Untitled Texas Attorney General Opinion ( 1952 )

THEA'ITORNEYGENERAL
OF TEXAS
I I
WVILL WILSON
*1TOWNEYG~NER*L
August 28, 1952
Hon. Raymond Ec Magee Opinion No*, V-i513
County Attorney
Galveston County Re: Procedure ,to place, a nare
Galveston, ‘Pexas on the ballot at the gen-
era1 election as an-de-
pendent candidate for a
Dear Sir: preoinot effic4i0
In your. r~eque st for an opinion you state that
a, groups of Galveston County citizens have approached
the County Jud e with. regard to running an independent
candidate for &he position of justice of the peace in
the forthcoming general election. In this connection,
you have requested a construction of Section 230, Xexar
Election Code ~(V.C.S. Election, Code, Art. 13.531,which
reads:
“Independent candidates for office at.
a county, city, or town election may have
their names printed upon the official bal-
l@ on application to the County Judge if
for a county office, or to the mayor If
tar a aity or towns office such appllcatlon
bring in the same form an A subject to the
same requirements herein prescribed for ap-
.plicatlonr to be tide ,tethe Secretary of
State in ease of State or district independ-
ent aomlnation~; provided, that in county
elect,ions It shall be necessary for nomina-
tion of independent candidate’s for the in-
depend,ent candidate to file a petition with
the County Judge, signed by five per cent
(5%) of the entire vote cast i,n, such county
at then last general
such candldatr
iice.
fora election
partic&
And provided further,
endorsing.
couuty o?*
in eleatlonr
for a city or town offLce it shall not be
neoessary that independen 1 candidates ” be
noabated but anyone otherwise qualified
harr his name printed on the official
artlcula? offY ce by flling
ication with the Mayor at
-- .-
I
L Hon. Raymond E. Rages, page 2 (i-1513)
. least thirty (30) days prior to the
election day and by paying such~fillng
fees as may be required by Statute or
by charter provision.”
. The questions which you have asked are:
(1)’ Does Section 230 apply to preofnct
’ offices?
(2) If Section 230 does ap$ly to pre-
cinct, offices, is the percentage of voter8
who mnst. stgn the applicati@n base.d en the
total number ‘bf Votes cagt in the~‘entire
cdunty or enly on the number of votes &n
that preainot?
,
Section 230 does not expressly ‘mention pre-
cinct offices. It st.ates that independent candidates
for a mtv ofrice may have their names placed on the
ballot on application to the county judge, but it con-
tainsno other provision which might be construed to
include ,,candidates for precinct offices. ,.We.must de-
teradne,‘whether .the Llgitilature thereby’ ititended to ex-
clude the placi g of :&he names of indepepdeut candidates
for precinct’ of f ices on the ballot or whether it intended
to embrace them within the term “county office.”
-~ In Section 237 of the Election Code, the words
“county office” are defined to mean ‘Iany office to be
r’ filled by the ohoice of the voter8 residing in only one
s (1) oounty or less than one (1) county.” This defini-
tion clearly includes precinct offices. However we are
of the opinion that the definitions In Section 237 were
intended to apply only to the provisions relating to cam-
fiaign expenditures found in Chapter 14 of the Election
Code, of which Seotion 237 is a part. We must therefore
.arrlve at the legislative intent in Section: 230 independ-
ontly of the d?flnition set out In Section 237.
Pr&ct office8 are mentiohed in numerous
‘jplaces throughout the Rlectlon Code, and generally the
statutes’applicable to them specify them by that name.
Rowever, the term usually appears in the phrase ncounty
and precinct office,n euounty or precinct office w or
;zF$;Flar phrase linking these two claseifica&me.
25 118, 18.5, 190, 203, 204, 208, 231, 233.
The elea~lon’procedures for these two type6 of offices
a’
Hon. Raymond E. Magee, page 3 (V-1513)
are consistently identical: application for a place
on the primary ballot Is filed in the same way; re-
turns are canvassed and certificates of nomination
:) and of election are issued in like manner. It is quite
natural that county and precinct offices are-treated
similarly, since precincts ‘are subdivisions -of the coun-
ty and the precinct officers -- justices of the peace
and constables as well as members of the commissioners~
court -- are under the general administrative jurisdic-
tion.of the county. Section 24, Article V of the Con-
stitution, which provides for the removal of “county
judges, county attorneys., clerks of the distrlct~ and
county courts, justices of ‘the peace, constabPes, and
other county officers 11 clearly treats a justice of the
peace as a county officer. ; i
Offices which ,&e filled at the general elec-
tion are ordinarily classified as state, district, coun- ;
ty and precinct. We believe the Legislature intended
in Sections 227 and~‘230 to authorize nominations of in-
dependent candidates for all offices to be filled at the
general election. Provision is made.for nominating
candzdalics for,: state s$d ‘district’ offices ;in Section: 227. r.
Although precinck eff$ce,s afe,@ot men’cfiodsd .by $h?t .hame
in fiection 230 we ar’e of the.,opinion th,$t tihey, ere in:
eluded within the ‘tern “county office” as used in that
section. As we have pointed out, precinct and county of-
fices are treated similarly throughout the election pro-
cesses, and there is no apparent ~reaaon for excluding
precinct offices ,in the nomination of independent candl-
dates. Accordingly, your first question is answered in
the affirmative.
In makingtthis holding we are not unmindful of
the dictum in Hamil on v. Mollpoe 28’7 Sew. 304 (Tex.Civ.
~pp. 1926 error dism. 116 Tex. 153 287 S.W. 306) to
the effect that the words “county oj!fices” in the Alec-
tion laws meant those to be filled by the electorate of
the entire county* Since the court relied in part on the
definition of Hcounty nomlnatlo~.” then contained in Arti-
cle 3168, V,c.S. (now .Sectlon 237 of the Election Code)
as being the nomination for any office to be filled by
the choice of the voters residing in only one’county 96.
understood how
Hoti, Bayamid IL Magee, Page 4 (V-1513)
contest statute (Ant, 3041, II.0.S. 1925) included the
office of school trustee, since ~a school district is
a subdivision of, the county,
In your s,econd question you ask how the per-
centage of voters who must s~lgn the application is to
be determined. Section 230 provides that the applica-
tion shall beg signed by five per cent of the entire
vote cast In such county at the last general election.
If it were not for the word "entire," we would have no
difficulty in concluding that this provision meant
for a precinct nomination, five per cent of the VoCe
cast in that particular preainct~ of the county. We
think the purpo,se of requiring a minimum number of sig- '~
natures is to' show that there is a sufficient number
of qualified voters supporting the nomination of the
proposed candidate to justify granting him a place on
the ballot. It would logically follow, and wee so hold
that the persons signing the application for a precinc z
nomination must be qualified voters of the preainct.
Since the electors in only a portion of the county will
be voting on a precinct office the same assurance of
support for a precinct candidaEe,is gained from requir-
ing endorsement by five per cent of the votes"cast ins.
the precinct as from requiring five per cent of 'the en-,
tire county vote for a candidate who is voted on by the
electors of the county as a whole. It would be reasoA-~
able to conclude that the Legislature 'intended that the
percentage of endorsements required for precinct nomi-
nees be computed on the basis of votes cast in the pre-
cinct s
When construed in conjunction with S.ection
227 it becomes apparent that the term .,mentire~ vote
cas E " means the number of votes east byall factionr
regardless of whether they were cast for regular par 4.y
nominees independent candidates,AondAated by petition,, ,.
or cand$ates whose Aataes were written in,: Thus it is
seen that this, provision does 'not necessarily mean the
vote cast A th nti e OAAQ If the nomination is
for an' office tz te fzll& by ihe voters of a pre'cinet
of the county, we think It, reqA$.res only that the appll-
cation be Signed by fiV0 Per eeAt of the entire vote
cast in that-preoihct. -
There is another reason for giving ,the statute
,thiS construCtiOn. LA a', ,COUAty .having eight justicei pre-
cinctr, :for esample it Is possible that the number ‘of
qualified electors 1 A that precinct would be less than
., . _
Hon. Ramnd E. Magea, page 5 (,%1513) ~“’
ten, ,per cent or even lers than five per cent, of
the vote ear 4 in ‘the. o&Ire oouAty. ‘Sinca the
&I.eetors slgnfng the application for a’preclnot
candidate mist be residents of that ‘precinct a re-
quirement that the application be signed by ,#lve
per cent of the entire county vote would’amQMt to a
virtual assurance of election before the WiAdidate
oould have his name placed on the ballot, or might .,
BvaA~prevent independent nomlnatlons altogether*
Certainly the ,Legislature could not have, intended
the latter result. We are also of the OP~A~OAthat
It had AO intention of,,requiriAg aA endorsement &ah
would be, tantamount to a’ guaranty of election before
a person. may become an IAdepeAdeAt candidate.’
*.” ‘.‘I < I
We are informed that AomiAatioA of, in&-
pendent candidates for county and~precindt officas
is customary in some of the counties of this State.
We have confirmatim of the practice followed IA c&y
oAe of these counties. ‘,The County Attorney of Guad-
.alupe County has advised us that candidates for&y
office Including precinct offices, have run a,s lnde-
penden c AOmiAeSS in that county for many years, aAd
that the number of signaturesrequired for precinct
candidates 1,s computed on the basis of the votes oa~rt
in the precinct. .Thls ractical construction whlah
has been given
-`` Section !!30 lends snmort to the cork-
elusions we have reached; Greenwoo?lmv, Cw
&&%2v186 S.W&I 1015 (TeX,ClV.App. 1945).
Independent candidates for precinct
offices may be Aomlnated IA accardance
with Section 230, Texas glection Code
(V.C.S. section Code, Art. 13.53,). They
are Included within the term “county of- ,
fice” as used in that section.
The number of qualified voters who
must sigA;;the application of an independ-’
ent candidate for a pr,eclnct office is
five per cent of the entire vote cast IA
HOA. Raymond E* tigee, page 6 (~1513)
that precinct at the last general elec-
@on.,, ‘The signers must be qualified
vd%iif$- of the- precinct,
APPROVED: very tn”uly pars,
J. C. Davis -PRICE DANIEL
County Affairs Divist.0~ Attorney, General
E. Jacobson
Reviewing Assistant
Charles D. Mathews
First (rssistant Assistant
MKW:wb