Untitled Texas Attorney General Opinion ( 1961 )

E EY GENE
AS
November 10, 1961
Honorable P. Frank Lake Opinion No. WW-1193
Secretary of State
Austin, Texas Re: Filing fees in special
congressional election
to be held on December
Dear Sir: 16, 1961.
Your opinion request reads as follows:
"Your opinion Is respectfully requested
concerning the statutory fll~ingfee which must
accompany.tha application submitted by a person
to appear upon the official ballot In the special
election to be held in the 13th Congressional
District of Texsrson the 16th day of December,
1961, for the purpose of electing a representative
in Congress for such district to serve out the un-
expired term of the Honorable Frank N. Ikard. The
special election in question was called,by
Qovernor Daniel on November 8th. The deadline
for filing ,an application to appear on the ballot
in such election is, as I have computed it, mld-
night of November 15th.
"Article 32a of the Texas Election Code
(Article 4.10, Vernon's Election Code), which
applies generally to applications to appear upon
the ballot at special elections, provides that
an application to appear on the ballot I * + *
must be filed not later than thirty (30) days
before any such special election, and must be
accompanied with a fee of * * * five dollars
($5.00) If a district or county office, * * *.I
"A new article, designated as Article 32b,
was added to the Election Code of Texas by Senate
Bill No. 3, Acts 57th Legislature, Second Called
Session, 1961. This Act becomes effective on
Honorable P. Frank Lake, page 2 (ww-1193)
November 13, 1961 (90 days after August 14, 1961,
the date of adjournment of the Second Called
Session of the 57th Legislature). Section la of
Article 32b reads as follows:
"'In any special election called to fill
a vacancy in the office of United States
Representative in any congressional district
of the state, the filing fee shall be Five Hundred
Dollars ($500.00).t
"The questions specifically submitted are:
"1. Will the provisions of Article 32a
providing for a filing fee of $5.00 apply to
applications received in this office prior to
midnight of November 12?
"2. Will the provisions of Section la of
Article 32b providing for a filing fee of
$500.00 apply to applications which are received
In this office between midnight of November 12
and the deadline for filing such application In
the election; or
“3. Will the provisions of Section la of
Article 32b apply to all applications received
in this office after November 8 and prior to
November 15 deadline?"
Article 32b of the Election Code, which becomes
effective on November 13, 1961, can have no force as law
before that date. Whether it will operate retroactively
after its effective date on fees paid before that date
depends, first, on whether the Legislature Intended to make
it retroactive, and, secondly, on whether such retroactive
operation would impair any vested rights. Even if the
Legislature did so intend, It could not be applied to Impair
a vested right in violation of Article 1, Section 16 of the
Texas Constitution, which provides that "no . . . retroactive
law . . . shall be made." This constitutional provision is
construed merely as forbidding the enactment of any law that
will prejudicially affect existing; vested rights, or the
operation of a law In such a manner as to have that effect.
r -
Honorable P. Frank Lake, page 3 (WW-1193)
The inhibition is not ordinarily extended to a procedural or
remedial statute, or, in fact, to any act which does not
disturb or impair vested.rlghts. 39 Tex.Jur., Statutes,
Sec. 27. In our opinion, a person who files his application
as a candidate prior to November 13, and pays the filing fee
prescribed In the statute in effect on the date of filing,
will not acquire any vested rightwhich would prevent a
subsequent change in the election proceduies.
Since there would be no constitutional obstacle
to making the fee provision of Article 32b operative retro-
actively in elections called before Its effective date, the
answer to your questions depends on whether the Legislature
Intended for It to have euch operation.
We have found no case construing the effect of
statutory changes in election procedures which become effeo-
tlve during the interval between the date on which an elec-
tion Is called and the date on which it is held. The closest
analogy is found in cases dealing with changes in procedure
in pending legal proceedings. The Legislature may change
procedures In pending proceedings, and a statute changing
proceedings prima facie applies to pending proceedings.
Walker v. Lylea, 45 S.W.2d 315 (Tex.Civ.App. 1931, affirmed
124 T . ???S.W.2d 1113); Devlin v. Held Bro8., 47
~.~.2r383 tTex.Clv.App. 1932; error diam.).
The election in question is to take place after
the effective date of Article 32b of the Election Code.
Further, the filing deadline occurs after the effective date
of the new law. We believe that It was the intention of the
Legislature that all election procedures, Including the pay-
ment of filing fees, be governed by the provisions of the
new law,. The law is prospective In operation and prescribes
the entire procedure for elections held after the effective
date of the act.
To construe the statute otherwise would attribute
to the Legislature an intent to allow some candidates to pay
a fee of five dollars and to require others to pay a fee of
five hundred dollars.
In Wood v. State, 133 Tex. 110, 126 S.W.2d 4
(1939), the Supreme Court of Texas said:
Honorable P. Frank Lake, page 4 (m-1193)
"It Is the settled law.that statutes should
be construed so as to carry out the legislative
Intent, and when such Intent is,once ascertained,
it should be given effect, even though literal
meaning of the words used,therel.nIs not followed.
Also, statutes should never be given a construc-
tion that leads to uncertainty, Injustice, or
confusion, if It Is possible to construe them
otherwise."
We therefore hold that all candidates who file,
regardless of whether they file before or after the effec-
tive date of the act, must pay the five hundred dollar filing
fee prescribed In Article 32b of the Election Code.
SUMMARY
In the special con ressiona~lelection to be
held on December 16, 19iii
1, all candidates who
file applications to have.their names placed on
the ballot must,pay the five hundred dollar filing
fee prescribed In Article 32b of the Election Code,
regardless of whether they file before or after
the effective date of the'act.
Yours very truly,
WILL WILSON
Attorney General of Texas
By: &&-4?L
MKW:afg Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry Braswell
Marvin Thomas
Fred Werkenthln
Iola Wilcox
REVIEWEDFORTHEATTORNEYGENERAL
BY: Houghton Brownlee