           THEATTORNEYGENERAL
                          OF   TEXAS




Honorable Edna Clsneros             Opinion No. C-300
County Attorney
Willacy County                      qe:      Whether the’ mlscalllng   of
Raymondville, Texas                          votes is covered by Article
                                             227 of Vernon’s Penal Code
                                             relating to the making of a
                                             false canvass of the votes
                                             cast at an c;ection,    and re-
Dear Miss Claneros:                          lated questlbne.
        This will acknowledg,e ,recelpt of your letter                   of August
19, 1964, wherein you asked the following   questions:
               “1.   Is the mlscalllng      of votes     coverid    by
           Article   227 of; the,Femal     Code?
              “2.  Does Artlclo  9.57 fnmirsh the Grand
           Jury with atithorlty ~to open ttie ballot boxeq
           and examine them, provided an issue is raised
           to warrant the Court tb grant such permission?”
          As facts you state that evidence reveals that one of
the election    officials,    while calling  the ballots  for the bene-
fit of the tally clerks,,called        the wrong name in a two-man race
on twenty-five     or more occasions    which were observed and subse-
quently reported by one of the tally clerks.          The tally clerk,
however, did not render such a ruport until more than ten days
after the election       and the tally clerk knowingly signed the
affidavit   on the offlclal     return forwarded to the County Demo-
cratic Committee.
           The statute   in ,qUestion     (Article     2?7,   V.P.C.)     reads as
follows:                                                           "
               “Any Judge or Clerk of an election,      khalr-
           man or member of a,~ljarty executive     committee,
           or officer     of a primary, special or general 3
           election,    who willfully   makes any false canvass
           of the votes cast at sudh election,       or a false
           statement of the result of a canvass of the
           ballots    cast shall be conclned In the penl-
                       not less than tti (2) nor more than
                      years. . . .'
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Honorable     Edna Cisneros,            page 2 (C-300)


        1. Is the miscalling                    of votes   covered       by Article     227
of the Pen@ Code?
         In order to answer this question                     It Is necessary to
determine what constitutes  a "canvass."                      Words and Phraaes
contains excerpts from other jurlsdlctlons                      to the following
tenor:
                 The canvass by the judges                 of election          2
        merely their            count.         Graham v. Peters,         93 N.E.
        315;     316,     248    Ill.     50    (1910).
                 That accused            as an election       officer         made
        marks on a tally                sheet    as another    offloer         called
        off     the votes        warranted a finding           that accused
            "counted"     and "canv8ssed"           the votes;          It being

        unnecessary         that he handle each ballot.                   Cominon-
        wealth v. ,Edgarton,               86 N.E. 768,       771,      200    Mass.

        318     (1909).
              A canvass of an ele~ctlon "includes  not
        only the oountlng of the vote,by the Inspectors,
        but the record of the,count by the poll clerks
        upon the tally sheet.    This tally sheet there-
        fore, is made a substantial    part of the canvass."
        In re Stewart, 48 N.Y.S. 957, 963, 24 App.Dlv:,
            .
               "A Canvass Is the act of examining and
        counting the returns of votes cast at a public
        election."    Gr@en v. Stoddard, 1Og.N.P.S. 2
        395, 398 (1931 I.
         It must be assumed that the Legislature   intended to
create a penal offense for any person who wllfully     did an act
which would cause any "canvass" of the'electlon    to be false.
The deliberate  miscalling.and recording  of votes as desoribed
In your letter  will make any canvass of the specified    election
false.
            The answer to your first               question    Is 'yes."

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Honorable    Edna Clsner@,      ,psge:, 3: (C-300)


        ,2.  Does Article  9.37 furnish the Grand Jury with au-
thority  to open the ballot boxes and examine them, provided an
Issue Is raised to warrant the Court to grant such permission?
           Article   9.37,   V.A.T.S.,     Election     Code, provides   as
follows:
               “At any time when the grand jury Is making
           an lnvestlgatlon     of any criminal vlolatlon     of
           the election    laws, and finds probable cause, a
           request may be made to a district         judge of that
           county for an orderdirected         to the Cdunty Clerk
           to permit the grand jury to examine the ballot
           box and ballots    therein In so far as may be
           necessary to detennlne the Issue at stake. Such
           o~rder may be lasued.by,,the     district   judge In his
           sound discretion.      Xri t‘hat case, the grand jury
           shall make such examination In seoret before a
           quorum off the grand jury and only then;         when
           such examination ia complete the boxes shall be
           relocked and returried to the custody of the
           County Clerk. ”
          There have been no ~eclslons,under     this ‘Article.  The
Blstorlca~    Comment furnlshed by the codifiers     and prepared by
Dr..A.P.    Cagle,‘Counsel  for the Election  Code Commission states
as follows:
               “This Is a new article.    It was Intended to
           reverse a court decision    that the grand jury
           had’no right to open an election    box. It places
           the matter within the sound discretion     of the
           district  judge. ”
           The answer to your second         question     Is “yes.”
                                SUMMARY
               The Intentional  mlscalllng     of votes to the,
           tally clerks constitute@     wllfully   making a
           false canvass of the votes cast at such election.
           Article  9.37 of the Eleotion Code furnishes the
           grand jury author1ty.t.o   open the ballot boxes
           and examine the cont,ents under appropriate
           orders from the district     court.
                                    Yours very truly,
                                    WAGGONER  CARR
                                    Attorney,General        of Texas

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Honorable   Edna Cisnertm,~page       4:~(C-300)




IiMF/br
APPROVED
OPINION COMMI!FTEE:
W. V.   Geppert, Chairman
Larry   ~Merrlman
Grady   Chandler
Cecil   Rotsch
Roger   Tyler
'APPROVEDFOR TEE ATTORNEY
                        GENERAL
 ms: Stanton Stone




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