             THEATTOR~TYGENERAI.
                      OF 7rEsAs




Honorable Frank Briscoe           opinion No.   ww-1075
District Attorney
Harris County                     Re:   Whether Articles 224 and  225
Houston, Texas                          of Vernon's Penal Code, in
                                        reference to aiding voters,
                                        apply to election officials
                                        where voting machines are
Dear Sir:                               used.

          Your letter of May 11,  1961,requests the opinion of this
Department relating to certain penalties applying to violation of the
election laws. Paragraph one of your letter states as follows:

               "This office has had several complaints that
            election officials have gone into voting machines
            with voters behind the closed curtain, and that
            they had turned the levers for the voters. The
            voters in these cases were not incapacitated In any
            way. “

          You are seeking our opinion as to whether or not the penal
provisions of Articles 224 and 225, V.P.C., would apply in precincts
where voting machines are used.

          Section 23, Article 7.14, V.A.T.S., Election Code, provides
in part as follows:

               "The provisions of all other laws, relating to
            the conduct of elections or primary elections, shall
            so far as practicable, wly~ to the conduct of elections
            and primary elections whe:revoting machines are used,
            unless herein othe:
                              rwise provided. . ." (Emphasis added.)

            Article 224, V.P.C., is quoted as follows:

               "Not more than one person at the same time shall
            be permitted to occupy more than one compartment,
            voting booth or place prepared for a voter, nor shall
            any assistance be given a voter in preparing his ballot
            except when a voter is unable to prepare the same him-
            self because of some bodily infirmity such as renders
                                                                  .




Hon. Frank Briscoe, Page 2   NW-1075)


          him physically unable to write, or is over sixty
          years of age and is unable to read and write, in
          which case two judges of such election shall assist
          him, they having been first sworn that they will
          not suggest by word or sign or gesture how such
          voter shall vote, and that they will confine their
          assistance to answering his questions, to naming
          candidates and the political parties to which they
          belong, and that they will prepare his ballot as
          such voter himself shall direct; provided that the
          voter must in every case explain in the English
          language how he wishes to vote, and no judge of the
          election shall use any other than the English
          language in aiding the voter, or in performing any
          of his duties as such judge, and in all cases where
          assistance is given hereunder, two judges of the
          election shall assist such voter, they having been
          first sworn that they will not suggest by word. siw
          or gesture,-how such-voter shall v&e, that they will
          confine their assistance to answering his questions
          in the English language, to naming candidates and if
          the voting be at a general election to naming the
          parties to which such candidates belong and that they
          will prepare the ballot as such voter directs, in the
          English language. If the election be a general e-
          lection, the judges who assist such voter shall be of
          different political parties, if there be such judges
          present, and if the election be a primary election, a
          supervisor, or supervisors may be present when the
          assistance herein permitted is being given, but such
          supervisor must remain silent except in cases of ir-
          regularity or violation of this law. Any judge or
          other officer of an election who shall violate any
          provision of this article shall be fined not less
          than two hundred nor more than five hundred dollars;
          or be confined in jail for not less than two nor more
          than twelve months, or both." (Emphasis added.)

          Article 225, V.P.C., provides as follows:

             "Any judge or other officer at an election who
          assists any voter to prepare his ballot except when
          a voter Is unable to prepare the same on account of
,




    Hon. Frank Brlscoe, Page 3   (wu-1075)



             blindness or some bodily Infirmity such as renders
             him unable to write, or is over sixty years of age,
             or who shall aid such voter by using any other than
             the English language, and any judge or other officer
             of an election who in assisting a voter so incapaci-
             tated, or over sixty years of age in the preparation
             of his or her ballot shall prepare the same other-
             wise than said voter shall direct in the English
             language shall be fined not less than $200.00 nor
             more than $500.00 or by confinement in jail not less
             than two nor more than twelve months, or both."
             (Emphasis added.)

              At the outset it should be observed that Articles 224 and 225
    of the Penal Code are not in every respect consistent with the pro-
    visions of the Election Code relating to assistance to voters. The
    only ground upon which assistance is permitted in the Election Code is
    bodily infirmity rendering the voter physically unable to write or to
    see (Article 8.13) or physically unable to operate the voting machine
    or to see (Section 15 of Article 7.14). Assistance rendered to voters
    over sixty years of age who are unable to read and write is not illegal
    under Articles 224 and 225 of the Penal Code, although it is unauthorized
    in the Election Code. This discrepancy is explained by the fact that
    Article 3010, Revised Civil Statutes of 1925, formerly permitted as-
    sistance to voters over sixty years old who were unable to read and write,
    but this provision was deleted when Article 3010 was carried into the
    Election Code of 1951, without a corresponding change in Articles 224
    and 225 of the Penal Code. See Att'y. Gen. Op. V-1524 (1952).

              The Election Code provides that assistance rendered in vio-
    lation of its provisions shall invalidate the ballot, but it does not
    contain any criminal penalty for assistance which is prohibited by its
    provisions. The only penal statutes relating to this subject are Articles
    224 and 225 of the Penal Code. Although the Election Code is more re-
    strictive than the Penal Code on the classes of voters who may be assisted,
    this fact does not prevent enforcement of the Penal Code provisions if
    they are still in effect.

              The Election Code was enacted by Section 1 of Chapter 492, Acts
    of the 52nd Legislature, 1951. Article 14.11 of the Election Code pro-
    vides:

                 "All laws and parts of laws in conflict herewith
              are repealed in so far as such laws are in actual
              conflict with the provisions of this code and in
Hon. Frank Briscoe,Page 4     MJ-1075)



          case of such conflict the provisions of this code
          shall control and be effective. . ."

          The acts which are made an offense under the Penal Cods are
also prohibited by the Election Code, and consequently these penal pro-
visions prescribing an offense would not come within this provision for
repeal of laws in actual conflict with the provisions of the Election
Code, since there is no conflict on this point. Moreover, the provisions
of the Penal Code were expressly saved from repeal by Section 2 of Chapter
492, which reads as follows:

            "Sec. 2. That all elections and all laws relating
         to suffrage and parties, as found in Title 50 of the
         Revised Civil Statutes of Texas of 1925, and all amend-
         ments thereto. be and the same are hereby rerrealed.
         provided, ho&er,that   nothing in this A& shall be
         construed as repealing or in any way affecting the
         legality of any penal provision of the existing law;
         . . .fl (Emphasis added.)

          In EX parte Sanford, 163 Tex.Crim. 160, 289 S.W.2d 776 (1956),
the Court of Criminal Appeals held that the saving clause in Section 2 of
Chapter 492 exempted the-articles of the Penal Code from the general re-
peal contained in Article 14.11 of the Election Code and left them in full
force and effect.

          We come, then, to the question of whether Articles 224 and 225
of the Penal Code apply in precinct6 where voting machines are used. These
articles relate to assistance given a voter in preparing his ballot.
From a careful examination of their provisions, we fail to find any
language that could be construed to define the ballot or voting in such
a manner as to restrict the method to be used in casting the ballot. The
execution of the ballot could be by means of pencil, pen and ink, type-
writer or other machines, Insofar as these articles are concerned, as no
attempt was made by the Legislature to select the means to be employed in
voting. Voting machines have been held to be a lawful means of casting
a ballot. Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939]; Reynolds V.
Dallas County, 203 S.W.2d 320 (Civ.App. 1947).

          The last revision of Articles 224 and 225 was in 1919, long
before the voting machine was adopted as a lawful means of voting In
Texas. Nevertheless, the Legislature left the laws open to the use of
any method which would accomplish au orderly and legal casting of the
ballot, preserve the purity of such and the guarantees provided by
Article VI, Section 4 of the Constitution of Texas.
.   .




        Hon. Frank Briscoe, Page 5   (WU-1075)


                  Section 25 of Article 7.14 contains the following definition:

                     "The list of candidates and offices and/or pro-
                  positions to be voted for or against, used or to be
                  used on the front of the voting machine shall be
                  deemed official ballots for the purpose of precinct
                  using machines."

        A very comprehensive discussion of the question of whether a voter is
        casting a "ballot" when he votes by means of a voting machine is found
        in the opinion of the Supreme Court in Wood v. State, supra. From the
        opinion we quote the following:

                     "However, since we do not agree with the holding,
                  of the Court of Civil Appeals in regard to this
                  matter, and in view of the fact that this case must
                  be reversed and remanded, we find it necessary, in
                  view of another trial, to decide the constitutionality
                  of these voting machines. The constitutional pro-
                  vision in question reads as follows: 'Sec. 4. In all
                  elections by the people the vote shall be by ballot
                  and the Legislature shallprovidefor the numbering of
                  tickets and make such other regulations as may be
                  necessary to detect and punish fraud, and preserve the
                  purity of the ballot box and the Legislature may pro-
                  vide by law for the registration of all voters in all
                  cities containing a population of ten thousand in-
                  habitants or more.'

                     "It will be noted that the constitutional provision
                  just quoted in effect contains four distinct pro-
                  visions. The first two of these provisions are manda-
                  tory. The four provisions referred to are as follows:
                     II. . .

                     "The first requirement of the above constitut~ional
                  provision is that in all elections by the people the
                  vote shall be by ballot. We think that this provision
                  simply means that the voter in all elections shall be
                  accorded a secret vote or ballot. [Citing authorities.]
                  It is conclusive that this machine accords a secret
                  ballot. It is therefore not unconsitutional on that
                  score."

                  Articles 224 and 225 assess a penalty against "any judge or
        other officer" of an election who renders assistance in violation of the
Hon. Frank Briscoe, Page 6   (WW-1075)



provisions. Section 24 of Article 7.14 provides for the appointment of
a presiding officer and a certain number of clerks as election officers
in precincts where voting machines are used. This section also pro-
vides for the appointment of watchers, who, by Section 25 of Article
7.14, are defined as officials of the election.

          Your request refers to a situation where "elections officials"
have gone into voting machines and turned the levers to vote for the
voter. "Officials" are identified in the preceding paragraph. Our
opinion is directed to the proposition as to whether the penal pro-
visions of Articles 224 and 225 are applicable In precincts where
voting machines are used. We must approach the question by trying
to determine the intent of the Legislature when it authorized voting
machines as a lawful means for casting a ballot, keeping in view at
all times the old law, the evil and the remedy. Section 23 of Article
7.14 of the Election Code makes all other laws applicable to elections
where voting machines are used, obviously applying to penal statutes as
well as others. We are therefore constrained to the view that Articles
224 and 225 are valid existing laws and that the provisions thereof ap-
ply to the conduct of elections where voting machines are used, in that
the voting machine "accords a . . . ballot" (Wood v. State, supra) and
"the list of candidates and offices and/or propositions to be voted for
or against, used or to be used on the front of the voting machine shall
be deemed official ballots for the purpose ofprecinct    using machines."
Sec. 25 of Art. 7.14 of the Election Code.


                              SUMMARY

              The use of a voting machine, in counties
           where voting machines are used, constitutes
           a valid "ballot", and an election officer in
           a precinct where voting machines are ueed who
           assists a voter contrary to the provisions of
           Articles 224 and 225 of the Penal Code may be
           prosecuted thereunder.

                                         Very truly yours,

                                         WILL WILSON.
                                         Attorney General of Texas




                                            Harris Toler
                                            Assistant Attorney General
HT/br
Hon. Frank Briscoe, Page 7   (WW-1075)



APPROVED:

OPINION COMMl3'TEE
W. V. Geppert, Chairman

Mary K. Wall
Elmer McVey
Leon Pesek
Fred Werkenthin

REVIEWED FOR THE ATTORNEY GENERAL

BY:   Morgan Nesbitt
