Untitled Texas Attorney General Opinion ( 1968 )

March 26, 1968
Honorable Roy R. Barrera Opinion No. ~-215
Secretary of State
Capitol Station Re: Whether the name "American
Austin, Texas 78711 Party" Is available under
the provisions of Article
13.57 of the Texas Election
Dear Mr. Barrera: Code and relating questions.
Your request for an opinion reads as follows:
"The American Party on October 27, 1967 certl-
fled to this office that its nominations for the
1968 voting year would be made by conventions and
not by primary elections. Secretary of State John
L. Hill by letter dated February 1, 1968 advised
that the name 'American Party' was available for
use by the new political party. (Art. 13.57.) On
February 15, 1968 the American Party advised the
Secretary of State that it would not have nominees
for statewide offices but Intended to certify can-
didates for President and Vice President of the
United States and for presidential electors.
"This office has received inquiries from county
clerks and county assessor-collectors relative to
their authority or duty to file certain notices and
supply voter registration lists to the American Party.
Your opinion Is respectfully requested on these spe-
cific questions9
"(1) Is the name 'American Party' available
under the provision of Art. 13.57 of the Election
Code?
"(2) Should the county clerks accept for filing
the notices required of the American Party by the
Election Code? (Art. 13.34.)
"(3) Is the registrar of voters required to
furnish the American Party a list of registered
voters for not more than $5 per set? (Art. 5.19a,
Election Code.)
(1a . . II
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Hon. Roy R. Barrera, page 2, ~-215
Article 13.57 of the Texas Election Code ~providesr
"Wo,new political party shall assume the name
of any pre-existing party; and the party name print-
ed on the official ballot shall not consist of more
than three (3) words."
In~Morrls v. Mims, 224 S.W. 587, (Tex.Clv.App. 1920),
the Court stated:
,I
o The Legislature
m . may make reasonable reg-
ulations as to how nominations may be made, but it
cannot prohibit such nominations, whether by a new
party or an old one (Qilmore v. Waples, 108 Tex. 167,
188 S.W. 1039); and it cannot nullify the effect of
such nominations, when legally made, by prohibiting
the printing of the names of such nominees upon the
official ballot, the same being the only ballot that
can be legally voted."
In construing the provisions of Article 3174, Revised
Civil Statutes of Texas, 1911 (now Article 13.57 of the Elec-
tion Code, supra), the Court said:
"The statute prescribes no method by which a
new party may make nominations. Such being the
case, a new party has the right to pursue any rea-
sonable method in making its nominations, not pro-
hibited by law. As the American party pursued one
of the methods prescribed by statute for making
nominations by pre-existing parties, we hold that
such method was reasonable, and, as there is no
law forbidding it to pursue such method, we hold
that its nominations of the candidates named in the
petition herein were legally made. The same having
,been properly certified to the secretary of state,
it is his duty to certify the names of such candl-
dates to the proper election officers, whose duty
it will be to print or cause to be printed the
names of such candidates on the official ballots
as the nominees of the American party."
You state in your letter that on February 1, 1968,
the Secretary of State advised that the name "American Party"
was available fo,r use by the new political party. Further-
more, you have certified as followsn
'I, ROY R. BARRERA, Secretary of State of the
State of Texas DO HEREBY CERTIFY that according to
the records of Secretary of State the returns of
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Ron. Roy R. Barrera, page 3, M-215
the General Election held on November 2, 1920
show that the American Party was on the Texas
election ballot and the vote cast for the
electors of this party for President and Vice-
President.
“I further certify that the American
Party has not been certified on the General
Election ballot since November 2, 1920.”
It IS our opinion, therefore, that the phrase “pre-existing
party” refers to a party existing at the time a new political
party is formed. Therefore, you are advised in answer to
your first question, under the factual situation submitted,
that the name ‘American Party” Is available under the pro-
visions of Article 13.57 of the Election Code.
You state in your request that on February 15, 1968,
the American Party advised the Secretary of State that it
would not have nominees for statewide offices but intended to
certify candidates for President and Vice President of the
United States and for presidential electors. In Seay v. Latham,
143 Tex. 1, 182 S.w.2d 251, (1944), it was held that in the
absence,of a statute directing how a political party should
elect its nominees for presidential electors, the party is free
to follow any method which it may choose in keeping with party
customs not expressly prohibited by statutes; and the Secre-
tary of State is required to certify to the election officials
the names of the party nominee a to be placed on the official
ballot.
In view of the foregoing, you are advised in answer
to your second question that the county clerk must accept for
filin the notices required of the American Party by Article
13.34 7 e) of the Texas Election Code wherever precinct con-
ventions are being held by the political party An his county.
Subdivision 3 of Article 5.19a of the Texas Election
Code provides as follows:
“No charge shall be made for lists furnished
for use in elections held at the expense of the
county or any city or other political subdivision.
For each set of original and supplemental lists
which the registrar is required to furnish to the
executive committee of a political party for use
in Its primary elections, the registrar shall be
permitted to charge not more than Five Dollars ($5),
to be paid by the party or the chairman so ordering
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Hon. Roy R. Barrera, page 4, m-215
the lists, which charge shall be in full for
both the original lists and the supplemental
lists. The registrar shall also furnish to
the county executive committee of each pollt-
ical party, for any year in which such party
is holding precinct conventions, one set of
the original and supplemental lists for use
in qualifying persons to participate in such
conventions, for which the registrar shall be
permitted to charge not more than Five Dollars
($5).”
In answer to the third question, you are, therefore,
advised that the registrar of voters is required to furnish
the American Party a list of registered voters for not more
than Five Dollars ($5) per set if the political party is
holding precinct conventions.
SUMMARY
The name "American Party" is available under
the provisions of Article 13.57 of the Texas Elec-
tion Code. The county clerk must accept for filing
the notices required of the American Party by Arti-
cle 13.34(e) of the Texas Election Code wherever
precinct conventions are being held by the political
party in his county. The registrarof voters is re-
quired under Article 5.19a of the Texas Election
Code to furnish the American Party lists of regis-
tered voters for not more than Five Dollars ($5)
per set if the political party is holding precinct
conventions.
truly yours,
iz*L=-
C. MARTIN
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
John Grace
Harold Kennedy
James McCoy
A. J. CARUBBI, JR.
Executive Assistant
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