Untitled Texas Attorney General Opinion ( 1944 )

Hon. Sidney Latham
Secretary of State
Austin, Texas
Dear Slrt Opinion ~0~.O-6204
Rer Procedure of the
Republican Party to
have.lts candidates
appear on the general
election ballot and
related questions.
We have your letter of reaent date requeatlng the
opinion of this department on the"questlon stated therein.
Said letter Is, In part, as follows:
"Articles 3154-3158,both Inclusive, RCS
1925, govern the aatlvltles of political parties
In Texas which cast as many aa 10,000 and less
than 100,000 votes for Oovernor ln the preaedlng
general election. The Republican Party ln Texas
has generally fallen into this classlflaatlon,
and has continued to funatlon during the year
1944, preparatory to the coming general eleatlon
under the provisions of these articles.
"In accordance with Article 3155 the Republican
Party, on May 22, 1944, duly filed In this office
a certlflaate of Its decision to nominate State,
dlstrlat and county offiaers by convention rather
than by prlmarg election.
"Pursuant to Article 3154 the Republican
Party held a State convention and nominated certain
candidates for State offices, which have been
certified to thls office.
"Pursuant to Article 3156 such Party held
numerous district conventions on the fourk~Tuesday
In August (August 26, 1944) and such dlstrlat
conventions subsequently certified the nomination
of various congressional and legislative candidates
to this offlae. Most of these certificates were
.
Hon. Sidney Latham, page 2
executed by the chairman of the district convention.
It Is to be noted that Article 3157 provides that
such certifications are to be made by the chairman
of the State or district committee. It Is to be,
further noted that the time of the meeting of such
district conventions Is fixed under Article 3156
by the language, 'on the same days as herein pre-
scribed for district conventions of other parties'.
This Is an apparent reference to former Article
3135 which fixed the time of meeting of district
conventions for parties casting in excess of 100,000
votes as the fourth Saturday In August. This article,
however, was repealed in 1933.
"If the group of statutes first above re-
ferred to a¬ applicable to the Republican
Party by reason of their failure to cast as
many 'ad:10,000 votesat the last general elec-
tion, then we Plnd no other applicable statutory
provisions,. The only other enactments we find are
Articles 3100-3153 governing parties In excess of
,100,000 votes;" Articles 3159 to 3162 governing
,nonpartlsan.and,independent candidates; and Artl-
cle 3163 governing parties without State organ-
isatlons. The Republican Party would be excluded
from the,first alassificatlon'bg reason of Its
numberof votes cast; from the second because it
Is neither nonpartisan and~lts candidates are not
independent candidates; Andyfrom the third because
It does have a State organization; nor does the
case of Morris vs. Mlms, 224 S.W. 587, seem to be
ln point since It applies only to new political
parties.
"In the light of the above facts, will you
please advise this Department upon the following
lnqulrlesr
"1i Can the Republican Party legally perform
the functions authorized by, and In accordance
with, the provisions of Articles 3154-3158,both in-
clusive, for the 194kgeneral election when It cast
less than 10,OoO votes forqovernor In the 1942
election?
Hon. Sidney Latham, page 3
'2. If you have answered question number 1
'Yes', then Is a nomlnat~lonmade by a Republican
District Convention valid when such aonventlon met
on the fourth Saturday In August, but which time
was fixed by reference to Article 3135 whlah has
been repealed?
"3. Is a certification by a district aonven-
tlon such as Is authorized by Article 3156 sufficient
If It Is executed by the chairman of the convention
rather than by the chairman of the district committee
as required by Article 31577
"4. If you have answered question number 1
'No', then by what procedure can the Republican Party
have its candidates appear on the general election
ballot?"
Cknerally speaking, It Is stated In our Opinion No.
o-2188:
,I
. . .
'Section 21 of Article N directs the Secretary
of State to 'perform such other duties as may be re-
quired of him by law'. In so far as these duties re-
late to elections, these dutles,are enumerated In the
statutes comprising Title 50 of the Revised Civil
Statutes, and Title 6 of the Penal Code. Article
2925, Revised Civil Statutes, dlreats him to 'pre-
scribe forms of all blanks' for ballots, etc., 'and
furnish same to county judge'. Articles 2926 and
2979 provide that the death of any state or district
officer or nominee shall be certified to the Secretary
of State. Article 2928 prohibits the Secretary of State
from Issuing certificates of election or appointment to
anyone *who Is not eligible to hold such offlce under
the Constitution' . . . Article 2982 requdres the
Secretary of State to hold a drawing to determine the
order in which proposed constitutional amendments shall
appear on the ballot. Article 2997a directs the Secre-
tary of State to examine and approve voting machines.
Articles 3026a and 3033 direct county judges to mall
election returns to the Secretary of State, and Article
3034 provides that he shall open and count the returns
of elections. Article 3155 requires state committees
of polltlaal parties whose nominee for governor polled
between 10,000 and 100,000 votes at the last election
to certify to the Secretary of State whether they will
. . ,
Hon. Sidney Latham, page 4
nominate their candidate by convention or
primary election. Article 3157 requires such
nominations to be certified to the Secretary
of State. By Article 3159, non partisan or
independent aandldates are directred to make
application to the Secretary of State to have
their names placed on the ballot, and Article
3161 directs the Secretary of State to relay
the names to the county clerks. Articles
3168-3173 provide for reports of campaign
expenditures to be made to the Secretary of
State.
"This enumeration of the statutory duties
of the Secretary of State relating to elections
Indicates that all of his said duties,are mln-
lsterlal in character. Nowhere do we find any
discretionary power lodged in the Secretary of
State to authorize him to refuse a place on the
ballot to the duly designated nominees of any
political party."
As stated In the case of Morris v. Mlms, 224 S.W.
587:
"Our election laws provide for the nomination
of candidates by political parties whose candidate
for governor received as many as 100,000 votes at
the last preceding general election, and also for
the nomination of candidates by political parties
whose candidate for governor received, at the last
preceding general election, more than 10,000 and
less than 100,000 votes. The first must be by
primary election held in the manner prescribed.The
second may be by primary election, or by nominating
convention, at the option of such party. AS such
party elects to make,its nomination by party con-
ventions, It is required to notify the Secretary
of State of such fact, and thereafter to hold its
aonvention~at the time and in the manner prescribed
by statute."
There are no other provisions of our
statut;s'rilatlng 'as to how nominations shall be
made by a party oonvention, except Article 3163,
which provides,that persons participating In such
party primary convention shall have paid their
PO11 tax, and shall not have participated in the
conventionor primary of any other party held on
the same day."
Hon. Sidney Latham, page 5
Articles 31.54-3158,Vernon's Annotated Civil Statutes,
pertain to political parties, whose nominee for governor in the
preceding general election received as many as 10,000, and less
than 100,000 votes. The Republican Nominee for Governor re-
ceived less than 10,000 votes In the 1942 tieneralElection. AP-
parentlg, the Republican Party has followed Articles 3154-3158,
supra, in making nominations this year, although the nominee
for governor of said party received less than 10,000 votes in
the 1942 Qeneral Election. This being true, It Is our opinion
that the same principles of law announced In the case of Morris
vs. Mims. supra, is appllaable to the present situation of the
Republican Party and that such Party can legally perform the
functions authorlaed by, and in accordance with, the provisions
of Articles 3154-3158, supra. (See the case of Sterling vs.
Ferguson, 53 S.W.28 753).
The statutes prescribe no method by which a party
may make nominations, whose nominee for governor in the last
preceding general election received less than 10,000 votes.
Such being the case, It Is our opinion, that such party has
the right to pursue any reasonable method In making its noml-
nations, not prohibited by law. Therefore, your second and
third questions are answered In the affirmative. As we have
answered your third question In the affirmative, It becomes
unnecessary to discuss your fourth question.
Yours very truly,
ATTORNEY OENERAL OF TEXAS
By: /s/ Ardell Williams
Assistant
AWirt
APPROVEB SEP. 25, 1944
/s/ GROVER SELLERS
ATTORNEY OENERAL OF TEXAS APPROVED
Onlnlon Committee
6: /s/ %B
chairman