Gerald C. Mann
   A.n-rORNEI
          "ENnsiRAl-




  Honorable W. C. McClain
  District Attorney
  Conroe, Texas
  Dear Mr. McClaln:           Opinion Ro. O-2526
                              Re: Under Articles 3123 and
                                   3128, R. S., should the
                                   ballot boxes used in
                                   primary elections be re-
                                   turned with the ballots
                                   cast to the County Clerk
                                   of the county or the
                                   Chairman of the County
                                   Executive Cormnitteeof
                                   said county?
             We be to acknowledge receipt of your letter of
   date July 3, 19& 0, propounding the following question for
   an opinion:
             "Under Article 3123 and   Article 3128 of
        the Revised Statutes, should   the ballot box-
        es used In primary elections   be returned
        with the ballots cast to the   County Clerk of
        the county?"
             Article 3123 referred to by you is as follows:
            "The presiding judges of party primary
       elections In all of the election precinct5
       of this State shall, within seventy-two
       hours after the closing of the polls in
       said party primary election, make returns
       to the Chairman of the County Executive Com-
       mittee of their respective Counties.of the
       ballot boxes containing the ballots voted,
       locked and sealed, tally sheets, poll lists,
       return sheets, ballots mutilated and de-
       faced, and ballots not voted, for which said
       County Chairman shall account to the Executive
Honorable W. C. McClain, Page 2


     Conrmitteeof the county. The County Chairman
     shall, within forty-eight hours after the
     votes have been canvassed by the County Exe-
     cutive Committee as provided in Article 3124,
     Revised Civil Statutes of 1925 as amended by
     Chapter 275, Acts of the Regular Session of
     the Forty-first Legislature, mall to the
     State Chairman of their respective parties,
     complete returns as to the results of said
     party primary elections as to the several
     State offices."
          Article 3128   of the Statutes reads as follows:
          "Ballot boxes after being used in primary
     elections shall be returned with the ballots
     cast, or contained in each box as they were
     deposited by the election judges, locked and
     sealed, to the county clerk, and, unless
     there be a contest for a nomination in which
     fraud or illegality is charged, they shall
     be unlocked and unsealed by the county clerk
     and their contenta destroyed by the county
     clerk and the county judge without examina-
     tion of any ballot, at the expiration of
     sixty days after such primary election."
          There is no conflict between these two statutes.
Each of them should be, and may be, we think, construed
in such a way as that both may stand, and that being true,
it Is our duty to construe them EiCCOPdingly.
          Article 3123 plainly and' specifically makes it
the duty of the presiding judges of party primary elec-
tions to "make returns to the County Chairman of the
County Executive Committee of their respective counties
of the ballot boxes containing the ballots voted, locked
and sealed, tally sheets, poll lists, return sheets,"
etc. It furthermore imposes upon the County Chairman
the duty to account to the Executive Committee of the
county for these things. This statute is specific,
clear and unambiguous. It should be followed.
          Article 3128 of the Statutes requires that
"ballot boxes after being used in primary elections
shall be returned with the ballots cast, or contained
                                              -.




Honorable W. C. McClain, Page 3


In each box as they were deposited by the election judges,
locked and sealed, to the County Clerk." It does not pro-
vide specifically who shall make such returns. We think
the clear implication, however, Is that the County Chair-
man shall return them to the County Clerk. That officer
will, of course, deliver to the Committee those instruments
-- "tally sheets, poll lists, and return sheets" -- for
the Committee's use, but the ballot boxes, which can serve
no purpose In the hands of the Committee should be returned
directly to the County Clerk.
          It will be noted the statute merely requires the
Chairman "to account" to the Committee for all returns. He
has performed that duty as to the ballot boxes when he de-
livers them to the County Clerk and reports that fact to
the Executive Committee.
          We trust that what we have said will have answered
your question satisfactorily.
                                  Yours very truly,
APPROVED JUL 15,   1940    ATTORNEY GENERAL OF TEXAS
Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL           By      /a/ Ocie Speer
                                    Ocie Speer
OS-MR-hep                                Assistant




                             APPROVED
                             OPINION
                           COMMITTEE
                           BY.BWB
                             CHAIRMAN
