Untitled Texas Attorney General Opinion ( 1966 )

THEATTORNEY GENERAL
OF TEXAS
Honorable John C. Mullen, County Attorney
Honorable F. B. Lloyd, Jr., District Attorney
Jim Wells County
Alice, Texas
Opinion No. C-767
Re: Timeliness and legal suf-
ficiency of submitted peti-
tion of an independent can-
didate for office of Justice
of the Peace, Precinct 1 of
Jim Wells County.
Gentlemen:
your opinion request on the above-captioned subject
reads as follows:
"Prior to July 12, 1966, Justice of the
Peace Precinct I of Jim Wells County contained
two Justices of the Peace, designated as Places
I and II.
"On July 12, 1966, the Jim Wells County
Conmkssioners' Court abolished Places I and II,
declared a vacancy in the Office of Justice of
the Peace, Precinct I, and appointed a Justice
of the Peace to serve the unexpired term. A
new four year term for Justice of the Peace,
Precinct I will commence January 1, 1967.
"A petition nominating the former Justice
of the Peace, Precinct I, Place I, as an inde-
pendent candidate for the Office of the Justice
of the Peace, Precinct I, to be filled at the
General Election on November 8, 1966, was present-
ed to the Jim Wells County Judge on September 9,
-3685..
Hon. John C. Mullen, HLn. F. B. Lloyd, Jr.. page 2 (C-767)
1966 by someone other than the candidate in
person. The petition contains a sufficient
number of signatures, If valid, to constitute
more than 5% of the votes cast for Governor in
the last General Election in Justice of the
Peace Precinct I.
"We enclose a photocopy of one page of the
petition nominating Mrs. Villanueva as an inde-
pendent candidate and we also enclose a photo-
copy of her application to have her name placed
on the General Election Ballot.
"The County Judge of Jim Wells County has
asked us to obtain your formal opinion as to
whether or not the form of the petition and the
application are legally sufficient to consti-
tute a nomination of Mrs. Villanueva as an in-
dependent candidate for the Office of Justice
of the Peace, Precinct I, Jim Wells County,
Texas: and whether or not the petition was
presented to him in sufficient time to qualify
that person as a candidate for the Office of the
Justice of the Peace at the November 8th General
Election and we hereby request such opinion,"
Prior to the order of July 12, 1966, there were in
existence for Justice Precinct No, 1 of Jim Wells County the
two separate offices of Justice of the Peace. Place No, 1 and
Justice of the Peace, Place No, 2. Under the provbsions of
Article XVI, Section 65 of the Texas Constitution, the Justice
of the Peace, Place No. 1 was serving a four-year term expiring
on December 31, 1968, and the Justice of the Peace, Place No, 2
was serving a four-year term expiring on December 31, 1966.
Therefore, at the general election in November, 1966, this latter
office was subject to being filled for a new four-year term
commencing on January 1, 1967, and it would have been proper
to make nominations for that office at the primary elections
held on May 7, 1966 (the date of the runoff primary was June 4,
1966). However, by the order of July 12, 1966, these previously
existing offices were abolished and the distinct separate office
of Justice of the Peace, Precinct No. 1 was brought into exist-
ence. Thereupon, any previously-made nominations for the abolished
-3686-
Bon. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 3 (C-767)
office of Justice of the Peace, Place No. 2 became void, and this
new office became subject to filling by election at the general
election this year, for a four-year term commencing on (January 1,
1967. Brown v, Meeks, 96 S.W.Zd 839 (Tex.Ci.v.App.1936, error
dism.); Tex. Const., Art. XVI, Sec. 65: Att'y Gen. Ops. WW-1292
and 1386 (1962).
In this opinion, therefore, we are concerned with the
nomination of an independent candidate for an office which came
into existence after the statutory filing deadlines in Articles
13.47a and 13.50 of the Texas Election Code. The first question
to be settled ls,the timeliness of the petition, Article r3.12a
of the Texas Election Code, enacted in 1963, provides methods and
deadlines for making nominations for unexpired terms in offices
where the vacancy giving rise to the unexpired term occurs after
the deadline for filing in the primaries. Under paragraph (5)
of Article 13.12a, for a vacancy occurring on July 12, 1966,
the petition of an independent candidate could be filed at any
time up to midnight of October 3, 1966 ("not later than thirty-
five days before the day of the general election"). However,
we are of the opinion that Article 13.12a does not cover the
present situation, but applies only to unexpired terms.
We have, then, a situation not covered by any statutory
provision. This was the legal situation involved in Attorney Gen-
eral's Opinion WW-367 (1958jr which dealt with the methods for
making nominations for an unexpired term in the office of County
Attorney before enactment of Article 13.12a, where the vacancy
occurred too late for nominations to be made in the primaries. In
that opinion, dated September 15, 1958, the vacancy had not yet
occurred but it was contemplated that a vacancy might occur prior
to the general election in November of that year by resignation of
the incumbent. The opinion held that a political party could make
a nomination at its county convention (if the vacancy occurred
before the date of the convention) or at its state convention if
the county convention had not made a nomination, and that persons
could also run as independent candidates or as write-in candi-
dates. A further question read as follows:
"(3) If it is possible for a candidate to
get his name on the ballot as an independent,
when must his application be filed and does the
general law pertaining to independents apply to
the prerequisites for getting his name on the
-3687-
Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 4 (C-767;
ballot?"
The opinion held that the candidacy of an independent
candidate would be subject to the general provisions of the
Election Code governing independent candidates (Arts. 13.50-
13.52) except as to the deadline for filing the application
(petition) and consent to become a candidate. After discussing
the holding of the unreported case of Sterrett v. Bver, Cause
No. 16,058, Dallas Court of Civil Appeals, decided October 5,
1956, the opinion concluded:
I'** * By similar reasoning, we think
candidates are entitled to a reasonable time
within which to file their applications after
the vacancy occurs, but in any event the ap-
plication must be filed in sufficient time to
permit the election officers to have the ballots
prepared in accordance with statutory require-
ments. What constitutes a reasonable time for
candidates to file for the office of County
Attorney of Nueces County will be a matter for
the initial determination of the County Judge,
the officer with whom the applications are to
be filed."
We repeat that what constitutes a reasonable time for
independent candidates to file in the present situation is for
the inktial determination of the County Judge, However, we will
offer some suggestions in regard to guidelines for determining
what constitutes a reasonable time.
The statutory requirements referred to in the preceding
quotation are that the names of candidates be posted for ten days
before the ballots are ordered to be printed (Elec, Code, Art.
13.32) and that the ballots be printed in time for absentee
; voting to begin on the 20th day before election day (Elec. Code,
Art. 5.05). These requirements fix the final possible date at
.some time considerably beyond September 9, the date on which the
present petition was filed,
Within this possible period, we think the County Judge
of Jim Wells County could have announced a predetermined deadline
-3688-
Hbn. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 5 (C-767).
for receiving applications of independent candidates, under which
any period of at least 30 days following the creation of the office
conceivably might have been deemed a reasonable time, based upon
an analogy to the maximum of 30 days available under Article
13.50 for circulation of the application in instances where it
could not be circulated until after the second primary because
of a runoff contest for a nomination to the office involved. How-
ever, we believe the deadline under Article 13.12a, noted above,
would provide a more appropriate analogy for the County Judge's
guidance in fixing a deadline ahead of its occurrence. And where
no deadline had been fixed, we believe independent candidates
would be entitled to assume in all events that a petition filed
by the date of the September state convention of political parties
(see Elec. Code, Art. 13.38) would be timely, since party nomi-
nations could be made through that date.
You have asked also whether the form of the petition
and Mrs. Villanueva's application are legally sufficient to
constitute a nomination. In answering this question we bear
in mind the holding in Attorney General's Opinion No. WW-509
(19581, based on Weatherlv v. Fulcrham,153 Tex. 481, 271 S.W.2d
938 (1954) and Ferris v, Carlson, 158 Tex. 546, 314 S.W.2d 577
(19581, with respect to the lack of any authority in the County
Judge to look beyond the face of the petition itself and official
records in passing on the sufficiency of a petition and the
validity of signatures appearing thereon.
Ths only possible deficiency we detect in the petition
nominating Mrs. Villanueva (officially called an application in
the Election Code) is with reference to the requirement in
Article 13.50 that the application show the address of each
voter signing it. A street address is shown for each signer',
but the city or town is not shown. However, a Jim Wells poll
tax receipt number is listed for each signer, and the list of
qualified voters as well as the duplicate receipt will show the
signer's full address. In these circumstances, we believe the
listing of the street address alone is a substantial and suf-
ficient compliance with the statutory requirement.
Article 13.52 of the Election Code contains the following
provision:
-3689-
Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 6 (C-767)
M* * * [A]ny candidate who is required by
Art. 13,47a of this Code to file a statement of
intent to become an independent candidate must
have filed such statement in compliance with
the provisions of that article, and any candi-
date not required to file such statement must
file with the Secretary of State or the county
judge, as the case may be, his written consent
to become a candidate, within thirty days after
the second primary election day."
The deadline for filing the statement required by Article
13.47a is the first Monday in February preceding the election. An
independent candidate for an office created at a date when com-
pliance with this article is impossible is not required to file
a statement in accordance with the provisions of that statute.
Att'y Gen. Op, WW-1386 (1962).
On September 9, 1966, there was filed with the County
Judge a document, signed by Mrs. Villanueva and acknowledged by
her on that date, headed "Application to Have Name on Election
Ballot" and requesting "that my name be placed upon the official
ballot for the General Election to be held on the 8th day of
November, 1966, as an independent candidate for the office of
Justice of the Peace, Precinct I, Jim Wells County, Texas, Full
Term." The document also lists Mrs. Villanueva's occupation,
age. and post office address. In our opinion, this document
constitutes a "written consent to become a candidate" for the
office involved,
SUMMARY
Where the two offices of Justice of the
Peace, Precinct No, 1, Place No. 1 and Place
No. 2 were abolished and the separate office
of Justice of the Peace, Precinct No. 1 was
created by an order of the Commissioners Court
entered on July 12, 1966, an election for a
term of four years for the new office, to be-
gin on January 1, 1967, should be held at the
general election in November, 1966. Under these
circumstances, a person desiring to become an
-3690-
Hon. John C. Mullen, Hon F. B. Lloyd, Jr., page 7 (C-767)
independent candidate for the office is not
required to file his application (petition) by
the deadline specified in Article 13.50 of the
Texas Election Code, and must be allowed a rea-
sonable time in which to file his application
and consent to run.
In the present instance, the papers filed
with the County Judge of Jim Wells County in
behalf of the candidate named in the voters'
petition satisfy the documentary requirements
for becoming an independent candidate for the
office involved.
Yours very truly,
WAGGONER CARR
Attorney General
Mary k, Wall
MRW:ra Assistant
APPROVEL:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Paul Phy
Harold Kennedy
Alan Minter
APPRWEB FOR THE ATTORNEY GENERAL
BY: T. B. Wright
-3691-