Untitled Texas Attorney General Opinion ( 1952 )

Hon. AlwinE, Pape Opinion No. V-1509
County Attorney
Guadalupe County Re: Statements of campaign con-
Seguin, Texas tributions and expenses re-
quired to be filed by in-
dependent candidates in
Dear Sir: general elections.
You have requested an opinion as to whether
independent candidates whose names are placed on the
general election ball& in accordance with Sections
227-230 of the Texas Election‘Code'(V.C.'S. .Election
Code, Arts. 13.5+13,53) must ~comply with then provisions
of Chapter 14 of the Election Code (Sets. 237-246; V.C.
S. Election Code, Arts. 14.01-14.10) relating to cam-
psign expenditures. You ask specifically:
"Does each candidate for office in the
independent column of the ballot at a gen-
eral election have to file all the sworn ex-
pense accounts and reports of contributions,
or file only one, after the general election
and within ten days thereafter?"
Chapter 14, Title 50, Revised Civil Statutes
of 1925, entitled "Limiting Campaign Expenditures" (Arts.
3168-3173, V.C.S.) applied only to candidates in primary
elections. Article 3168 defined a candidate as "any
person who has announced to any other person or to the
public that he is a candidate for the nomination for any
office which the laws of this State require to be deter-
mined by a primary election." Article 3172 required
"each candidate for nomination in a primary election" to
keep a record of moneys received or disbursed for cam-
paign purposes and to file state,ments of these receipts
and disbursements at stated intervals before and after
the primary. Other provisions of these statutes make it
quite clear that they included only candidates in primary
elections and did not extend to campaign expenditures
incurred after nomination in a primary. The only require-
ment placed upon candidates in the general election in
regard to campaign expenditures was found in Article 252,
Vernon's Penal Code, as follows:
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Hon. Alwin E. Pape, page 2 (v-1509)
‘Any candidate for any public office,
whether elected or not, who fails to file
with the county judge of his county within
ten deys after the date of a general elec-
tion an itemized statement of all money or
things of value paid or promised by him be-
fore or during his candidacy for such of-
fice including his traveling expenses,
hotel bills and money paid to newspapers,
and make an affidavit to the correctness
of such account, showing to whom paid or
promised, shall be fined not less than two
hundred nor more than five hundred dollars.”
With the adoption of the Election Code the
Legislature rewrote the campaign expenditure provisions
of Chapter 14, Title 50 so as to make them applicable
to general and special elections as wel3. as primary
elections, In place of the definition of “candidate”
quoted above, Section 237 of the Election Code now pro-
,vides:
“The word 1candidate’ shall mean any
person who has announced to any other per-
son or to the publ.ic that he is a ~candfdate
.for the nomination for or the election to
any office which the laws of this State re-
quire to be determined by an election.
The term ‘campaign expenditure’ as
&eGe;nafter used shall include any gift,
loan, or payment of money or other valuable
tNng or promise to give, lend, or pay money
or other valuable thing for the purpose of
furthering or opposing ?he candidacy of any
person for nomination for or election to any
county, district, or state office.”
Changes in the wording of. other sections in
this chapter conform to the inclusion of -general and
,,.special elections within its terms. Subdivision (f)
“of Section 244 (formerly Article 3172) now provides
that each candidate must file sworn statements of re-
ceipts and expenditures “at intervals of twenty (20)
days beginning sixty (60) days next preceding the date
of any election In which the candidate’s name annears
on the -.ballot a a .,I’ Subdivision (d) provides that
[‘any such statement filed by a candidate in a special
or general election must include all items not reported
in statements filed in previous elections preceding such
special or general election.t’ The affidav3.t form set
Hon. Alwin E. Pape, page 3 (v-1509)
out In subdivision (f) further shows that candidates
whose names appear on a general or special electio
ballot now must file the statements required by this
s.ectlon. _
The times at which statements must be filed
are set out in subdivisions (b) and (c) of Section 244,
as follows:
"0) Each candidate is hereby required
to file sworn statements of all gifts and
loans previously received and of all gifts,
loans and payments made and all debts in-
curre 4 . Such sworn statements shall and must
be filed at intecvals of twenty (20) days be-
ginning sixty (60) days next preceding the ,:
date of any election in which the candidate's
name appears on the ballot provided however,
that a sworn statement shall be file4 not
more than five (5) nor less than two (2) days
prior to the date of the election in which
the candidate's name ~appears on the ballot.
Provided, further, that there shall be filed
a sworn statement not more ~than twenty (20),
nor less than fifteen (15) days next preced-
ing the second or run-off primary election
and there shall be filed a second swornstate-
ment not more than five (5) nor less than two
(2) days next preceding the second or run-
off primary election in which the candidate's
name appears on the ~ballot. Such,sworn state-
ment shall also include an estimate of the
additional amount that the candidate will ex-
pend or become liable '. for in behalf of.his
candidacy from the time of the filing of the
sworn statement to and including the day of
the election.
"(c) Not less than ten (LO) days after
the election each candidate must file a sworn
supplemental statement of all gifts and loans
received prior to the election and of,all
gifts, loans, and payments made and debts ln-
curred prior to the election not specifically
Included in the sworn statement filed prior
to the election."
The first statement required of an independent
candidate in the general election is to be filed 60 days
Hon. Alwin E. Pape, page 4 (V-1509)
preceding the date of that election. Under Section
227 the application to have the name of an independent
can Aidate placed on the ballot may be filed within 30
days after the second primary election day so it is
possible that the application will not be hiled until
some time after the 60th day preceding the election.
nobfever; under the definition contained in Section 237,
a "candidate" means any person who has announced to any
other person or to the publJ& that he is a candidate
for the office, Our construction of these statutes is
that a person who, on or prior to 60 days before the
general election, has announced his intention to seek ,
election as an Independent candidate should file this
report, even though the application for placing his name
on the ballot has not been filed. A person who has not
then become a f'candidate" as defined in Section 237 ob-
viously is not required to file a statement on that
date.
The post-election statement required by subdi-
vision (c) of Section 244 is a suonleuental statement
of Items not reported prior to the election. Under Ar-
ticle 252 of the Penal Code, a candidate in the general
election heretofore has been required to file with the
county judge within 10 days after the election,a state-
ment of &!J. expenses incurred during his candidacy. The
~extension of Section 244 of the Election Code to general
elections raises the question of whether candidates in a
general election must still file the statement described
In Article 252, v.P,c.
Article 252 of the Penal Code was not express-
ly repealed by the Election Code. Section 247 of the
Election Code repeals "all laws and parts of laws In con-
flict herewith . 0 o in so far as such laws are in actual
conflict with the provisions of this Code." It cannot
be said that Article 252 is in actual conflict with Sec-
tion 244, for clearly it Is not impossible for a candi-
date to comply fully with both-provisions.
Section 2 of the bill by which the Election
code was enacted (H.B. 6, C:cts 52nd Leg., 1951, ch. 492)
reads:
"That all elections and all laws relat-
ing to suffrage and parties, as found in
Title 50 of the Revised Civil Statutes of
Texas of 1925, and all amendments thereto,
be and the same are hereby repealed, pro-
vided, however, that nothing in this Act
.
Hon. Alwin E. Papo, page 5 (V-1509)
shall be construed as repealing or in‘any
way affecting the legality of any penal
provision of the existing law; and th&a
Act shall be construed,to be anindepend-
ent Act of the Legislature enacted under
the caption hereof, and the Sections con-
tained in this Act, as revised, rewritten,
changed, combined and codifi.ed shall be
-the governing law of this State."
The extent to which these provisions alter
the ordinary rules of statutory construction is not
clearly ascertainable. We believe this section means
simply that a provision in the Penal Code is not re-
pealed unless some pzovision of the Election Code,
construed as an Independent act of the Legislature
would repeal it by implication. It is a recognize d
rule of statutory construction that where the Leglsla-
ture has enacted a statute which was intended to en-
brace the entire subject matter, prior statutes on the
same subject are repealed by implication.
Co. v. Citv of Hamli 142 Tex. 486, 179 S.w$?*
( 44) Meek v. Whee% Count 125 S.W.2d 331 (Tex.
Ctz. Aipm9) affirmed 13
-3 'Tex. 454 144 S W 2d
885; 39 Tex. Jur!., Statutzs, E 80. In $lew of-tie com-
pleteness with which Section 244 prescribes the state-
ments which a candidate in the general election must
file, we are inclined to the view that the Legislature
Intended Section 244 to be,a complete enactment cover-
ing the entlre,field of campaign expense reports. How-
ever, because of our uncertainty that this view would
be sustained by the courts, It is our advice that can-
didates, in order to be sure of compliance with statu-
tory requirements, also,flle the statement described
in Article 252 of the Penal Code.
SUMMARY
An Independent candidate in the general
election nominated in accordance with Sec-
tions 227-230, Texas Election Code (V.C.S.
Election Code, Arts. 13.50-13.53) must file
the statements of campaign recei ts and ex-
penditures required by Section 2 f:4 of the
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Hon. Alvin E. Pape, page 6 (V-1%9)
333;&.fon Code (V.C.S. ~EJ.ection,code, Art.
0 .
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
county Affairs Division 'Attorney General
E. Jacobson
Reviewing Assistant By *kyf % FW
Charles D. Mathews Mary K. Wall
First Assistant Assistant
MKW:wb
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