Untitled Texas Attorney General Opinion ( 1964 )

EATTORNEY ENERA
~FTEXAS
Honorable Alwln E. Pape Opinion No. c-264
County Attorney
Guadalupe County Re: Construction of the pro-
Seguin, Texas vision in Article 13.50,
Texas Election Code,
relating to lneligibillty'
of persons voting in a
primary election to sign
the application of an
Dear Sir: independent candidate.
You have requested an opinion on the meaning of the
following provision in Article 13.50 of the Texas Election Code,
pertaining to the application of an independent candidate for
a place on the general election ballot:
' * * * No person shall sign such application
unless he is a qualified voter, and no person who
has voted at either the general primaryelection
or the runoff primary election of any party shall
sign an application in favor of anyone for an office
for which a nomination was made at either such
primary election."
The fact situation on which your questions are based
is stated as follows:
Both the Democratic Party and the Republican
Party held primary elections in Guadalupe County
on May 2, 1964, at which certain nominations for
county and precinct offices were made by the vote
of the people participating in the elections.
However, three local officers, namely, the tax
assessor-collector, the sheriff, and the constable
of one justice precinct are running for re-election
as independent candidates. A candidate for tax
assessor-collector was nominated in the Democratic
primary without opposition on that party ballot,
but no one was a candidate in that primary for the
office of sheriff or the office of constable of
this particular justice precinct. There was no
candidate for either of these three offices in
the Republican primary. The incumbent tax assessor-
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Hon. Alwin E. Pape, page 2 (c-264)
collector, sheriff, and constable each timely
filed his declaration of intention to run as
an independent candidate, as required by Ar-
tlcle 13.47a of the Election Code. It will
now be necessary for them to get petitions
signed by qualified voters, to be filed not
later than 30 days after the second primary
election, as required by Articles 13.50-13.52
of the Election Code.
You have stated that the above-quoted language in
Article 13.50 could be construed to mean that a participant
in the Republican primary, where no one was nominated for tax
assessor-collector, could not sign the application of the
independent candidate for assessor-collector because a candi-
date for this office was nominated in the Democratic primary.
Your questions are as follows:
1. The Republican Party did not nominate a
candidate for county tax assessor-collector of
Guadalupe County, but a candidate was nominated
for that office in the Democratic primary. May
persons who voted in the Republican primary elec-
tion legally sign the application of an independent
candidate for the office of tax assessor-collector
of Guadalupe County?
2. Candidates for sheriff and for constable,
now offering to run as independents, whose names
did not appear on any primary ballot, have no
opposition. May persons who participated in either
the Democratic primary or the Republican primary
legally sign the applications of these two candi-
dates?
Prior to 1963, Article 13.50 of the Election Code
made the following provision with respect to eligibility of a
voter to sign the application of an independent candidate:
' * * * No person who has voted at a primary
election shall sign an application in favor of any
one for an office for which a nomination was made
at such primary election."
Article 13.51 required each signer to subscribe to an oath that
he had participated in no primary election which had nominated
a candidate for the office for which the independent candidate
was running. Under these provisions, the Supreme Court of Texas
held in Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954),
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Hon. Alwin E. Pape, page 3 (C-264 1
that a person who had not voted in the first primary but had
voted in the runoff primary election of a party which had
made a nomination for a certain office in the first primary
was not ineligible to sign the application of an independent
candidate for that office.
In its report to the 58th Legislature, the Election
Law Study Committee created by S.C.R. No. 30 of the 57th
Legislature recommended that Article 13.50 be amended so as to
make the provision on eligibility of signers read as it now
appears in that statute, and the 58th Legislature in 1963
adopted the recommended amendment. The Committee's explanatory
note describing this change read as follows: "Provide that
a person is ineligible to sign an application if he has voted
In either the first primary or runoff primary of a party that
has made a nomination for that office at either primary."
This change obviously was aimed at.changing the rule of
Weatherly v. Fulgham. In keeping with this amendment, the
wording of the oath was changed to read that the signer had
not participated "in the general primary election or the runoff
primary election of any party which has nominated, at'either
such election," a candidate for the office sought by the
independent candidate.
In the light of this 'background,we think it evident
that Article 13.50 was intended to mean that a person is ineligl-
ble to sign the application of an independent candidate if he
votes at either the first primary or the runoff primary of a
party which has made a nomination for the office at either
primary. Participation in the primary elections of a party
which did not make a nomination for the office does not render
a voter ineligible to sign the application of an independent
candidate. Accordingly, we answer both your questions in the
affirmative.
SUMMARY
Under Article 13.50 of the Texas ElectionTode,
a person is ineligible to sign the application of
an independent candidate if he votes at either the
first primary or the runoff primary of a political
party which makes a nomination at either primary
for the office sought by the independent candidate.
Participation in the primary elections of a party
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Hon. Alwin E. Pape, page 4 (C-264)
which did not make a nomination for the office
does not render a voter ineligibly to sign the
application of an independent candidate.
Yours very truly,
WAGGONER CARR
Attorney General
Assistant
MKW:sj
APPROVED:
OPINION COMMITTEE
iii.
V. Geppert, Chairman
Edward Balding
Grady Chandler
Robert Smith
Robert Richards
APPROVED,FQR THE ATTORNEY GENERAL
BY: Stanton Stone
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