Untitled Texas Attorney General Opinion ( 1960 )

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TEE ORNEY GENERAL
OF EXAS
AILTSTIN 1% TEXAS
W’ILI. WILSON
AITORNEY GENERAI. December 19, 1960
Mr. P. D. Thornton, Jr. Opinion No. WW-974
County Attorney
Mt. Pleasant, Texas Re: Whether acceptance of certain
political advertising by news-
paper publishers violates Art.
211 of the Penal Code or Art.
14.10 of the Election Code.
Dear Mr. Thornton:
You have asked our opinion in regard to the following material
published in one of your local papers:
“It’s Clean-up and Clean-out Time
It’s been a long, hard winter. As any fool can
plainly see it’s time to clean up and clean out.
The plain folks of Titus County have also had a
long winter. For several years, the little clique who
have been running things political in Titus County
have been warm and coey. They have treated the
people with contempt. They have hiked their salary-
ies and squandered the taxpayers money, and dared
you to do anything about it.
If you have had enough of the highhanded tactics
of the crowd who are in, then do something now.
Don’t wait until the electiortis over. The time to do
something about it is now, and the way to do some-
thing about it is to get your friends and neighbors
and go to the polls Saturday, May 7th and vote for
a change.
Itls,Clean up and Clean out time at the Court-
house.
This Ad Pd. for as a public service by Tax Payer~s Not
‘Tax-eaters. ’ ‘I
Mr. P. D. Thornton, Jr., page 2 (WW-974)
Specifically you ask:
“(1) Is the acceptance by a publisher of an ad
such as one enclosed a violation of both Art. 211 of
the Penal Code and Art. 14.10 of the Election Code
when the ad submitted is not signed by the person
submitting the ad or the person paying for same.
(2) Considering the requirement of Art. 211
and the penalty clause in said Art. 211, is the failure
to publish a signature on such an ad a violation of the
law, punishable as a misdemeanor, or is the require-
ment that a signature be printed in that ad a nullity
by reason of a failure to specifically include such
requirement of a signature in the penalty provision
in said Article.
(3) Is the provision “This Ad Pd. for as a public
service by Tax Payers Not ‘Tax-eaters. “I sufficient
to designate the ad enclosed as political advertising. ”
Initially and in response to your third question we point out
that Art. 211 of the Penal Code requires that political advertising be
labeled at the beginning or at the end “advertisement” and provides
a penalty of from $500 to $1000 or a jail sentence of from 10 to 30
days for failure to so label. Art. 14.10. Texas Election Code, re-
quires that such advertising be labeled as political advertising and
provides a penalty of not more than $100. This, we believe to be a
conflict such as to render the labeling provisions of both Articles
nullities. Ex Parte Sanford, 289 S.W.2d 776.
You have pointed out that the penalty clause of Art. 211 fails
to include the signature requirement contained in the preceding pro-
visions of said articles. Article 7, Penal Code, provides in part:
‘1. . . no person shall be punished for an offense which is not made
penal by the plain import of the words of a law. ‘1 Consequently, we
conclude in answer to your second question that a prosecution for
publication of an unsigned political advertisement cannot be main-
tained under Art. 211, Penal Code.
We turn now to the question of whether or not the accep-
tance by a publisher of the above material, not signed by the person
paying for same is a violation of Art. 14.10 of the Election Code.
I .
Mr. P. D. Thornton, page 3 (WW-974)
The printed matter to which this article is applicable must be “in
favor of or in opposition to any candidate.” We think that the import
of the material is such as to identify it as being in opposition to any
county official running for reelection and, as such, it is within the
purview of the Article. The publisher having accepted it for publica-
tion without its being signed by the person paying for same, such ac-
tion constitutes a violation of Art. 14.10.
(In your opinion request you allude to similar advertisements
published in connection with bond issues. We, of course, cannot pass
upon the legality of material which we have not seen. It should be
pointed out that Art. 14.10 refers to printed matter for or against a
“candidate. ‘I This would not include printed urgings to vote for or
against propositions. )
SUMMARY
The acceptance by the publisher of the parti-
cular political advertisement submitted with the
opinion request is a violation of Art. 14.10 of the
Election Code.
Very truly‘ yours,
WILL WILSON
Attorney General of Texas
RVL:lmc By*al
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
C. Dean Davis
Robt. G. Scofield
Elmer McVey
Gordon Cass
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore