Untitled Texas Attorney General Opinion ( 1958 )

Honorable Llnton S. Savage Opinion No. NW-509
County Attorney
Nueces County Re: Authority of the County
CorDu.sChri~sti,Texas Judge with respect to
sufficiency of appiica-
tions of independent can-
didates for the office of
Dear Mr. Savage: County Attorney.
Your request for an opinion reads as follows:
"Four applicants for the ~office of County At-
torney have heretofore filed with the County Judge
their four several petitions to have-their names
placed upon the baliot In the general election on
Novemb.er4, 1958, under the column for 'independ-
ents:. These petitions were purportedly filed pur-
suanc to the provisions of Art. 13.53, Election
Code.
"The incumbent County Attorney resigned Sep-
tember 19, 1958, and the vacancy was filled on the
same date by appointment by the Commissioners Court.
"Four applicants filed petitions to have their
names placed on the ballot as heretofore set out.
One petition was not signed by five per cent of the
entire vote cast in Nueces County at the last gen-
eral election. The other three petitions apparently
have more than five per cent of the number of votes
so cast, but in many cases names were signed by
friends, husbands or wives, rather than by the in-
dividual rzihose
name appears on the petition. Also
in many cases the applicant notarized the signatures
of many of the signers, and notaries acknowledged
the signatures of their husband or wife, and rela-
tives.
"None of the petitions, except the one which
did no,tbear a sufficient number of signatureqwas
accompanied by a five dollar fee pursuant to Art.
4.10 of the Election Code.
Honorable Linton S, Savage, page 2 (WW-509)
"A careful perusal of the Election Code seems
to indica.tetha,:.
AX-%.13-53 pertains to 'nominationsl,
whereas Art. 4.10 pertains to elections. That is,
Art. 13.53 pertains to the method by which a candi-
date might secure a nomination to appear on the gen-
eral election ballot.in the general election as an
'independent' candidate, a party candi.dateon the in-
dependent ticket. 7%~ is further borne out by the
very wording of the Art.icleitself, the last sentence
of which reads: 'And provided further, in elections
for a-city or town office, it shall not be necessary
that independent.candidat.esbe nomina+ed, but anyone
otherwise qualified may have his name printed upon
the official ballot for a particuiar office by filing
his sworn application with the Mayor at least thirty
(30) days prior to the election day and by paying
such filing fees as may be required by statute or by
charter provision. I
"And, Art. 13.50 of t.heCede makes the same in-
ference of 'independents as a party by stating 'the
name of a non-partisan or independent candidate'.
"Keeping in mind that we have a vacancy of term
and not of office here, and the offi~ceof County Attor-
ney was not subject to being filled by election, at
this general election, it would seem that the proper
way to fill it would be on a non-partisan basis by spe-
cial election prusuant t,oArt. 4.10 of the Election
Code, one of the requirements of which is the payment
of a five dollar filing fee.
"Premises considered we r~equestanswer to the fol-
lowing questions: One. Can names be counted if not
signed by the individual whose name appears? Two.
Can the names be count.edwhen the applicant notarizes
the signatures of the signers? Three. Can the names
be counted~if the notary acknowledges the signatures
of husband, wife or relative? ?=I;?. Can signatures
obtained on a petition prior to the date of resigna-
tion of the County At~tornsybe counted? Five. Must
the County Judge certify the applicants'names to ap-
pear on the general election ballot in the column
marked independent if the five dollar fee.required
under Art. 4.10 of the Election Code did not accompany
the petition?'
In Attorney General's Opinion ``-367 (1958), this
office held that Articles 13.50-13.53, Vernon's Texas Election
Code, govern the candidacy of independent candidates for an
. r
Honorable Linton S. Savage, page 3 (\$fif-gC?)
unexpired term in the office of County Attorney, except in
certain respects not here material.
Article 13.53 requires that the application on
behalf of an independent candidate for a county office be
signed by five per cent of the entire vote cast in the county
at the last general election, The signers must be qualified
voters of the county who have not voted at a primary election
at which a nomination for that office was made and must take
the oath required by Article 13.51. The application of's
'candidatefor a county office is filed with the County Judge,
who, upon determination that an application conforms to the
statutory requirements, issues an instruction to the County
Clerk to place the candidate's name on the ballot in the
independent column.
The purpose ofTthe requested opinio; is for ad-
vice to ~the County Judge in acting on the applications. The
questions will be answered from the standpoint of the au-
thority of the County Judge to act on the applications rather
than from the standpoint of their sufficiency as tested in a
court. The County Judge acts in an administrative capacity
only in passing on the applications. Dancy v. Hunt, 294 S.W.2d
159 (Tex. Civ. App.,1956) (concurring opinion).
Your first question is: Can names be counted if
not signed by the individual whose name appears?
It is not clear from your statement of facts
>lhichof the following sit.l?ationsobtains in this instance:
(1) ths signatures were purportedly written by the persons
whose names are signed and an inference that they were signed
by someone else can be drawn from similarity in handwriting
between these and other signatures on the application; (2)
the signatures were purportedly written by the persons whose
names are signed but proof that they were written by someone
else depends entirely on evidence outside the application;
(3) the application shows on its face that the names were
signed by some other person as agent for the voter. However,
we are of the opinion that the result is the same in each of
these possible situations and that the County Judge has no
authority to refuse to count the names.
In Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d
938 (1954). the Suareme Court considered the authoritv of the
Secretary of State to determine, among other things, whether
signatures on the application of an independent candidate for
a district office were forged and to disregard signatures
which he found to be forgeries in ascertaining whether the
requisite number of qualified voters had signed the application.
.
Honorable Linton S. Sava&e, page 4 (WW-509)
The Court held that the.Secrefary of State (whose authority
with respect to applications f?r state and district offices
is the same as that of tineCounty Judge with respect to
county offices) may make cert;in factual determinations from
an examination of the application and the records, but that
he has no authority to cond?lctan independent factual investi-
gation. The ruling was in t~ie langu%ge:
"Impliedly Fe flecretzry of Statd is
authorized to review the records, to check
the signer's name against the poll tax or
certificate of exempt:;ion
lists and to ascer-
tain if the signer is disqualified from having
voted in the prima.ryin8 other irregularittes
or defects that may be shown upon t5e face of
the petition and t:heresords. T?:eSecretary of
State is in no position to conduct an independent
factual investigaticn nor woiildtime permit. He
has before him, so far as the contested issues
of fact in this case are concerned, only those
affidavits submitted by the interested parties.
In some of these affidavits it is recited by
the affiant tiizthe did not appear before a
notary public and was unaware of-the purpose of
the petition, while other affidavits are made
by persons on hearsay. If in fact signatures
have been obtained by means of fraudulent repre-
sentations and by forgery and by the taking of
false affidavits t?.ewrongdoers may be subjected
to criminal pen.alties.Indeed it appears that
indictments have already been returned by the
grand jury against certain of the notaries public
for making false certificates."
The Court also said:
"As to the 30 signatures which were stricken
by the Secretary of State on the ground that they
were obtained by means.oi fraudulent .and untrue
representations, we are of the opinion that the
Secretary of State is not clotled with the au-
thority to determine disputed questions of fact."
From this case and Ferris v. Carlson, 314 S.W.2d
577 (Tex.Sup. 19583, it appears that the records which the
officer is authorized to exaimline
are official .records only.
Under the holding in the Weatherly case, we think
the County Judge has no authority to eliminate names from the
application on the ground that signatures purportedly signed
Ronorable Linton S, Savage, page 5 (W-509)
by t‘nevoter himself are not enuine. Also see In re Murphy,
178 N.Y.S. 236 (App.Div. 1919 . This would be true whether
the proof of falseness of the signature depended wholly on
evidence outside the application or was partially supported
by inference drawn from the application, since in the latter
instance full p~roofof forgery would depend on extraneous
evidence.
We also think that the County Judge has no au-
thority to disregard signatures which are shown to have been
'signed by'someone else as agent. In our opinion, the signa-
ture of a voter on the application is not required by way
of providing a means of identification and authentication of
the genuineness of the individual's signature, but merely by
way of showing that he is supporting the candidacy of the
person whose application he signs. In Attorney General's
Opinion V-1513 (1954) we expressed the opinion that the pur-
pose of requiring a minimum number of signatures is to show
that there is a. sufficient number of qualified voters sup-
porting the nomination of the proposed candidate to justify
granting him a place on the ballot. Even where one purpose
of signatures is to provide a means of identification, as is
the case, for example, on applications and affidavits for
absentee ballots and on ballot stubs, someone else may sign
the voter's name for him in certain instances. See Article
5.05, Subdivisions 2, 3, 4 and 6, and Article 8.15 of the
Rlection Code. It is our opinion that a person eligible to
sign the application of an independent candidate but incapable
of signing his name by reason of physical disability clearly
may aut‘norizesomeone else to sign his name for him, with a
showing on the face of the application that his name is signed
for him by the other individual, provided he himself actuaily
makes the oath required of signers. Regardless of whether a
voter could authorize someone else to sign for him under
other circumstances, we think that in instances where the ap-
plication shows that the name was signed for the voter by
someone else a prima facie presumption would obtain that the
signature was made upon proper authorization of the vo.ter
whose name appears and that the oath'was properly administered
to the person for whom the signature was made. In such in-
stances, the County Judge would have no authority to conduct
an investigation to establish a contrary fact, under the
principles of the Weatherly case.
It is not necessary to consider whether a signa-
ture , properly authorized to be made by someone else, would be
iniialidfor lack of a showing on the application that it was
in fact written by someone else, since proof that the signa-
ture was not the voter's own signature would first have to
be established and, as already seen, the County Judge could
.
Honorable Linton S. Savage, page 6 (W-509)
not inquire into the genuineness of the signature. The false-
ness oftthe signature, lack sf proper authorization to someone
else to make the signature, and all other matters considered
in this opinion wherein the Weatherly holding is applicable,
would have to be established in a judicial proceeding before
the County Judge would be authorized to disregard a signature.
Your second question is: Can the names be counted
when the applicant notarizes the signatiuresof the signers?
It is stated in 31 Tex.Jur., Notaries,B 3, p. 346,
that, generally speaking, one who is a party to or substantially
interested in a transaction cannot act as notary with reference
thereto. He do notethink the candidate is a party to the appli-
cation in the sense tnere used; only the signer is the party
thereto, although the candidate must signiUy his written con-
sent to the candidacy. Clearly a notary could not administer
his mown oath as a signer of the application, but the fact
that he was a signer would not prevent his administering the
oath to other signers.
With regard to whether interest in the subject
matter disqualifies a notary, there appears to be a distinction
between the taking of acknowledgments and depositions and the
administration of oaths. While a notary may be disqualified
from administering an oath because of his interest in or con-
nection with the subject matter in certain instances (e.g.,
an attornel in a criminal case may not take the affidavit of
his client5 , we are not aware o- f any general rule in this State
disqualifying a person from administering an oath because he
has an interest in tinema++
,,er or of any specific rule dis-
\ qualifying a candidate from acting as a notary in administering
the oath to signers of his applic&tion. Tne rule is to the
contrary in some jurisdictions, but the rule in Texas seems
to be that interest does not disqualify a notary from adminis-
tering an oath, the act being minis:erial in nature. .Thisis
especially true where the form and confents of the oath are
prescribed by statute, as in this instance. See 2 Tex.Jur.,
Affidavits, 8s 9, 11; Note, 74 A.L.R. 774; Komisky v. Raymond,
51 S.W. 51 (Tex.Civ.App. 1899, error dism.); Walden v. Locke,
49 S.W.2d 832 (Tex.Civ.App. 1932, error ref.). Most of the
cases involve an oath administered by an attorney to a client,
but in some of the cases it affirmatively appears that the at-
torney's comlsensation was directly affected by the outcome of
the suit. Nany of the cases holding that an attorney is not
disqualified to ta'kethe oath of his client, even though he
has a pecuniary interest in the matter, question the propri.ety
of the practice Lut recognize that it is not illegal.
In Norris v. Dunn, 164 S.W.2d 564 (Tex.Civ.App.
1942, error ref. w.o.m.), it was held that an absentee ballot
.
Honorable Linton S. Savzge, page 7 (W-5C9)
was not invalidated because the affidavit was taken by a
notary,public who was a candidate on the ballot, in the ab-
sence of a showing of undue persuasion, fraud or undue in-
fluence exercised by the candidate. The court referred to
the rule stated in 31 ,Tex.Jur.346 and further said that the
distinction between an acknowledgment and an affidavit was
not material to the question before it. The court's ruling
was based on the pri~iple t&t where there is no showing of
fraud, a mere irregularity -wiil not prevent the counting of
-0sire of the voters can be as-
votes where the will and U-
certained from the ballots and where there is no law pro-
hibiting the ccunting of such ballots.
We are cf the opinion that a candidate is not
disqualified to act as a notary in administering the oath to
signers of his application because of his interest therein,
and that the signatures are nc.t~
invalid on this ground alone.
Tnis conclusion eliminates-the necessity of considering whether
the identity of names of the notary and the candidate would
presumptively establish their identity in person or whether
the County Judge could inquire into the identity.
A signature which is obtained by fraud or undue
influence is invalid, whether the i’ra-xd or undue influence
was exerted by the notary or b ";$"g
lg40y, ;;g -;y;;~"&"g;
16 A.2d 206 (N.Hamp. Sup.
the officer with whom the application is filed has no authority
to investigate and determine the existence of fraud or undue
influence (Weatherly v. Faigham, supraj; it is our opinion
that the County Judge may not inquire into the existence of
these elements.
.\
Your third question is: Can the names be counted
if the notary ackccwledges the signatures of husband, wife, or
relative?
'Anotary is not disqualified from administering
an oath bedause of his kinship to the perscn making the oath.
Notary Public 8 23; Kirkland v. Ferris, 145 Ga.
zz %iJ?h: 680 (1916). Therefore, this question is answered
in'the affirmative . We might add that, even if the rule were
different, the County ;udge would not hav~eauthority to elimi-
nate names on this ground if establishment of kinship depended
on proof outside the records he is authorized to examine.
Weatherly v. Fuigham, supra.
Your fourth question is: Can signatures obtained
on 2 petition prior to the date of resignation of the County
Attorney be counted?
.
Honorable Linton S. Savage, p2ge a (wbr-,509)
In view of the pilrpsseof requiring a minimum
number of signatures on an application of an independent
candidate, we are of the opinion that the fact that the ap-
plication was signed in anticipation cf the vacancy but
before it actually occurred would not be material and that
the signatures may be counted. The fact that the voters
signed the application befcre the vacancy occurred does not.
affect their willingness to endorse the candidacy of the
person in whose behalf the s.pplicationis made.,
_ Your fifth question is: Must the County Judge
'certify the applicants' names tiJappear on the general elec-
tion ballot in the col>umnmarked independent if the five dol-
lar fee required under Art. fi..iC,
of the Election Code did not
accompany the petition?
Article 4.10 f the Election Code prescribes a
filing fee for candidates iln special elections only. The
statutes relating to spec-a
3 1 elections are not applicable to
an election to fiil a vacancy in the office of County Attorney,
which is filled at the generai election. Att'y Gen. Ops. o-2965,
O-5093, 0-6300, ``-367. No fee is required of independent candi-
dates in the general election for state, district, county and
precinct offices held under Article 2.01 of the Election Code.
Accordingly, failure to accompany the application with a filing
fee is not a ground for refusing to certify the candidate,
since no fee is required.
You stated in your opinion reqJ';est
that one of the
applications was not signed by five per cent of the entire vote
cast in tne county at the last general election. You have not
asked whether this 2pFlicstion shouid be considered, but in
order to leave no doubt on the matter we will state that the
County Judge is authorized (2nd indeed, it is his duty) to as-
certain that the application contains the requisite number of
signatures, and he is not authcrized to certify a candidate
if the application does net contain this minimum number.
SUMMARY
The officer with whom the application of an
independent ca.r.didate
is filed has no authority
to investigate and determine the existence of
facts which depend upon proof outside the appli-
cation and official records. Therefore, the
County Judge may not refuse to count signatures
appearing on the application of an independent
candidate for the office of County Attorney on
the ground that they are not genuine or were not
made upon proper authorization of the voter.
. .
Honorable Link? S. Savage, page 9 (WIti-509)
A notary public is not disqualified to
administer an oit& because he ks ac interest
in the subject matter to which the oath per-
tains, and sigpatwes notarized by the candi-
date are not invalid per se. Signatures ob-
tained by fraud or ur``~fl``ence are invalid,
but the County Jitdgekas no authority to in-
quire into the existence of these elements.
A notary public is not disquaiified to
adrriinister
oat% tc persons who are related
to him.
Signatures on the applica-tionof a candi-
date for an unexpired term are not invalid be-
cause they were obtained in anticipation of a
vacancy but before%he vacancy actually occurred.
No filing fee is required of independent
candidates in the general election fcr state,
district, county acd precinct offices.
Yours very truly,
WILL WILSON
Attorney General of Texas
Assistant
APPROVED:
OPINION COMMITTEE
Morgan Nesbitt, Chairman
Gordon C, Cass
Marvin R. Thomas, Jr.
REVIZWED FOR THE ATTORNEY
GENXRAL BY:
W.V. Geppert