Untitled Texas Attorney General Opinion ( 1944 )

Honorable Sidney Latham
senretaiy of state
Austin, Texas
Dear Sir: Opinion Do. O-6205
Re: Whether the joint action of
the two county committees is
sufficient to constitute a
nomination under Art. 3165,
V..IL.C.S.,
under the facts
stated, and related questions.
Your letter of recent date, requesting the opinion of this
department on the questions stated therein is, in part, 8s follows~
"Honorable Penn J. Jackson of Cleburne, Texas, was
nominated for the office of State Senator of the 12th
Senatorial District at the Democratic Primary held
this year. Judge 0.E. MoPherson was nominated Judge of
the 18th Judicial District at the same time and has
since died.
"The County Executive Committees of Johnson and Somervell
Counties, which comprise the 18th Judicial District, have
undertaken to nominate Penn J. Jackson as the Demooratic nominee
for Judge of the 18th Judicial District.
"Articles 2979 and 3165 presoribe the procedure in the
event of death or declination of a nominee. Article 3165
prescribps that the dealination be delivered 'to the officer
with whom the certificate of his nomination is filed.' Mr.
Jackson has filed his declination in this office.
"Article 3138 provides that certificates of nomination
of State candidates only shall be filed with the Secretary
of State, while particle3127 provides that nominees for
district offices shall.be certified to the county clerks
of the proper distriot.
"The certificats of nomination of Mr. Jackson was executed
by George L. Murphy as Chairman of the Democratic Executive
Committee of Johnson County and L. G. Kirk a8 ,Chairmanof
the Democratic lilxeoutive
Committee of Somervell County, and
those two were ,joinedby numerous members of both County
Hon. Sidney Latham, page 2 O-6206
Kxecutive Committees. Neither county chairmen exeouted
the certificate in his capacity as an ex officio member
of the District Exeoutive Committee, which position each
occupies by virtue of Article 3118, but the certificate
recites in its body that the two county chairmen constitute
the District Committee.
"Article 3165 provides that such nomination shall be
made by the Exeoutive Committee 'for the Sta,te,district
or county as the office to be nominated may requires.
This would seem to indicate that the district committee
should make the nomination. Apparently it has been made
in this instance by the joint action of ho county corn-
mittees.
"In the light of the above facts, will you please
advise this department upon the following inquiries:
"1 I) Is the declination of nomination of the office
of State Senator sufficient when filed in this office
rather than with the county clerks of the counties
comprising the district?
"2 * Is the joint action of two County Committees
sufficient to constitute a nomination under Article
3165 where neither County Chairman exeoutes the oertif-
ioate in his capacity as an e.xofficio member of the
District Comm~.ttee?
Article 3118, Vernon's Anno,tatedCivil Statutes, reads as follow%
'There shall be for each political party required by
this law to hold primary elections for nomination of its
candidates a county executive committee, to be oomposed of
a county chairman, and one member from each e:leo,tion
pre-
cinct of such county3 the committeeman from suoh election
precinct shall be chairman of his election precinct, and
the said county chairman shall be cleated on the general
primary election day; the county chairman by the qualified
voters of the whole county, and the precinct chairman by
the qualified voters of the respective eleation precincts.
Said county and preainct chairman shall assume the duties
of the respective offices on Saturday following the NR-
off primary immediately after the committee has declared
the results of the run-off primary election, Said county
ohairman shall be ex-officio a member of the executive
cmittee for all distriots of tihichhis county is a part,
and the district committee thus formed shall elect its
own chairman. Any vacancy in the office of ohairman,~
county or precinct, or any member of suah oommittee shall
Hon. Sidney Latham, page 3 O-6205
be filled by a majority vote of said executive committee,
The list of election precinct ohairmen and the county
chairmen so elected, shall be certified by the county
convention to the county clerk, along with the other
nominees of said party. If there are no requests filed
for candidates for oounty and precinct chairman, a blank
spaoe shall be left on the tiaket beneath the designation
of such position."
Artiole 3165. Vernon's Annotated Civil Statutes, provides:
"A nominee may decline and annul his nomination by deliv-
ering to the officer with whonrthe certificate of his nom-
ination is filed, ten days before the election, if it be
for a city offioe, and twenty days in other cases0 a dec-
laration in writing, signed by him before some officer au-
thorized to take acknowledgments. Upon such declination
(or in ease of death of the nominee) the executive comni,t-
tee of the party, or a majority of them for the State, district
or oounty, as the officer to be nominated may require, may
nominate a candidate to supply the vacancy by filing with
the Seoretary of State in the case of State or district
officers, or with the county judge in the case of county or
preoinct officers, a oertificate duly signed and aoknorledged
by them, setting forth the cause of the vaoanoy, the name of
the new nominee, the office for which he was nomi~natedand
when and how he was nominated. Xo executive committee shall
ever have power to nominate, except where a nominee has
died or declined the nomination as provided in this krtiole."
It will be noted that under Article 3165, supra, a nominee may
decline his nomination by delivering a dealaration in writing, signed
by him before some offioer authorized to take aoknowledpents, to the
officer with whom the certificate of his nomination is filed, The
declaration must he filed within the time prescribed by said statute,
"In the event any candidate for a distriat office
received in the first primary the necessary vote to
nominate, the State Exeautive Committee will certify the
name of such candidate to the county clerks of the proper
district to be printed upon the official ballot for the
general election as a candidate of the party for said
office." (Art. 3127)
Mr. Jackson received the necessary vote to nominate him for the
offiae of State Senator in the First Primary, As we understand your
inquiry, nominations for State Senator are certified to the county
olerks of the counties oomprising the Senatorial District, and suoh
nominations are not certified to the Secretary of State by the State
Executive Committee. Apparently, Article 3136, is applicable only to
Hon. Sidney Latham, page 4 O-6205
nominations where the vote cast of the entire State for a candidato is
involved. Therefore, it is our opinion that a person nominated for ,the
office of State Senator in order to decline his nomination should file
his declination with the county clerks of the counties comprising his
Senatorial District. It is our further opinion that the declination of
a nomination to the offiae of State Senator is not sufficient when
filed with the Secretary of State, rather than with the county olerks
of the oounties comprising his senatorial district. Therefore, your
first question is respectfully answered in the negative.
With reference to your second question, you are respeatfully
advised that it is the opinion of this department that the nomination
involved in your inquiry must be made by the district exeoutive oonnnit-
tee of the judicial district composed of Johnson and Somervell Counties,
Ihe certificate of nomination provides, in part, as follows:
It . . . At such meeting the majority of the members of
such Executive Coimnitteeof Johnson County voted for the
nominee above named, and a majority of the Democratic
Executive Committee of &nerve11 County voted for the nominee
above named, whereupon the said George L, Murphy and L, G,
!Cirk,Chairman of the Demooratic Executive Commi~tteesof the
two oounties composing said District, together constituting
the District Democratic Exeoutive Committee, voted for the
nomination of the nominee above named; srrdupon such facts
we hereby certify that he was duly nominated as the Democratic
nominee for the office of Distriat Judge of the 16th Judicial
District of Texas,"
The executive committee will consist of the county chairman of
Johnson County and of Somervell fwnty. The nomination. to be effec-
tive, must be made by members of the district executive committee, or a
majority of them. The fact that members of both county executive com-
mittees joined in the action of the distriot conm&ttee composed of ,the
various county chairmen is immaterial. As the certificate mentioned in
your letter recites in its body that the two county chairmen constitute
the district committee, and both of them voted for Nlr,Jackson, it is
our opinion that their action is sufficient to constitute a nomination
under Articled 3165, supra.
Yours very truly
ATTORNEY GENEIUL OF TMAS
AW;rt two By s/Ardell Williams
Ardell Williams
APPROVED SEP. 15, 1944 s/ Grover Sellers, Assistant
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By BWB Chairman