THJCATTOENEY GENERAL
OFTEXAS
Honorable C. 0. Murdoch
County Attorney'
Menard County
Menard?,Texas
Dear Sir: Opinion No. O-3074
Re: May a ballot box be produced Fn
court, opened and a ballot Intro-.
awed in evidence in a criminal
case.
Your written request for an opinion from this de-
partment has been received. We quote from your request as
follows:
"I have a case coming up here, very soon,
in which the defendant is charged with vlolat-
ing the electlon laws, to be specific, with
having filled out a ballot for an aged man,
past sixty years of age, contrary to the direc-
tions, otherwise than directed by the said
aged voter, the defendant at the time serving
as assistant election judge or officer.
"The defendant was indicted by the grand
jury upon the complaint of the said voter, so
I understand.
"Now, what I want to know is is there any
process by which I may secure and introduce in
to evidence in the trial the ballot of said
voter? Should I file a written motion with the
Court to order the County Clerk to turn over to
the Court the said ballot for evidence or should
I obtain the issue of a Writ Duces Tecum against
the County Clerk to have him appear in Court and
present the ballot for evidence, or by what means
may I?
oes Article 3028, R.C.S. prohibit the
'"to
use of the ballot for evidence except in cases
where elections are contested and the sole pur-
pose of the suit is to determine the validity
of the election? Carroll vs. State, 124 Cr. R.
.
Honorable C. 0. Murdoch, page 2 O-3074
180, is cited In support of the affirmative
but in that case and in all others that I ha;e
read, there was not the same set of facts as
is in this case, where the voter seeks the
punishment of one who ischarged with having
marked his ballot otherwise than directed.
The provision pertaining to the sacredness
of the secret ballot, in our laws and Consti-
tution, was for the purpose of keeping the
ballot secret and was for the protection of
the voter in securing for him the right to
vote as he pleases; if he wants to waive that
right for the purpose of securing and enjoy-
ing the right of suffrage, and for the pur-
pose of preventing corruption and fraud which
denies him that suffrage or right to vote as
he pleases, may he not do so, with the sanc-
tion of the law?",
From the facts given In your request, it is apparent
that the electFon official is charged with violating elther~
Article 224 or Article 225 of the Penal Code, 1925, which has
to do with improper assistance to voters.
Article 3028 of the Revised Civil Statutes, 1925,
provides for the custody of the official ballots and ballot
boxes after the election judges have counted the ballots cast
in an election. It will be noticed that the only provision
for opening the ballot boxes after they have been turned over
to the county clerk is in cases where a contest has developed
and then the necessary boxes shall be delivered by said county
clerk to "any competent officer having a process therefor,
from any tribunal or authority authorized by law to demand
such ballot box." Article 3041 of the Revised Civil Statutes,
1925, provides that election contests shall be filed in the
District Court. Article 3071, Revised Civil Statutes, 1925,
gives the District Court, In such election contests, very
broad power, including the power to have the ballot boxes
produced, opened and the ballots examined. Said statute deals
only with the power of the court in cases where there Is an
election contest and could not be said to cover the instant
case.
Our Court of Criminal Appeals has held in several
cases that the only provision made under our laws for the
opening of the ballot boxes and examining the ballots and
introducing them in evidence is in cases where there is an
electlon contest. This power has been hela not to extend
to criminal prosecution of election officials charged with
violation of the Penal Statutes. This was the holding by
- .
Honorable C. 0. Murdoch, Page 3 O-3074
the Court of Crimq.nalAppeals in Carroll v. State, 124 Cr.
R. 180, 61 S. W. (2d) 1005. The defendant in that case was
charged and convicted under Article 227 of the Penal Code,
1925, for making false canvass of votes cast at an election.
The ballot boxes were opened and the ballots examined befcre
the grand jury. This same evidence was Introduced over pro-
per objections In the trial of the case. The court held
that it was improper for the ballot boxes to be opened be-
fore the grand jury as not being authorized by law. The
court further held in reversing and remanding the case as
follows:
"In June, 1911, there was before the Supreme
Court of thl.sstate, the case of Clary et al. v.
Hurst, reported in 104 Tex. 423, 138 S. W. 566,
****. The conclusion of the court Is expressed
at page 571 of 138 S.W., 104 Tex. 423; in the fol-
lowing language:
"'Again, it is manifest that the box con-
taining these ballots cannot and was not in-
tended to be opened, except In the event of a
contest, and then only in response to and by
authorltx of due and lawful process. And by
"contest here is meant, we think, a suit in
which the validity of the election, or the cor-
rect ascertainment of the result thereof, Is
the subject-matter of litigation in a court
having jurisdiction to hear and determine such
issues. * * **I
"In the case of Beach v. State, 75 Tex. Cr.
R. 434, 171 3. W. 715, 716, a prosecution under
the same article as Is the present conviction,
we find In the opinion of this court, written by
Judge Davidson, the following conclusion:
"'The state was permitted to introduce in
evidence and open the ballot box containing the
names of the voters at the election mentioned in
the indictment. Various and sundry objections were
urged to the introduction of this testimony. At
this late date, in view of the authorities, the
Constitution and the statute, we are of Opinion
the court was clearly wrong, and the objections
should have been sustained. * * *
"'But whether the ballot-box had been opened
or not, and whether the criminal prosecution oc-
curred wlthin 12 months, would make no difference,
Honorable C. 0. Murdoch, page 4 O-3074
so far as this case is concerned, because the
statute has limited the opening of the ballot
box to contested elections. and the author-
ities hold that these ballot boxes cannot be
opened or the ballots used as evidence ln
criminal cases.'
"In support of his conclusion, Judge David-
son refers to the following cases: State v.
Taylor, 220 MO. 618, 119 S.W. 373 (a Missouri
. Rx parte Arnold 128 MO. 256 30 S.W.
7"%");036 33 L R A 386 49 Am. St' Rep. 557;
State v. &ancis,'88 Mo.'557. In the case of
Ex parte Arnold 128 MO. 256, 30 S.W. 768, 1036,
33 L.R.A. 386, 49 Am. St. Rep. 557, the con-
clusion which coincides with that of the ap-
pellant here, Is bottomed upon the view enter-
tained by the Supreme Court of Missouri at the
time the opinion was written that the constitu-
tional provision declaring that an election by
ballot carries with It the obligation that the
ballot be kept secret unless Its exhibition is
made legal by some express provision of the law.
The decisions throughout this country seem unani-
mous in holding that the requirement that the
vote be by ballot, that a 'secret ballot' Is
meant, whether the requirement be in the Consti-
tution or in a statute.
"In article 3028,,Rev. St. 1925, minute and
express legislative direction is accorded with
reference to the preservation and secrecy of the
ballots. In the article, legislative sanction
of the use of the ballot In a contest election
case is accompanied with language which unmls-
takably shows that exceot in contested election
cases the ballots shall not be ooened and ex-
hibited.
"The conclusion stated, namely, that the
vote by ballot means a 'secret vote,' and the
zeal and care with which the courts have guarded
them 1s emphasized by many courts and text-
writers. See Wigmore on Evidence, Vol. 4, g 2214;
Cooley's Const. Limitations (8th Ed.) Vol. 2, P.
1378.
Honorable C. 0. Murdoch, Page 5 O-3074
"The decision of the Supreme Court of
California upon the same subject as the pres-
ent, and construing a law practically like the
law of this state, held that unless there was
a contest of the election. the ballots were not
available to prove fraud in the election. nor
could the ballots be exhibited where It appeared,
as it does In the present appeal. that the regula-
tion for the preservation and custody of the bal-
See Ex Parte Brown,
ing the criticism that the enforcement of the law
as declared might be an impediment to the convic-
tion for fraud, the court exuressed the obvious
view that the ureservation of the secrecy of the
ballot and its purity was primarily a subject for
the Legislature.
"The use against the appellant of the evl-
dence going to show how the individuals at the
election voted is regarded as contrary to the
law of the land, and we understand it has been
SO declared in the case of,Beach v. State, supra,
and also in the case of Clary et al. v. Hurst,
supra. Its reception, being In conflict with
the law as interpreted in the various decisions
of other states and by virtue of article 727a,
C. C. P. 1925, declaring that no evidence obtained,
in violation of the Constitution or laws of the
state of Texas shall be admitted in evidence a-
gainst the accused on the trial of any criminal
case, we are constrained to conclude that the con-
viction of the appellant cannot be sustained.
'From the case of Ex parte Brown, 97 Cal.
83, 31 p. 840, 842, the following quotation is
taken: 'We are asked by counsel how the de-
clared intention of the legislature to punish
frauds by election officers can be reconciled
with an intention to prevent the use of the best
means of proving such frauds. * * l This
failure of urovision, however, if.. inax
_. there
'. , c0Llrt.s
was such failure, cannot be remedied oy ths c
but must be leftto t.he legislature Itself AUP,.-
amendment. If it Is though necessary to make the
ballots available as evidence In criminal nro-
ceedings. the legislature CEm a0 SO. Linder such
limitations and restrictions as may be7 leemed
essential to their lntegritv.
- The court?ZZinot
open them for inspection without destroying all
Honorable C. 0. Murdoch, page 6 O-3074
safeguards, except as each particular judge who
may order them into court shall see proper to
apply, nor without Impairing in all cases, and
possibly destroylng in many, their value as evidence
for the only purpose for which the law has directed
their preservation.'
"The views of this court are in accord with
the remarks quoted above." (Underscoring ours).
We have been unable to find any specific authority
providing for the opening of ballot boxes and the examination
of the ballots and introducing them in evidence In criminal
cases. Neither do we find such authority providing for the
opening of a ballot box and the examination of a particular
or singular ballot as would seem to b,eproper In the instant
case. We believe the ruling in the Carroll v. State case,
supra, and cases cited therein, control the law applicable
to the instant case.
You are advised that it Is the opinion of this de-
partment that the laws and decisions of this State prohibit
the opening of a ballot box and the introduction of the bal-
lot in evidence In the criminal case referred to in your ln-
quiry.
In view of the above holding, we do not believe it
ls necessary to answer the other propositions covered in your
inquiry.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Harold McCracken
Harold McCracken
Assistant
HM:RS:wc
APPROVED FEB 3, 1941
s/Grover'Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman