Untitled Texas Attorney General Opinion ( 1956 )

HonorableHarvey C. Hooscr,Jr. opinionNO. s-215
County Attamey of Howard Comty
Big Spring,Texas Re: Party candidatesfor the
office of districtclerk
in the generalelectionsub-
sequentto the occurrenceof
Dear Mr. Hooser: a vacancy therein.
Your requestfor an opinionreads in pert as follows:
%e DistrictClerk of Howard &unty pmsed away
Se@tember9, lp%,'leaving a .vacancyafter the Demo-
craticPrimariesand after the County Conventions. The
office of DistrictClerk was not up for electionthis
par. The Metriqt Judge properlyappdnted a District
Clerk until the next generalelectlon.
%uestscm No. 1: Under the circumstances,can the
DemocraticExecutiveColmnitteename and certifya Demo-
craticnominee~forthe office of DistrictClerk and have
thenam? ofsuchnominee plncedupontbe officialballot
for the GeneralEleotionto be held on Novembes 6, 19567
"QuestionNo. 2: If the neuw of a Democraticnominee
cannotbe printedon the officlalbellot,and regardless
of whether or not one or more properlyhave their name
,xrinted on the officialballotas an in&pex&ntcandidat.e,
should the offlce of DistrictClerk,without the nam of a
iuminee,ba printedon the officialballot under each polit-
icalparty?"
Districtclerksreceloeda four-yearterm at the &mmralelec-
tion in 199 (Tex. Const. Art. XVI, Sec. 651, and consequentlyan elec-
tlca for the regular term is not being held this year. A vacancy In the
office of districtclerk is filled by appointmnt of t&e districtjti~e
until ths next generalelection,at which tims an electicmis held to fill
the remainderof the unexpiredterm. Art. 1895,Vernon's Civil Statutes.
The authorityof perty executivecomlttees to make nominationsis
containe&in Artdoles6.04,8.22,and 13.56of Vernon'sTexas ElectionCode.
Article 8.22,authorlzlngthe proper executivecommitteeto choosea nominee
where a deceasedcandidatein the first primaryreceivesa mjorlty of tha
here. Article 13.56reads:
votea, obviouslyhas no applicatioPl
Honorable Harvey C. Hooser, Jr., Page 2 (S-215)
“A nominee may decline and annul his nomination
by delivering to the officer with whom the certificate
of his nomination is filed, ten (10) days before the
election, if it be for a city office, and twenty (20) days.
in other cases, a declaration in writing, signed by
him before some officer authorized to take acknowledg-
ments . Upon such declination (or in case of death of
a nomine,e), the executive committee of a party, or a
majority of them for the State, dtetrict or county, as
the office to be nominated may require, may nominate
a candidate to supply the vacancy by filing with the
Secretary of State in the case of State or district offi-
cer, or with the county judge, in the case of county or
prerinct officer, a certificate duly signed and acknowledged
by them, setting forth the cause of the vacancy, the name
of the new nominee, the office for which he was nominated
and when and how he was nominated. NO executive com-
mittee shall ever have power of nomination, except where
provided for by law.”
Tbis article authorizes the county executive committee to name
a substitute nominee for a county or pr~ecinct office where there is a
vacancy in the nomination,~as distinguished from a vacancy in office.
It does not authorize the exe,cutive committee to name an original nomi-
nee, either for a full term or fork an unexpired term, even though a
vacancy fin .the office occurs ,too late for an original nomination to the
unexpired term to be made fn the primary elections. Gilmore v. Waples,
108 Tex,, 167, 18,8 S.W. 1037 (1916). ff a vacancy in office occurs in
suffictent time for parsons to become candidates in the primary election,
a party nomination for an unexpired term which is to be filled at the
next general election may. be made at the primary. Cf. Kilday v. Germany,
139 Tex. ~380, 163 S.W.2d 184 (1942). If the vacancy occurs too late for
nomination in the primary, the party may supply a nominee by some other
method agreeable to party usage and not prohibited by law. Brewster v.
232 S.W.Zd 678 (Tex. Civ. App. 1950); cf. WillLams v. Huntress,
m .2d 87 (Tex. Civ. AUP. 1954). In the event the nominee died or
declined the nomination, Article 13156 would authorize the executive
committee to name a substitute nominee, but it does not authorize an
original nomination in any circumstances.
Article 13.56 provides that -ao executive committee shall ever
have power of nomination, except where provided for by law.” The only
other provision authorizing an executive committee to make a nomination
for the general election is found in the last paragraph of Article 6.04 of the
Election Code, which provides:
‘!If a state or .dfstrfct official who is serving a four (4)
or a six (6) year term should die or resign on the even
numbered year In which he is not a candidate, after the
Honorable Harvey C. Hooser, Jr., Page 3 (S-215)
filing date of the first primary election and before the
printing of the ballot for the general election, the state
committee for each political party in the case of state
officers and the appropriate district committee for each
political party in the case of dtstrict officers shall have
the power to name a nominee for such posttlon and.to certify
the name to the proper election board to have the name
printed on the general election ballot. . . . ”
This provision, which was added to the law in 1951, authorizes
the state or district committee to make an original nomination for an
unexpired term in a state or district office, but it does not confer any
power of nomination on a county executive committee, or on any com-
mitee to make a nomination for a county office. Ne think it is quite
clear that the offlce of district clerk Is classified as a county off&e, both
under the laws relating to elections and under the laws generally. Tex.
Const., Art. V. Set: 24; Duclos v. Harrts County, 291 S.W. 611 (Tex.Civ.
App. 1927); Opinions of the Attorney General, Vol. 371, p.‘805 (1936);
Att’y Gen. Op. V-329 (1947).
It is suggested that the phrase ‘state or district official” in
Article 6.04 should.be extended to tnclude county and precinct officials,
whose terms have now been increased to four years by the constitutional
amendment adopted in 1954. It might be argued that there appears to be
no reason for making a distinction between state and district offices on
~the one hand and county and precinct offices on the other hand, and that the
legLs.latlve intent in enacting the amendment to Article 6.04 was to provide
for nomtnations in all offices having terms of four or six years. In 1951
.the office of county superintendent of public instruction carried a term of
four years, and yet we think it is evident that at the time this provislon
was enacted it plainly excluded any construction which would have per-
mttted a county executive committee to name an original nominee for a
vacancy in that office. Is there any more basis for now extending the pro-
vision to cover nominations for unexpired terms in other county offices be-
cause of the subsequent increase in the length of their terms, on the theory
that the legislative intent was to provide for filling nominations in all
offtces carrying four-year terms 7
We do not find any ambiguity or uncertainty in the language of
Article 6.04 which would,admtt of a con.struction to include county offices.
It is only where the wording of a statute gives rise to ambiguity, or the
gramxnatical construction is doubtful, that courts can exercise power of
controlltng the language to give effect to what they suppose to have been the
real intention of the legislature. Where the language used in a statute is
plain and unambiguous, subtle or forced constructions are not admissible
’ to limit or extend the meaning of the language employed, so that where
the words used have acquired a definite meaning in law they must be expounded
accordingly and the courts cannot speculate upon the intention of the legis-
lature. Fire Ass’n of Philadelphia v. Love, 101 Tex. 376, 108 S.W. 158 (1908);
Honorable Harvey C. Hooser, Jr., Page 4 (S-215)
Board of Insurance Com’rs v. Guardian Life Ins. Co., 142 Tex. 630,
ISU S W td 906 (1 44). Sparks v. State, 76 1 ex. Grim. 263 174 S W. 351
(1915). It is not tze d&y of the courts to supply omission; in theOlaw
and a court cannot write into a statute something obvtously not contained
therein under guise of statutory construction. Gilmore v. Waples, supra;
Estes v. Terrell, 99 Tex. 622, 92 S.W. 407 (1903); Evans v. Terrell, 101
Tex. 167, 105 S.W. 490 (1907); City of Fort Worth v. Westchester House,
274 S.W.Zd 732 (Tex,Civ.App. 1934, error ref. n.r.e.).
In the absence of specific amendment, a statute must be given the
meaning which it had when enacted. Manry v. Robison, 122 Tex. 213, 56
S.W.2d 438 (1932). A statement of the r&s applicable to the extension
of the meaning of a statute to include new situations which lava arisen
since iti enactment is found in 50 Am. Jur., Statutes, 8 237:
-8 237. -- Application to New Cases, Conditions, and
Subjects. --Since the words of a statute must be taken in
tha sense in which they were understood at the time when
the statute was enacted, and the statute must be construed
as it was intended to be understood when it was passed,
statutes are to be read in the light of attendant conditions
at the time of their enactment. A new meaning may not be
given~the words of an old statute in consequence of changed
conditions. The fact that events probably not foreseen by
the legislature have occurred does not permit the court to
undertake to enact new law. Indeed, new things may arise,
which are not regarded within the meaning of a statute,
although they are within the terms thereof. It does not
follow, when a newly invented or discovered thing is called
by some familiar word, which comes nearest expressingthe
new idea. that the thing so styled is really the thing formerly
meant by the familiar word. -Of course, if the terms of the _
statute are not broad enough tsclude the new thing, if is not
wlthln the statute.
*On the other hand, the fact that a situation is new,
or that a particular thing was not in existence, or was not
invented, at the time of the enactment, does not preclude
the application of the law thereto. The language of a statute
may bs so broad, and its object so general, as to reach con-
ditions, not coming into existence until a long time after its
enactment. . . . * (Emphasle added.)
If Article 6.04 had provided, for example, that the appropriate
executive committee should have the power of nomination where a vacancy
was created by the death or resignation of any official serving a term of
four or six years, the fact that a county office did not carry a term of that
length at the time of enactment would not prevent its inclusion upon sub-
sewnt change in the term. But where the language of the statute is not
Honorable Harvey C. Hooser, Jr., Page 5 (S-215)
broad enough to include the office, the meaning of the statute cannot be
extended to include the changed conditions. In those circumstances,
correction must be through legislative action. In 50 Am. Jur., Statutes,
g 307, It 1s said:
”
. . . The general rule that a statute is to be construed
wlth reference to its manifest object does not apply where
such object is defeated by the language of the statute. In
this respect, lthas been declared that the purposes of a
statute must be supposed by the courts to be satisfied and
expressed by its words, and that where the meaning of the
law is evident, arguments based upon unexpressed pur-
poses of the legislation, or the mischiefs intended to be
remedied, to justify searching for new terms and inter-
polating them into the statute, are futile. Where a law ts
plain and unambiguous, responsibility for its failure to ful-
fil an expected object ought to be left to its leglslattve
creators.”
In the light of the foregoing authorities, your first question ts
answered in the negative.
Our understanding of your second question 1s that it relates
merely to the form of the ballot at the general election to be held on
November 6, 1956. We assume that the county election board has deter-
mined that the vacancy occurred in sufficient time for an election on that
date to be valid and has concluded that the office should be listed on the
ballot. It is settled that a person may be elected by write-in votes in the
general election, and the fact that no name of a candidate for the office
was printed on the ballot would not prevent election by means of wrlte-
in votes where the office was properly subject to being filled at that
election. Your question 1s whether the office should be listed under the
party columns, as well as under the write-in column, where a party
nomination has not been made.
Article 6.05 of the Election Code provides in part:
Y
. . . The tickets of each political party shall be printed
on one ballot, arranged side by slde in columns separated
by a parallel rule. The space which shall contain the title
of the office and the name of the candidate shall be of uni-
form style and type on said tickets. At the head of each
ttcket shall be printed the name of the party. . . .
“Where a party has not nominated a ful,l ticket, the title
and name of those nominated shall be opposite the same
office of the full ticket. In the write-in column the titles
of the officers shall be printed in all blank spaces to corre-
spond to a full ticket. . . . *
Honorable Harvey C. Hooser, Jr., Page 6 (S-215)
Prior to 1951, the last-quoted paragraph read (Article 2980,
V.C.S.):
YWhen a party has not nominated a full ticket, the titles
of those nominated shall be in position opposite the same
office in a full ticket, and the titles of the offices shall be
printed in the corresponding positions in spaces where no
nominations have been made. In the blank columns and
independent columns, the titles of the offices shall be
printed in all blank spaces to correspond with a full ticket.’
Formerly the title of the office was required to be printed in the
party column where no nomination had been made, but it is now provided
that the title and name of the nominee shall be opposite the same office
of the full ticket, with no provision for listing the title in the party
column where a nomination has not be,en made. We interpret the present
wording to mean that the title of the office is not required to be printed
:under a party columnwhere a party nomination has not been made; but
.the write-tn column should list the titles of all offices to be voted on.
The-purpose of the change probably was to simplify the ballot form and
to facilitate the marking and counting of the ballots by eliminating un-
necessary listing of titles where nominations had not been made. A
voter.stUl has the privilege of voting for the candidate of his choice by
writing the name of the candidate under the office in the write-in column.
It has always been the design of the law that the names of all write-in
candidates be written in the write-in column, regardless of whether they
were members of a party having a column on the ballot. Art. 2981, V.C S.;
Art. 6.06, Elertlon Code. Under the former law it was held that ballots
having the name written ln under a party column should be counted for the
candidate where the intent of the voter was clear, and lt is our opinion that
the vote should also be counted if the voter wrote in both the tltle of the
office and the name of the candidate under the party column, where his
intent was clear. Moore v. Plott, 206 S.W. 958 (Tex.Civ.App. 1918). But
in making up the ballot form the election board should now llst in the
party cohunns only those offices for which a party nomination has been
made. However, it is our opinion that this provision is directory and that
the listing of an office under the party column where a nomination had not
been made would not affect the validity of the election, and, further, that
a write-in vote under the party column should be.counted where the intent
of the voter is clear.
As already observed, the title of the office should be printed under
the write-in column on the ballot. Candidates may also run as independent
or nonpartisan candidates. If anyone has complied with the requirements
for becoming an independent candidate, the title of the office and the name
of the independent candidate (or candidates) should be printed under the
independent column; otherwise, the title of the office should n,ot be printed
under that column.
SUMMARY
The county executive committee of a political party is
Honorable Harvey C. Hooser, Jr., Page 7 (S-215)
not authorized to name an original nominee for the unexpired
term of a county office, even though the vacancy occurred
too late for a nomination to be made in the primary election.
The title of an office to be voted on at the general elec-
tion should not be printed under the party column where no
party nomination for the off&e has been made, but should be
printed under the wrlte-in column.
APPROVED: Yours very truly,
Jd,“,LFe;isI Jr. JOHN BEN SHEPPERD
Attorney General
W. V. Geppert
Reviewer
Will D. Davis
Special Reviewer
By
MlE$LF4dLc
.Assistant
Davis Grant
First Assistant
John Ben Shepperd
Attorney General