Untitled Texas Attorney General Opinion ( 1962 )

E ORNEY GENERAL
OF%-EXAS
April 2, 1962
Honorable William Hunter Opinion No, NW-1294
District Attorney
69th Judicial District Re: Failure of candidate
319 Denrock Avenue to pay assessment as
Dalhart, Texas required by Art. 13.08
and 13.15, Texas Election
Dear Mr. Hunter: Code.
You have asked the following question:
"Article 13.08 of the Election Code pro-
vides for determining the amount of assess-
ment of the candidate and how that is paid,
and further provides for the final date of
payment. Art. 13.15 requires a filing fee
to be paid before the name is placed on the
ballot. If a candidate paid no assessment
by the final hour and date, but is the only
candidate for that position, should his name
appear in the list of candidates on the ballot
for that party in the November Election?"
Article 13.08,Texas Election Code, reads in part
as follows:
"Prior to the assessment of the candidates,
the county committee shall carefully estimate
the cost of printing the official ballots,
..., compensation of election officers and
clerks .... and all other necessary expenses
of holding the general and second primaries
in such county and on the second Monday in
February preceding each primary, shall appor-
tion such cost in such manner as in their judg-
ment is just and equitable among the various
candidates for nomination for district, county
and precinct offices, only ... The committee
shall, by resolution direct the chairman to
immediately mail to each person against whom
an assessment is made a statement of the amount
of such expenses apportioned to him, with the
request that he pay the same to the county
chairman on or before the Saturday before the
Honorable William Hunter, Page 2 Opinion No. WW-1294
third Monday in February thereafter. Candi-
dates filing subsequently shall pay the same
assessment prescribed for other candidates
for the office they seek, and shall have
one (1) week from the date they file in
which to pay said assessment. It shall be
sufficient to meet the requirements of this
law to mail by registered letter to the
chairman before the deadline herein provided,
as shown by the postmark on the letter, a money
order, a certified check, or a good personal
check."
Article 13.08a, Texas Election Code, which is applicable
only to counties having a population of 800,000 or more inhabitants,
appears to be more stringent in its terms than Art. 13.08, since
Art. 13.08a states, "The application and payment must be delivered
to the proper party chairman or secretary by the deadline for
making application for a place on the ballot, and it shall not be
sufficient for the application and payment to have been mailed
before the deadline unless they are actually delivered by the
deadline." ,&&phasis addedJ Article 13.0tIais not involved in
this opinion.
Section (a) of Article 13.15, Texas Election Code, with
reference to the Primary, reads as follows:
"No person's name shall be placed on the
ballot for a district, county or precinct
office who has not paid to the county
executive committee the amount of the
estimated expense of holding such primary
apportioned to him by the county executive
committee as hereinbefore provided."
Art. 6.01, Texas Election Code, in referring to the ballot
to be used in a General Election, states:
I,
The names shall appear on the
balioi &der the head of the party that
nominates them. I . ."
We assume from your question that you
. are ".
referring
. to
candidates for district, county ana precinct ofsice wno are
required by law to pay their assessment to the chairman of the
county executive committee, and not to candidates for state office
or for the Court of Civil Appeals or Congressman at Large, who
pay their filing fees to the state executive committee.
Honorable William Hunter, Page 3 Opinion No. WW-1294
It has been held in King v. Fitch, 181 S.W.2d 926 (Civ.
X App. 1944) and Fisher v. Dallas County Democratic Executive
Committee, 333 SW2d bo4 (Civ. APP., 1960) that payment of the
assessment two days after the deadline and one day after the
deadline, respectively, was substantial compliance with the
statute. But nowhere do we find that an announced candidate
may wholly fail to pay any assessment at all, and still be
entitled to have his name placed on the primary ballot. To
hold that such was the law would be contrary to the language
of the statute, and would prevent the holding of any primary
at all, since the assessments pay the expenses of the primary.
Your question skips over the primary and goes to the General
Election to be held in November. Certainly, no candidate's
name should appear as a nominee of his party on the General
Election ballot, if he is not selected as a nominee in the
primary except in cases of death of the nominee as provided
in Art. A .22, Election Code). Of course the voters may select
a nominee by write-in votes. But in the situation you have
outlined in your first question, the candidate has filed his
application for a place on the party ballot for the general
primary, and has not paid his assessment. We hold, therefore,
in answer to your question that if the candidate will not make
substantial compliance with Art. 13.15, Texas Election Code,
his name cannot appear on the primary ballot. If, thereafter,
he is not chosen *by the voters as their nominee by write-in
votes in the primary, his name cannot appear in the party
column on the General Election ballot as the nominee of the
party, as provided in Art. 6.01, Texas Election Code.
You have also asked the following question:
"If a party holds primary elections only
in part of the precincts in a county, but not
all, can or must a winning candidate's names
for that party appear on the November ballot?"
This question has already been answered by Attorney General's
Opinion No. V-1529, written in 1952 to County Attorney R. C.
Marshall of Hutchinson County, copy of which opinion is enclosed,
Your third question reads:
"Can a person convicted of a felony, who,
thereunder, served a penitentiary sentence and
had not received a pardon, have his name on the
Election Ballot, and if elected, is such candidate
qualified to hold the office?"
This last uestion has been answered by Attorney General's
Opinion No. O-2;t
98, written in 1940 to County Attorney J. W.
Strawn of Willacy County, copy of which is enclosed.
Honorable William Hunter, Page ;4 Opinion No. WW-1294
SUMMARY
A candidate who files for district,
county or precinct office, and who refuses
to pay the assessment set by the county
executive committee, is not eligible to
have his name printed on the ballot for the
general primary, as provided by Art. 13.15,
Texas Election Code.
Only the nominees of the party are
entitled to appear in the party column on
the General Election ballot. Art. 6.01,
Texas Election Code.
Yours very truly,
WILL WILSON
Attorney General of Texas
By: @% ++=
Riley Eugene Fletcher
Assistant
REF/cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Elmer McVey
Morgan Nesbitt
Gordon Zuber
Pat Bailey
REVIEWED FOR THE ATTORNEY GENERAL:
By: Houghton Brownlee, Jr.