Untitled Texas Attorney General Opinion ( 1960 )

THEAITORNEY GENERAL
OF TEXAS
Aus- IX.TEXA~
WI& WILSON
*x-r0RNEY GENERAI. September 26, 1960
Honorable Zollie Steakley Opinion No. W-944
Secretary of State
Austin, Texas Re: Whether nominations
made by the county
convention of a
political party which
is not required to
hold primary elections
should be certified to
the Secretary of State
or to the county clerk,
Dear Mr. Steakley:
Your request for an opinion reads as follows:
"The Constitution Party has tendered to this
office the certificate of the Harris County Chair-
man of the Party'listing the candidates of said
party for certain county offices in Harris County.
The certificate was tendered for the purpose of
certification by this office to the County Clerk
of Harris County of such candidates for a place
on the general election ballot in Harris County.
"The Chairman stated In connection with his
tender of the certificate that the County Clerk
of Harris County has refused to accept such certi-
ficate direotly to the county clerk and has taken
the position that it Is the responsibility of the
Secretary of State to certify these candidates for
county office under Article 13.48 of the Texas
Election Code.
"Please advise Immediately whether or not it
is the duty of this office to accept the certificate
described above, and to certify the candidates for
county office shown therein to the County Clerk of
Harris County for the general election ballot, or
if it is the legal duty of the County Clerk of Har-
ris County to accept such a certificate tendered to
him."
Honorable Zollie Steakley, page 2 (Wk-944)
Article 13.46 of the Election Code provides that
the state committee of a political party which is not
required to make nomination by a primary election shall
decide whether the party will nominate state, district
and county officers by convention or by primary elec-
tions, and shall certify their decision to the Secretary
of State. If nominations are to be made by convention,
the nominations for county offices are made by the county
conventions held in accordance with Article 13.47.
Article 13.48 provides for certification of the
party's nominees in the following language:
"Allynominations so made by a State or dis-
trict convention shall be certified by the ohalr-
man of the State or district committee of such
party to the Secretary of State and a nomination
made by a county convention, by the chairman of
the county committee."
This statute as first enacted in 1905 as part of the Terre11
Election Law (Acts 29th Leg., 1st C.S., Ch. 11, Sec. gg),
read as follows:
"All nominations so made by a State or dis-
trict conventions shall be certified by the chalr-
man of the State or district committees of such
parties to the Secretary of State, and nomlna-
tions made by county conventions by the chairman
of the county committee.”
It was carried forward into the Revisions of 1911 and 1925
exactly in its present form, except that in these revisions
there was a comma after "Secretary of State".
The State Executive Committee of the Constitution
Party, which comes within these statutes, decided that the
party's nominations for the 1960 general election were to be
made by convention and certified the deaision to the Secre-
tary of State as required by Article 13.46.
Unquestionably, a party whiah has complied with Ar-
ticles 13.46 and 13.47 Is entitled to certify its nominees
to some officer of the State, and the nominees are entitled
to have their names placed on the ballot upon certification
by the county chairman in proper form. Uncertainty of the
State's administrative officers as to which of them has au-
thority to aocept the certificate should not defeat the right
of the candidates to appear on the ballot.
.
.‘..
Honorable Zollie Steakley, page 3 (W-944)
A reading of Article 13.48 reveals immediately that
It does not clearly state to whom the nominations made by
a county convention are to be certified. It Is susceptible
of two constructions. The first Is that the statute fails
to designate any officer to receive the certificate. The
second is that the designation of the Secretary of State in
the first clause should be read into the last clause; that
Is, that a nomination by a county convention shall be certi-
fied ---
to the same officer by the chairman of the county
committee.
We have not found any court decision resolving this
question of construction. Couch v. Hill, 10 S.W.2d 170 (Tex.
Civ.App. 1928, error diem.), and Pulliam v. Trawalter, 120
S.W.2d 108 (Tex.Civ.App. 1938), are the only cases we have
found Involving a oertification of a nomination made by a
county convention which was governed by Article 13.48. In
the Couch case, the certification had been made directly to
the county clerk. In Pulliam v. Trawalter, the opinion does
not disclose whether the certifi ti h d been made directly
to the county clerk, but you hav~ain~rm~d us that the records
of your office do not show that the certificate passed through
the Secretary of State's office. The question of whether the
certificate had been submitted to the proper officer was not
before the oourt in either of these oases, and the question was
not raised or disoussed in either opinion.
The question also has not been previously ruled on by
the Attorney General's office. Attorney General's Opinion
V-1529 (1952) considered the county clerk's,authority to pass
on the validity of nominations whiah had been made by a county
convention and certified directly to him by the county chair-
man, but the question of whether the nominees should originally
have been certified to some other officer was not involved in
the request. That opinion was written by the writer of the
present opinion. For reasons similar to those to be developed
in the present opinion, it was thought that oertiflcation
directly to the oounty clerk would not be fatal to his au-
thority to place the names of the nominees on the ballot and
that it was therefore unnecessary for this office to raise
and discuss the propriety of the direct certification when it
had not been raised in the opinion request.
Since the courts have not ruled on your authority to
accept certifications of nominations made by county conven-
tions, your request makes it necessary to review the argu-
ments which can be advanced In support of the two possible
construotlons and to advise you on what course you should
take in the present situation.
Honorable Zollie Steakley, page 4 (WW-944)
In opposition to the construction that the statute
designates the Secretary of State as the officer to re-
ceive the certificate, it could be argued that certlfica-
tion of county nominations to the Secretary of State is in-
congruous with other provisions of the Election Code and there
appears to be no reason why the Legislature should have in-
tended to deviate from the pattern for requiring certifica-
tion of county nominations to a county officer. In all other
instances, the certlfioation is either to the county clerk
or to the county judge. Certification of county nominations
in primary eleations is made to the county clerk. Art. 13.25.
A substitute nomination to fill a vacancy in a nomination is
certified to the county judge. Art. 13.56. Nominations by
parties without state organization, whether made by primary
election or by convention, are certified to the county clerk.
Art. 13.54. Applications of independent candidates are filed
with the county judge. Art. 13.53. It is a settled rule of
construction that a statute is to be construed in conjunction
with other statutes in pari materia, and this rule of con-
struction lends suppvment that the Legislature
did not intend to route these county nominations through the
Secretary of State.
A possible argument in refutation of the contention
that there would be no reason for routing the certifications
through the Secretary of State is that the propriety of con-
vention nominations depends on the adoption of that method
of nomination by the state executive committee, whose deci-
sion is certified to the Secretary of State (Art. 13.46),
and he would be the officer possessed of knowledge as to
the method which the committee had chosen. On the other
hand, it could be argued that if the Legislature intended
to require certification to the Secretary of State, there
would have been no reason for placin county nominations
in a separate clause in Article 13.4% , as this meaning could
have been expressed more directly and clearly by making the
statute read that "all nominations so made by a State, dis-
trict, or county convention shall be certified by the chair-
man of the State, districtnor county committee of such party
to the Secretary of State.
It could also be urged in support of the second
construction that, like Nature, the law abhors a vacuum,
and that the statute should not be construed to leave a
void if it can reasonably be construed otherwise. However,
other instances can be pointed out where the Lagislature,
apparently through oversight, failed to provide the method
for certifying certain nominatlons,and it cannot be said
with assurance that this is not another example of oversight. ~:~
For example, until the addition of the last sentence of Ar-
ticle 13.25 in 1951, there was no provision for certification
Honorable Zollie Steakley, Page 5 (WW-944)
of district nominations made in second primary elections,
and there is still no express provision governing certi-
fication of county and precinct nominations made in the
second primary, There is no statute providing how presl-
dential elector candidates shall be certified. Prior to
the addition of the last sentence of Article 1.03 In 1951,
except for independent candidates (Art. 13.52) there was
no provision directing the Secretary of State to certify
to the county clerks the names of state and district candl-
dates which had been certified to him.
Against the construction that these county nomlna-
tions are to be certified to the Secretary of State, It could
be pointed out that Article 1.03 makes no mention of county
nominations in providing for certification by the Secretary
of State to the county clerks. The provision which was added
to Article 1.03 in 1951 reads as follows:
" l l l The Secretary of State shall at the
seme time ,@at he is required to furnish forms
of election blanks to each county judgg certify
to each county clerk a list of all the candidates
who have been nominated for state office and for
district office where the district consists of
more than one county, if said distriat nominees
have not been certified directly to the county
clerk."
Since this statute makes no mention whatever of
county nominations, It could be argued that It evidences a
legislative construction that the Election Code does not re-
quire certification of any county nominations to the Secre-
tary of State.
%Chere may still be a hiatus in Article 1.03 with respect
to district offices in districts of only one county, inasmuch
as Arts. 13.48 and 13.56 provide for certification of district
nominations to the Secretary of State without excluding districts
of only one county. Also cf. Arts. 13.50-13.52, relating to in-
dependent candidates. What effect the addition of this provi-
sion had on the method of making or certifying one-county dis-
trict nominations, and conjecture on how it happened to be draft-
ed in language omitting one-county districts, are outside the
scope of this opinion. The significant fact for the purpose of
this opinion is that the statute totally fails to mention county
nominations, and it could be argued that this omission would not
likely have occurred if the Legislature had intended that nomi-
nations by county conventions were to be certified to the Secre-
tary of State. However, if it should be held that Art. 13.48
does require certification of county nominations to him, it is
his duty to certify the nominations to the proper county clerks
though there is no express statutory provision for it. Seay v.
Latham, 143 Tex. 1, 182 S.W.2d 251 (1944).
.
._
Honorable Zollle Steakley, page 6 (WW-944)
The administrative construction which has been
placed on a statute is of persuasive force in determining
the meaning of a doubtful provision, and prior admlnistra-
tive construction is of compelling force where the statute
has been re-enacted without substantial change. "It is a
very well-established rule there where a statute of doubtful
construction has been construed by executive officers of the
State charged with its execution, and it has subsequently
been re-enacted without substantial change of language, it
will continue to receive the same construction.R Stanford v.
Butler, 142 Tex. 692, 181 S.W. 269 1944). If we are correct
in our conclusion that Article 13.4A does not clearly require
certification to the Secretary of State, and if it could be
shown that the established administrative construction prior
to 1951 was against that interpretation, it would follow that
the statute should continue to receive the same construction
after its re-enactment in 1951.
You have informed us that records of certifications
in the Secretary of State's office prior to 1931 are not
available, but that you have examined the records from 1931
through 1958 and have found no instance where the Secretary
of State has received and acted on a certification of a county
nomination. Of course, the fact that the Secretary of State
has not received any such certificates does not of itself show
that such nominations have been made and certified directly
to the county clerk. While nominations for county offices by
statewide parties not holding primaries has been the exception
more often than the rule, it seems unlikely that they have
been so sporadic that no pattern of administrative construc-
tion has been established. Three known instances of county
nominations have been cited in this opinion (Couch v. Hill,
Pulliam v. Trawalter, Att'y Qen. Op. V-1529, supra). How-
ever, we have no readily available means of obtaining informa-
tion on the number of times that county conventions have nomi-
nated candidates, and in the absence of more evidence as to
the number of such nominations we are unable to say that com-
pelling weight should be given to prior administrative con-
struction.
If Article 13.48 fails to name the officer to whom
county convention nominations are to be certified, it would
be proper for the county chairman to make the certification
to the officer named in other statutes regulating analogous
nominations. Morris v. Mims, 224 S.W. 587 (Tex.Civ.App. 1920).
That case held that where the statute prescribed no method
by which a new party might make nominations, it had the right
to pursue any reasonable method not prohibited by law, and
the party having made nominations for state offices by one
of the methods presoribed by statute for making nominations
.
I -
Honorable Zollie Steakley, page 7 (WW-944)
by pre-existing parties and having properly certified
the nominations to the Searetary of State, it was his
duty to certify the names of the candidates to the proper
election officers to be placed on the official ballot as
the nominees of the party. By like,reasoning, if Article
13.48 does not specify the officer to whom county nomina-
tions are to be made, the county chairman may pursue the
course prescribed In some other statute relating to county
nominations. As previously noted, all other county nomi-
nations are certified either to the county judge or to the
county clerk. Nominations which are certified to the county
judge must in turn be certified by him to the county clerk,
as the county clerk is the officer who posts the names of
the nominees and orders their names placed on the ballot.
Art. 13.32, Election Code. There is no apparent reason why
a county convention nomination should be certified to the
county judge. If Article 13.48 does not require certifica-
tion to the Secretary of State, we are of the opinion that
the nominations could be certified directly to the county
clerk.
After considering all the arguments, we are unable
to statecategorically that Article 13.48 does not require
certification to the Secretary of State. We are equally
unable to state that it does. Needless to say, neither
your office nor our office has the final authority to con-
strue the statute; that authority rests with the courts.
'Iheopinion you are seeking from us is not for the purpose
of finally resolving the question but to obtain advice on
what you should do In the present situation. As we have
said, the uncertainty of the State's officers as to which
of them has the authority to accept the certificate should
not defeat the right of the nominees to have their names
placed on the ballot. Where there has been no prior judi-
cial construction, we believe that a court would order the
names of the nominees placed on the ballot upon tender of
the certificate in proper form and in due time to either
the Secretary of State or the county clerk. Our advice is
that, in the absenae of a judicial construction, you should
accept the certificate tendered to you and in turn certify
the names of the nominees to the County Clerk of Harris
County.
SUMMARY
Article 13.48 of the Election Code is suscep-
tible of two constructions, the first being that
the statute does not specify to whom county con-
vention nominations are to be certified and the
second being that the nominations are to be certi-
fled to the Secretary of State. If the first
Honorable Zollie Steakley, page 8 (WW-944)
construction is correct, the certification may
be made to the county clerk. There having been
no judicial interpretation of the statute, the
Secretary of State should accept a certificate
of nominations by a county convention which has
been tendered to him and should in turn certify
the nominees to the county clerk.
Yours very truly,
WILL WILSON
Attorney General of Texas
Assistant
MKW:lJb:bh
APPROVED:
OPINION COMMITTEE
W. V. Qeppert, Chairman
J. C. Davis, Jr.
Riley Eugene Fletoher
Tom I. McFarling
Leon F. Pesek
REVIEWED FOR THE ATTORNEY
GENERAL BY:
Leonard Passmore