        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
