                  OFFICE     OF   THE   ATTORNEY   GENERAL     OF    TEXAS
                                            AUSTIN , u




Honorwble Joe J. Fisher
Mstrlct  Attorney
Orange, Texa8
near Sir1                                opl.nlon wo. Q-7453
                                         Rer    Interpretation of
                                                Penal Code as to
                                                canvass of an elec




                 This acknowledges       your 1
is   in   part    as fol~ovs:
                           I would like    an



                                                            eve that the
                                                             st  Sor the can-
                                                     lly m$scall‘ed a ~NIII-
                                                       into the voting
                                                     g this ,evi&ence to
                                                     predioated’um      in?



                                   does not specifically    name the grand
                                          to go lnto’the    bal&ot boxes,
                                          court may cause to .be counted
                                                   cast in-any election.

           Section 153, page 558, Acts of the Texas Legislature,
 1905 (Arkcle   227, Chapter .4, Title 6, Penal Code, 1925) is a8
 rollowe I



                                                                                .
Eonorable   Joe J. Fisher,    page 2


            ‘Any judge or clerk of an election,    chaI.rman or
     member of a party executive      committee, or ofricer    of
     a primary special     or general election,  vho vIlltul1~
     makes any false canvass of the votes aast at such
     election,    or a false stateuent of the result of a
     canvass of the ballot8     cast shall be confined In the
     penite~tlary    not less than tvo nor more than five
     years.

             The first  construction  OS this act by the Court of
;;a~Inal    Appeala was In the case of Beach v. State, 171 S. Y. J
        f’he Court after revleving   numerous authorities  from other J
staies,    a?aong vhiah vere Ex Part6 Droun, 97 Cal, 83, 31 P. ‘840,
and Ex Parte Arnold, 123 MO. 256. 30 S. W. 768. held that ballot
boxes cannot be Op8&8d br the bailits      used is ivldence in orlml~
nal casea.
           In 1933 the Court of CrImInal Appeals again construed                   J’
Artlale  227,’ P. C. 19255r In the case of Carpoll v. State, 61 S. W.
(26) 1005, where the ballot boxes had been turned over to the
grand jury and examined by it.     After the lndlctment va8 returned,
tho ballot boxes YSW agab Introduced In ovidenoe upon tho trLs1
before the jury.

            After   oltlng   the case cf Beach v. State,   supre,   and re-,   .
vlevlng to the authorities    therein &ted, the Court oi CrImInal
Appeal8 held that the aonvlatlon     oould not be sustained for the
reason that the ballot boxer vere Improperly a&&ted       In ovidenoe
in violation   of &tic18   7270, C. C. P. 1925. The Court hold in
part  a1 r0110vs:
            “From the case OS Bx parte Brown, 97 Cal. 83,
      31 P. 840, 842, the folloving       quotation is taken:
      ‘We are aaked by couneel hov the declared Intention
      of the legislature     to punish frauds by oleatlon OS-
      ficers can be reconciled      ulth an Intention to prevent
      the use of the best mesns of proving suoh frauds. l l
      This railure    of provision,    houever, if, inde,ed, there
      vaa suoh fallwe,      cannot be remedied by the courts,
      but must be left to the legislature         itseli for amend-
      mat.     If It Ia thought neceasarJ to make the ballots
      av&iI.ilabIe as evidence in orlminal DroCeedInns~ the
    ..



.




         Honorable Joe J. Flrhor,    page 3


              lealslature     can do 80, under such llmltatlons     and re-
              strictions    as asp be deenad essential    to their lntegrltjt.
              the courts cannot open them for in          ti       Ith   t
              destroying    all safeguards,   except ~ieiaci?&itIc$ar
               judge iho-may order-them into court shall see proper
               to apply; nor without ImpaIrIn& In all cases, and pea-
               sib19 destroying    1~ taany, their value as evidence for
               the only purpose for vhlch the law has directed         their
               preservation.’
                    “The vlevs o? this court are In accord         vlth     the
              remarks quoted above.   (iQapbasIs oura)
                      It vi11 be noted from a reference    to the emphaslzed por-
         tlon of the opinion just quoted the Court of CrIdnal        Appeala stated
         that the only way to make ballots    available   as evldenae In orimIna1
         proceedings   must be through an act of the Legislaturej     and pursuant
         thereto the 48th Legislature    Ln 1943 at Its regular session amended
         Article   227 by the provisions  of House Bill 44, being Chapter 296,
         page 438, Act.8 of the 48th Le&slature,      by addIng the iolloving
         rentenao   to Artlole 227 as It then existed:
                      II
                               In all such cases, the Court shall have
               authoriiy’tg    unseal and open the ballot boxes, and the
               Court may count, or cause to be counted under its dl-
               rection.    the hallote cast in any election;   hovever,   In
               so doing the Court shall exercise    due diligence     to pro-
               serve the secrecy OS the ballots,    and upon aompletlon
               of such count the said ballot boxes vlth their original
               contents &all be resealed and redelivered       to the County
               Clerk vho shall keep the same until ordered by the Court
               to destroy tho same.m (Emphasis ours)
                      The emergency clause    reads   In part as follovsl

                       “The fact that the present lav provides a penalty
                for such violations,     but makes no provision for the In-
                tmduction    of the ball ts In e idence r ndms buch 1 Y
               ‘inoperative   and ineffeztive.   axd create: an enerzenci.
                . . .     (Emphasis oum)

                     It Is a fundamental rule of statutory    construction   that
          where ambiguous language Is contained in the statute,     the alroumstaances
          attending Its passage vhlah bear upon the leglalatlvo     Intent, and the
Honorable   Joe J. Fisher,   page 4


state of the law at the time of Its enactment, the conditions deslg-
nated to be dealt vlth, the good intended to be accomplished, and
the mlsohlef sought to be reuedled shall all be t&en into consld-
eretlon.
            Judge Sharp, speaking for the Supreme Court of Texas In
the case of &ignolIa Petroleum Company v. Walker, 83 9. W. (24) 929, J’
held as fqllovsr
             “No Inflexible      rule can be announced for the con-
     struction   of statutes.        However, the donlnant rule to
     be observed Is to give effect         to the Intention of the
     Lcglsla ture . Generally the Intent and meantng Is ob-
     tained primarily      f’rom tho language of the statute.      In”
     arriving   at the Intent and purpose of the law, It Is
     proper to consider        the history of the subject matter
     involved,   the end to be attained,       th& miachlof to be
     remedied, and the Durgoses to be aocomDlished.          . ,‘I
     wphasls     ours)
             The St&ate of the lav at the tiue of the 1943 auen&ent
Is well evidenced b the language of the Court in Its opinions in
Beach v, State and Earroll     v. state,    supra., to the effect   that the
ballot boxes could not be opened, and the ballots         could not be used
as evidence In criminal trials      for the reason that no legiSl6tiVe
provision   had been made therefor;    and to penalt their use would be
a violation   of the oonstitutlonal     socr8c.y of the ballot.
            The condltlons  designated to be dealt Qlth, the good ln-
tended to be accomplished,    and the mischief  sought to be remedied as
considered by the Legislature    were enbodied In the form of the 1993
amendment in order that the Court having jurisdiction     over the trial
of the felony offense created by Article     227 could permit the ballot
boxes to be opened and the ballots    counted under proper safeguards
which would maIntaIn and preserve the secrecy of the ballot.
            The fact that the 48th Legislature      l.n the emergency
cl&se   of House Bill 44, supra, stated that the Somer law provided
a penalty for violation    of the election   laws but made no provlslon
for the Introduction    of the ballots   in evidence Is persuasive    to
Bonorable Joe J. Fisher,        page 5


shov the leglslatlve   intent     OS providing a legal means Sor the
openLng of the ballot boxes and the introduction of the ballotr
in evidence upon the trial under the proper supervision of the
trial court upon indictment duly rendered and returned by Its
grand jury and under proper safeguard by the Court to Insure the
secrecy of the ballot.        The very phrase used In the emergency
clause, ‘makes no provisions for the introduction of the ballots
in evidence, ’ is persuasive of the lo&slative        intent that the
amendment should apply only to the counting of the ballots as
introduced in evidence upon the trial OS the cause, since it is
undisputed that vhlle the grand Jury may hear vltnesses and
examine evidence, nevertheless , there 1s no Introduction in evl-
de     of either tostlmony or exhibits before the grand j ury a8
contemplated by Article 227.
            If the 48th Legislature had intended that the ballot
boxes should be unsealed and the ballots counted by the grand
jury for the purpose of obtaining Sacts upon vhlch to base an in-
dlctuent, it oould have easily provided for such procedure by ap-
propriate phraseology.   And since Article  227 1s a penal statute,
no such 1eg;islatlve lntendment can be read into the language or
the amendment.
            It is thereiore the opinion of this Department that
the Dlstrlot Court of OrangeCounty has no authority to authorize
a grand jury of said County to open the ballot boxes or to count
the ballots ror the purpose of obtalnlng evidence upon vhloh to
predicate an Indictment.    Bovever, the Dlstrlot Court, after w
indictment has been returned to it, may, Fn its discretion,     upon
the trial of the cause, unseal and open the ballot boxes2 and the
Court may for itself   count or cause to be counted under Its dlreo-
tion the ballots  contained therein, exerclslng   due diligence  to
preserve       the secrecy   of the ballots.

           :                                      Yours very truly
                                               ATTORXEXOEMERAL
                                                            ,QF TEXAS

                                               BY C.X.
                                                    Rlchard   Assistant

                                                                .
