury may hear vltnesses and
examine evidence, nevertheless , there 1s no Introduction in evl-
de of either tostlmony or exhibits before the grand j ury a8
contemplated by Article 227.
If the 48th Legislature had intended that the ballot
boxes should be unsealed and the ballots counted by the grand
jury for the purpose of obtaining Sacts upon vhlch to base an in-
dlctuent, it oould have easily provided for such procedure by ap-
propriate phraseology. And since Article 227 1s a penal statute,
no such 1eg;islatlve lntendment can be read into the language or
the amendment.
It is thereiore the opinion of this Department that
the Dlstrlot Court of OrangeCounty has no authority to authorize
a grand jury of said County to open the ballot boxes or to count
the ballots ror the purpose of obtalnlng evidence upon vhloh to
predicate an Indictment. Bovever, the Dlstrlot Court, after w
indictment has been returned to it, may, Fn its discretion, upon
the trial of the cause, unseal and open the ballot boxes2 and the
Court may for itself count or cause to be counted under Its dlreo-
tion the ballots contained therein, exerclslng due diligence to
preserve the secrecy of the ballots.
: Yours very truly
ATTORXEXOEMERAL
,QF TEXAS
BY C.X.
Rlchard Assistant
.