Untitled Texas Attorney General Opinion

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June 17, 1947
Hon. Weldon B. Davis Opinion No. V-257
County Attorney
Austin County Re: Length of time ballots must
Bellville, Texas remain in the ballot boxes
following special road tax
and county fund reallocation
electrons in Austin County.
Dear Mr. Davis:
Your request for an opinion of this Department is sub-
stantially as follows:
"On June 7th of this year there will be two
elections held in Austin County - one being a
15# special road tax election and the other for
the reallocation of county funds. Then on Aug.
23rd of this year there will be an election on
constitutional amendments,
"Austin County has enough ballot boxes to
supply it for the two elections to be held on
June 7th but if the ballots must remain in the
ballot boxes for one year before they can be
destroyed the county will not have enough ballot
boxes for the electlon to be held on Augus,t23rd.
"Question: Will the ballots of the election
held on June 7th have to remain in the ballot
boxes for one year before they can be destroyed
as required by Art. 3028 R.C.S. of Texas, or can
they be destroyed after 60 days as provided in
art. 3128 R.C.S. of Texas?"
Article 6791 Va. C. S, relating to special road tax elec-
tions, reads in part as follows:
II
0 0 . The tickets printed and to be voted
shall have written or printed on them the words:
"For the Tax" and'hgainst the Tax," and these who
favor the tax shall vote the ticket "For the Tax,"
and those who oppose the tax shall vote the ticket
"Against the Tax." The expenses of the election
shall be paid for by the county. An election
Hon. Weldon B. Davis - Page 2 'J-257
ordered within ninety days of a general election
shall be held on the day of the general election,
and as elections on other questions are held, but
otherwise the commissioners court shall order a
special election which shall be conducted as other
elections . . .'
Inasmuch as there is no special election law governing
the election for a reallocation of funds, the general laws of
the State of Texas are controlling.
Article 2923, Title 50, V. C. S. is as follows:
"The provisions of this title shall apply to
all elections held in this State, except as other-
wise provided herein."
Article 3028, Title 50, V. C. S., relating to general
elections, reads in part:
"Immediately after counting the votes by the
managers of election, the presiding officer shall
place all the ballots voted, together with one
poll tax list and one tally list, into a wooden
or metallic box, and shall securely fasten the box
with nails, screws or locks, and he shall, with-
in ten days after the election, Sundays and the
days of election excluded, deliver said box to the
county clerk of his county . e . whose duty it
shall be to keep the same securely; e . D If no
contest grows out of the election within one year
after the day of such election, the said clerk shall
destroy the contents of said ballot box by burning
the same."
Article 3128, relating to primary elections, is as fol-
lows:
"Ballot boxes after being used in primary
elections, shall be returned with the ballots
cast as they were deposited therein by the elec-
tion judges, locked and sealed, to the county
clerk, and unless there be a contest for a nomina-
tion 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 dis-
trict judge, upon his own motion or upon the re-
Hon. Weldon B. Davis - Page 3 v-257
quest of the county or district attorney, may,
by an order entered on the minutes of the dis-
trict Court, defer the destruction of the con-
tents of such ballot boxes for a period not ex-
ceeding twelve (12) months after such primary
election."
In the case of Beach v, State, 171 S.W. 715, in an
opinion b,yJudge Davidson, the Court of Criminal Appeals said:
"The Legislature by express authority of the
Constitution is required to pass such regulations
as may be deemed proper to guard the purity of
the ballot box, and such incident,almatters as
that body may think necessary, right and proper.
They have exercised their authority to the extent
of authorizing ballot boxes to be opened within
12 months in contested election cases, but have
not seen proper to go further. Their reasons
for not making further provisions are unnecessary
to discuss. That they have not done so settles
the question, and in enacting legislation with
reference to opening ballot boxes they imposed two
conditions which are binding upon this court;
First, ballot boxes cannot be opened except in
election contest cases; and, second, this can
only be done within 12 months; and to this may
be added the third, that these ballots are required
under criminal penalty to be burned at ,theend
of 12 months, and if ,theclerk does not do so, he
is subject to the punishment imposed in the Penal
Code."
It will be seen from the foregoing that the special road
tax election and the election for the re-allocation of county
funds would come within the purview of Article 3028, V. C. S.,
and pursuant to such authori,tyballots must remain in the bal-
lot boxes for a period of one year, Therefore, it is the
opinion of this Department that at the elections to be held in
Austin County on June 7th and August 23rd of this year, the
ballots cast at such elections must remain in the ballot boxes
for a period of one year before they may be destroyed. Article
3028, V.C.S., is controlling. The provisions of Article 3128,
V.C.S., apply only to primary elections held in the State of
Texas e
SUMMARY
Ballots to be cast at elections to be held
in Austin County to determine if county funds
.
Hon. Weldon B. Davis - Page 4 V-257
are to be reallocated and if a special road tax
is to be levied must remain in the ballot boxes
for one year after the date of such elections
before they are destroyed. (Art. 3028, V. C. 3.)
Very truly yours
ATTORNEY GENERAL OF TEXAS
s/Burnell Waldrep
Burnell Waldrep
Assistant
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APPROVED JUNE 17, 1947
s/Price Daniel
ATTORNEY GENERAL OF TEXAS