              E          0                     ENE
                       OF      S’EXAS

                      AUSTIN       aa.T~xas



                             May   2,   1962

Honorable W. G. Walley, Jr.                    Opinion No. WW-1325
Acting Criminal District Attorney
Jefferson County Courthouse                    Re:   Proper disposition of
Beaumont, Texas                                      Irregular ballots cast
                                                     In counties using voting
                                                     machines, under Sectlons
                                                     16, 18 and 20, Art. 7.14,
Dear Mr. Walley:                                     Texas Election Code.
     You have asked the following question:
           "We desire an opinion from your office
         on the proper disposition of irregular
         or paper roll ballots located on voting
         machines. In our minds, there appears to
         be a conflict in the statutes.
           If
            . . .
           "section 18 fif Art. 7.14, Election Codg
         requires
          . . . that the irregular ballots be filed
         witn tne canvass while Section 20 states that
         they shall be preserved in the same manner
         and for the same length of time as other
         ballots. . . ."
     Art. 7.14,   Texas Election Code, provides in part as
follows:
           "sec. 16.  Ballots voted for any person
         whose name does not appear on the ballot shall
         be designated 'irregular' ballots, but such
         ballots shall be valid and shall be counted
         as though they had been voted on the voting
         machines. Should a voter desire to vote for
         some person for an office whose name does
         not appear on the ballot, such person shall
         write the name of the person for whom he desires
         to vote on the roll of paper provided and
         designated for such purposes and such ballot
         shall be counted and included in the canvass
         officially made from that precinct, but no
         irregular ballot shall be cast or counted for
         any person whose name shall appear on the voting
         machine.
Honorable W. G. Walley, Jr., Page 2    Opinion No. WW-1325




           “Sec. 18. . . Irregular ballots, properly
         sealed and signed, shall be filed with the
         original statement of canvass, which canvass
         shall be delivered in the ssme manner and to
         the same authorities as now provided by law.
         . . .
           II
            . . .
           "Sec. 20.     Irregular ballots shall be
         preserved in'tie ssme manner and for the
         same length of time now provided by law for
         other ballots."
     We interpret this last sentence under Sec. 20, Art. 7.14,
Election Code, which refers to "other ballots," to mean the
same as ather paper ballots..
     With reference to the disposition of paper ballots, cast
in a general or special election, Art. 8.32, Election Code
states:
           "Immediately after counting votes by
         the managers of the election, the presiding
         officer shall place all the ballots voted,
         . . .9 into a wooden or metallic box, and
         shall securely fasten the box with nails,
         screws, or locks,.      and he shall im-
         mediately, D . ., ddl;:er said box to the
         county clerk of his county whose duty it
         shall be to keep the same securely. e . .'
     Art. 13.23, Election Code, has a similar provision with
respect to delivering the ballots and ballot boxes to the County
Clerk, in the case of primary elections.
     With reference to the length of time the clerk shall keep
the ballots, if they were cast in a general or special election,
Art. 8.32, Election Code provides:
            II
             . . . If no contest arose out of the
          election within six (6) months after the
          day of such election, said clerk shall des-
          troy the contents of said ballot box by
          burning the same."
     Concerning the length of time the clerk shall keep the
ballots, if they were cast in a primary election, Art. 13.28,
Election Code, provides:
,-




     Honorable W. G. Walley, Jr., Page 3     Opinion No. WW-1325


                "Ballot boxes, after being used in
              the primary elections, shall be returned
              to the County Cierks as provided in Section
              201 ,&t. 13.23, Election Codg of this
              Act, 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
              contents destroyed by the County Clerk and
              the County Judge without examination of any
              ballot at the expiration of sixty (60) days
              after such primary election. Provided that
              the District Judge, upon his own motion, or
              upon the request of the County or District
              Attorney, may, by an order entered on the
              minutes of the District Court, defer the
              destruction of the contents of such ballot
              boxes for a period not to exceed twelve
              (12) months after such primary election."
          Section 18, Art. 7.14, Election Code, states that the
     irregular bal.lots shall be filed with the original statement
     of canvass. The "statement of canvass" used in connection with
     voting machine results is the same instrument or document called
     a "return" in connection with the results of an election where
     paper ballots are used. Art. 8.29, Election Code, provides in
     part as follows:
                "When the ballots have all been counted
              the managers of the election in person shall
              make out triplicate returns of the same
              certified to be correct, and signed by them
              officially, shcwing: First, the total number
              of votes polled at such box; second, the
              number polled for each candidate; one of
              which returns, . . . shall be . . . delivered
              . . e to the county judge of the county;
              another of said returns, . . .) shall be
              delivered. . . to the county clerk of the
              county. . .; and the other of said returns,
              shall be kept by the presiding officer of
              the election for twelve (12) months from
              the day of the election. e . ."
          Art. 13.24, Election Code, has a similar provision with
     respect to the filing of the returns in the case of primary
     elections, except that the three copies of the returns are
     distributed as follows: one copy to the County Chairman, one
     copy to the County Clerk, and one copy sealed up in the ballot
     box with the ballots. While the disposition of two of the copies
                                                                            -.




Honorable   W. G. Walley,   Jr.,   Page 4            Opinion No. WW-1325


of the returns varies,      depending on the type of the election
(for Instance,     the county judge gets a copy in the case of a
general or special election,      while it Is the county chairman
who receives    the copy in the case of a primary election),            yet
the County Clerk always gets a copy in every case,               Neither
Art. 8.29 nor Art. 13.24 attempts to designate the various
copies of the returns as “original”,         ‘“duplicate,”    or “triplicate,”
except to say that the return shall be prepared in triplicate,
which means three copies.       Sec. 18, Art. 7.14 provides that the
Irregular   ballots   shall be filed with the “original”          statement
of canvass.     Which one of the copies of the returns or statement
of canvass Is the original?        The statute does not say, but In
the case of paper ballots,      Arts. 8.32 and 13.28, Elaction Code,
provide that such paper ballots       are delivered       to and kept by
the County Clerk.      The County Clerk is the proper custodian of
papar ballots,     and these lrragular    ballots     cast In connection
with voting machine alactions       should ba treated as “other ballots.”
Therefore,   we hold that the irregular        ballots    cast In a voting
precinct   which uses voting machines, “properly           aealad and signed”,
should be dellvared     to the County Clerk togethar with the copy
of the statement of the canvass for suoh precinct             which Is filed
with the Clerk.      Tha Clerk shall keep the ballots         for the length
of time provided In Art. 8.32, Election Coda, in the oasa of
genaral or special electlons,~%?nd as provided In Art., 13.28, In
the casa of primary alectlons.
                            SUMMARY
                 Irregular ballots,  as defined In
            Sec. 16, Art. 7.14, Election Code, shall
            ba delivered  with a copy of the statement
            of canvass to the County Clerk, as provided
            In Sec. 18, Art, 7.14, Election Code.
                   Such irregular ballots shall be
            presarved by the County Clerk for the length
            of time provided In Art. 8.32, Election Code,
            In the case of general or special elections,
            and for the langth of time provided In Art.
            13.28, Election Code, in the case of primary
            alactions.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas


                                   Byz
                                    fifl?A%FL
                                         Assistant
Honorable W. G. Walley,   Jr.,   Page 5   Opinion No. WW-1325


REF/cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Marietta McGregpr Payne
Henry Braswell
J. C. Davis
F. C. Jack Goodman
REVIEWEDFOR THE ATTORNEY  GENERAL
By: Houghton Brownlee, Jr.
