Case Information

*1 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, (Arkcle 227, Chapter .4, Title 6, Penal Code, 1925) is a8 rollowe I

Eonorable Joe J. Fisher, page 2 chaI.rman or

‘Any judge or clerk of an election, committee, ofricer member of a party executive 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, Ex Parte Arnold, 123 MO. 256. 30 S. W. 768. held that ballot be Op8&8d br the bailits used is ivldence in orlml~

boxes cannot nal casea. J’

In 1933 the Court of CrImInal Appeals again construed 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 a1 r0110vs:

part

“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- If It Ia thought neceasarJ to make the ballots

mat.

av&iI.ilabIe as evidence in orlminal DroCeedInns~ the

. .

Honorable Joe J. Flrhor, page 3

lealslature strictions can do 80, under such llmltatlons re-

as asp be deenad essential to their lntegrltjt. t cannot open them ti Ith

the courts

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- for

sib19 destroying 1~ taany, their value as evidence

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 to Artlole as It then existed:

rentenao

II In all such cases, the Court shall have authoriiy’tg unseal and open the ballot boxes, and the

Court may count, 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 *4 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, 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

Beach v, State and E arroll v. state, supra., to the effect that the ballot boxes could not be opened, and the ballots could not be used for the reason that no legiSl6tiVe as evidence In criminal trials

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 of House Bill 44, supra, stated that the Somer law provided cl&se a penalty violation of the election laws but made no provlslon for the Introduction of the ballots in evidence Is persuasive to *5 Bonorable Joe J. Fisher, page 5

shov the leglslatlve OS providing a legal means Sor the intent openLng of the ballot boxes 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 ‘makes no provisions for the introduction of the ballots

clause,

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 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 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 Orange County 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- contained therein, exerclslng due diligence to tion the ballots

preserve the secrecy of the ballots.

: Yours very truly ATTORXEX OEMERAL ,QF TEXAS BY C.X. Rlchard~ Assistant