Untitled Texas Attorney General Opinion ( 1972 )

, .
Hon. John E. Fitzgibbon Opinion No. M- 1188
County Attorney
Webb County Courthouse Re: Whether, pursuant to
Laredc, Texas Sec. (h) of Article
14.08, Texas Election
Code, a party nominee
who failed to timely
file sworn expense
statements is precluded
from having his name
placed on the general
Dear Mr. Fitzgibbon: election ballot.
Your recent letter requesting ,the opinion of this
office concerning the referenced matter states, in part, as
follows:
"The events that resulted in this request
are as follows: Alfonso 'Poncho' De La Garza was
the Democratic winner of the Second Primary held
on June 3. 1972, over his opponent, and conse-
quently is now the Democratic nominee for the
office of the County Commissioner of Precinct 1,
Webb County, Texas.
"The First Primary was held on May 6, 1972.
In accordance with Article 14.08 of the Texas
Election Code, he filed timely on the 20th day
of April, 1972, an expense account with the
County Clerk for Webb County. After such elec-
ti,on he was required by such article to file a
supplemental sworn statement, not more than ten
days after the election. This he failed to do,
but he did fi,le a supplemental expense statement
-5797-
,
Hon. John E. Fitsgibbon, page 2, (M-1188)
with the Democratic County Chairman on the 11th
of Hay. 1972. Article 14.08 also requires a
candidate whose name is appearing on the ballot
at the second primary to file a similar sworn
statement with the County Clerk not less than
seven days nor more than ten days prior to the
election, and a similar supplemental sworn state-
ment not more than ten days after the election.
He failed to file such statement with the County
Clerk prior to the election, and failed to file
such statement after the election. He did, how-
ever, file a statement with the Democratic Chair-
man prior to the second primary on the 24th day
of Nay, 1972, and filed a statement after the
election with the Democratic Chairman on the 7th
day of June, 1972. On or about the 5th day of
July, 1972, the Democratic Chairman sent these
statements over to the office of the County
Clerk of Webb County, and such statements were
duly filed in such office, on the 5th day of
July, 1972 . . .
"In the County of Webb, there will appear
on the ballot at the General Election a Repub-
lican candidate for the office of the County Com-
missioner of Precinct 1, of Webb County, Texas.
Therefore, because of the omission of such filings
with the office of the County Clerk, the question
now being directed to the Attorney General is
whether or not Alfonso 'Poncho' De La Garza is
eligible to have his name placed on the ballot in
the November general election . . .II
The above facts recite that the candidate at issue
timely prepared all legally required sworn statements of
contributions received by him, pursuant to Sections (b) and
(c) of Article 14.08, Texas Election Code, but that he mis-
takenly filed these statements with the county Democratic
chairman, rather than properly filing them with the County
Clerk. It was solely for this reason that the statements
-5798-
Hon. John E. Fitsgibbon, page 3, (M-1188)
were not timely filed with the County Clerk. Your request must
be viewed, therefcre, in light of this salient fact.
The penalty for failing to timely file the sworn
statements with the County Clerk is set forth in Article 14.08,
Texas Election Code, as follows:
-'[h)Any candidate failing to file such sworn
statement at the tim? provided or swearing falsely
th?eebn~ sh,a1.1
be jub3ect to forfeiture, in accord-
ani!:!
wi,th the prccedJre stated in Section 245 of
this code (Art;cle 14.09>, of his right to have
his name placed upon the ballot at any subsequent
runoff or general election which would be necessary
for nomination or election to the term of office
which the candidate is seeking."
Article 14.09, Texas Election Code, provides, in
pertinent part, as follows:
"Any candidate who shall knowingly permit or
assent to the violation of any provision of this
Chapter by any campaign manager or assistant cam-
paign manager, or other person, shall thereby
forfeit his right to have his name placed upon
the primary ballot, or if nominated in the primary
election, to have 'his name placed on the official
ballot at the general election . . .
"Proceedings by quo warrant0 . . . may be
instituted at the suit of any citizen in the
district court of any county . . . against any
candidate who may be charged in such proceedings
with any such violation . . .'
The foregoing provisions of the Texas Election Code
have been construed many times by the courts of this State,
and three decisions are particularly apposite to the facts
set forth in your request.
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Hon. John E. Fitzgibbon, page 4. (M-1188)
In Thorp v. Murchison, 259 S.W.Zd 614 (Tex.Civ.App.
1953, no writ), Murchison received 24,956 votes for constable
of Travis County in the general election. His opponent, Thorp,
received 29 write-in vo,tes. Thcrp claimed Murchison had failed
to comply with Section (b) of Article 14.08. In Thorp, the
court stated that Section (h) of Article 14.08 was a penalty
statute, and therefore, had to be strictly construed (see,
also, Ramsey v., D'Jnloo, 146 Tex. 196, 205 S.W.Zd 979 (1947)),
and that a candidate who received a majority of the votes in
the general election did not entitle the candidate with the
second highest number of ,votes to be declared elected.
In State v. Crawford, 269 S.W.Zd 536 (Tex.Civ.App. 1954,
no writ) a quo warrant0 proceeding, the winning candidate for
iustice kf the peace in El Paso County filed his sworn state-
ment one day past the time limit required by Section (b) of
Article 14.08. The Court of Civil Appeals adopted the opinion
of the trial court, and held as follows concerning Section (h)
of the Article:
II’. . . We believe on such consideration of the
statute, the word "shall" and "must" as used here is
mandatory as to the filing of the statement, but is
directory only as to the time when it shall be filed.
"'In holding that the statute is mandatory in
requiring a candidate to file this statement and is
directory as to the time when such statement must be
filed we do not mean that a candidate must not
reasonably and substantially comply with the pro-
visions of the act as to time of filing this statement.
This he must do, and his failure to do so will be
grounds for excluding his name from the ballot, and
whether or not the candidate has reasonably and sub-
stantially complied with the provisions of the act will
be determined under the facts and circumstances of the
case as presented.
III . . .The purpose of requiring such statements
to be filed is that the same may be open to public
inspection that the voters may determine what persons
are influencing by contributing money or credit, or
other substantial aid to a candidate, that the public
-5800-
, I
Hon. John E. Fitzgibbon, page 5 (M-1188)
may intelligently determine whether or not they should
support such candidate . . .I" 269 S.W.Zd at 542.
(Emphasis added.)
Thus, the Crawford court held that Section (h) of Article
14.08, insofar as it relates to the time of filing, was directory,
not mandatory, and that the test of whether a candidate forfeits
his place on the ballot is whether he has substantially complied
so that the public may be informed of the nature and source of
his campaign contributions so as to cast an informed vote for or
against him. The candidate at issue in your request, in our
opinion, has met the criteria of the Crawford decision, inasmuch
as his sworn statements are now duly filed with the County Clerk
several months prior to the general election.
Moreover, the candidate at issue in your request certain-
ly meets the test of Gray v. State, 406 S.W.2d 934 (Tex.Civ.App.
1966, error dism.). In Gray, the winning candidate did not file
his sworn statement until six days after the primary election.
That court stated that:
"The prime legislative aim in the enactment of
the Election Code of the State of Texas was 'that the
will of the people shall prevail and that true
democracy shall not perish from the Lone Star State.'
V.A.T.S., Election Code, Art. 1.01. Any question
arising under the provisions of the Code should be
decided with due consideration given that objective.
"A question posed by the situation in the case
before us relates to the meaning, if any, to be
attributed to the word 'knowingly' in Art, 14.09
of the Election Code as applied to an occasion of
'nonfeasance', i.e., when the guilt or fault on the
part of the candidate for public office (or nomination
for public office) amounts only to a want of 'timely
compliance' with the provisions of Art. 14.08(b) . . .
It* * l
"We are convinced that only in an instance where
a candidate would intentionally and culpably delay
filing the required statement (in other words when he
would do so with actual or implied knowledge that the
electorate would be deceived concerning the identity
of those who were aiding him in his efforts to win
-5801-
. .
Hon. John E. Fitzgibbon, page 6 (M-1188)
a nomination or elective office and/or the amount of
aid being received therefrom) that such 'sin of
omission' should justify judicial deprivation of any
victory won in the subsequent election. If we are
correct in this conclusion then the word or term
'knowingly' . . . would mean that such delay or
omission was caused or permitted in an attempt to
influence the election." 406 S.W.2d at 935-36.
The rationale of the foregoing three court decisions
is also supported by Attorney General's Opinion No. W-1380
(1962), which held that a county Democratic chairman and a
county Democratic executive committee had the duty to certify
the candidate who received the majority of votes in the second
primary, even though the candidate did not timely file his sworn
statement pursuant to Sections (b) and (c) of Article 14.08.
In view of the foregoing authorities, and under the
facts submitted in your request, you are advised that Alfonso
"Poncho" De La Garza is eligible to have his name,placed on the
ballot in the general election to be held on November 7, 1972.
SUMMARY
In the instant fact situation, the candidate
at issue timely prepared all required sworn state-
ments, as required by Article 14.08, Texas Election
Code, but mistakenly filed them with the county
Democratic chairman, rather than the county clerk.
Under the circumstances, this office is of the
opinion that the candidate has met the "substantial
compliance" test of previous court decisions, and
is eligible to have his name placed on the ballot
for the general election to be held on November 7,
1972.
truly yours,
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
-5802-
Hon. John E. Fitzgibbon, page 7 (M-1188)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Bill Flanary
Bob Gauss
Scott Garrison
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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