L..
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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
BW:djm:WB:wc

APPROVED JUNE 17, 1947
s/Price Daniel
ATTORNEY GENERAL OF TEXAS