Untitled Texas Attorney General Opinion

OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Bonorable E. L. Dunoan
County Attonmy
Nolan County
Sweetwater, Toxae
Dear sir:
ofirt nlto-in
u nai-
in De7llocretio
0 hio name priatoa
ent oanaidate ?or
a ballot r0r the
or 4th wherrln you
wa6 a write-in
primarymy have
r the g6noral aleetioa aa
opendent, or non-parthan
Civil Statutee, lQ28, pre-
naent 6anaiafh98 t0 hare
oial ballot for general
omxal4atee for 0rfio0 at a
own sleotlon may have their
on the official ballot on appli- ‘~
.county ~0r-
y or town or-
Ban6 foml an4
rein preaorlbea
for applicationa to be made to the Yeoretery of
State in oaae of State or diatrlot lndepandent nom-
ination; providad, that a petition 0r five par oent
or the entire vote cast In euoh county, oity or
town at the last general eleotlon shall be required
ror such nom2riatiOn.”
Honorable 5. L. Duncan, Rage 2
The above quoted statute in -providing *auoh applf-
cation being in the 881~8 form and subject to the same re-
quuirements heroin prescribed for applloationa to bo mada to
the Seoretflry 0r State in case of State or distrlot lndepena-
ent nomInatlcn* lncorporatss by reference the following
clause contained in Article 3159, which reads:
” . and provided, alao, that no parron
who has &d at a primary eleotlon ahall sign
an application in favor of anyone r0r an 0fri00
for which a nominctlon was made at such primary
electIoh.*
In order to meet the roquleltea proaoribod by tho
roregolng statute, It is noceasarp that ths Independent oandl-
date for sheriff present to the oounty judge a petition 8Igned
by a aurflclent number of qualified votera 0r tho oounty to
equal floe per cent of the entlro vote oast in aald county at
the last general eleation, and that all of such slgnatorlos
have not voted in the last Demooratlo primary oleotlon.
Aaauming that the oandldata hae met thoao raqulra-
Blents, wa come now to a conelderatlon of the qua&Ion of whr-
ther he 1s entltled to have his name prInted on the ballot at
the general election as an lndspendent oandldate, even though
he partlolpated aa a candidate, and presumably also a6 a voter,
in the Demooratio primary at which the Damooratlo nominee for
the orfioe of shsrlfr was selaotsd.
Artiols 3110, Revised Civil Statutes, 19&S, provides
for the party pledge to be printed on ballots on primary ela~o-
tion and reads as follows:
“No 0rfi0iai ballot r0r primary eleatlon ehall
have on It any symbol or devioe or any printed mat-
ter, except a unir0nfi primary test, roadfng as fol-
lows: ‘I am a (inserting name of polltlcal
party or organlmof which the voter ia a member)
and pledge myself to support the nomlnae of this prim-
ary;’ and any ballot which ahall not contain such
,prInted test above the namea of the candidates there-
on, shall be void and shall not be oountod.”
The Supreme Court of Texan has re~peatedly held that
the pledge *to support the nomlnso of this primary,* contained
on the primary ballot a 8 provided by Article 3110, supra, im-
poses merely a moral and not a legal obligation on the Voter.
.
Eonorabla E. L. Dunoan, Face 3
8.0 Kay v. Sohnolder, 110 Tex. 359, 2l6 8. W. 479, E21 S.
w. 6601 westorman v. Mlms, 111 Tax. 29, 227 S.W. 1781 Lwa
v. Wll~o~, 119 Tax. 256 28 9. w, (2d) 515; Lovo v. Buokaor,
121 Tox. 369, 49 6. W. [24) 425.
In tho oasa of Westerman v. lcIm#, nuBa, tho su-
pram0 OouHi of Toxaa had before it a question eimilar to the
ona hors under oonsldaratlon. In that ca6e the roqui8Ito
aumbor of qua1Ifi.d 9Otorr of Oalraston Count who had not
participated in the Democratic primary, petit f aaed‘tbt tho
name of aubroy Fuller be printed a8 an Indapandont oandldata
for alstrlat judge on the general election ballot. AubmJ
Nlor had partlolpated and voted in the Demooratlo prima-
of that year, at which the Demooratio candldeto Par dirtriot
judge was nomlmtsd. The cult waa an original lpplioation
to tho supreme Court for a writ o? numdamusto acmpel the
Seoratary of State to issue his Inettructionr to tho County
Clerk dlreotlng that the name of Fuller be prlatod in tha In-
depandont column of the OffIOIal ballot. Tha Supz%tm~.Court
denied the mandamus. The entire oourt oonourred. In the ro-
rult, but Mr. Chief Justice Phillips based hlr daolelon on
the ground thet the statute preroriblng tho party pl dgo to
support ths nominees of thet party Impo8ass legal du1 jr upon
him. Said Judge Phllllpe, at pago 4E!l
"In virtue of the statutes, the duty to,perform
tha agraamant booam a legal duty; the right cf Judge
Street (the Damooratlo nomlhoa for district judge)
ar a benaflalarp of the duty beoame a legal right;
and it would oommandthe law'8 protaotlon a8 any
other lagal right.*
Tho majority of the oourt, however, a8 expraseed In the opin-
ion by bfr. Juetloa Greenwooa, reoognlerd the rule laid aown in
Kay v. Sohnalder, 110 Tex. 359, Z18 6. W. 479, that tho pledge
to mupport the party oandidata lmpoaee marely a moral and not
a legal obligation on %he voter.
Xr. Juetlor Gremwood dsolared at page 38:
*In our oplnlon a voter oannot take part in
a primary or oonvention 0r a party, to name party
nomlneor, wlthout assuming an obligation binding on
the voter's honor and coaaclenoe. Suoh obligation
inhere8 in the very nature of his eat, entirely re-
Eonorabls x. t. Duos, Fags 4
gardlsss of any sxprsss~plsdgs, and sntlrsly rs-
gsrdless OS ths requirsmants of any statute. The
obligation, like the promlss sxaoted by the ststuts,
whsn treated as governing future conduot, Is for oo-
operation in good faith to ssours ths suooess of the
nOdMe. Thers Is no reasonably oertaln measure of
bona fide cooperation in matters of this sort. The
votsr's oonduot must bs detsrmlnsd largely by his
own peouliar senso of propriety and of-right; Xt la
ror suoh rsssons that the oourts do not undsrtsks to
oompal psrrormsnoa o? the obligation. Bslng unsn-
toroeable through the oourts, the obligation Is a
moral obligation. . . .
“We do not say that oiroumstanoes might not aria.
under whloh ens wbo had p!irtloipatsd in a primary
would be rsllered of ths moral obligation which is
ordinarily lnourrsd not to undertake the nomInso*s
defeat. The present ease doss not call for ths ds-
tsrminstion of the atfeot ot extraordinary olroum-
stan0es.w
Mr. Justlos Orssnwood’s opinion dmlsd the matidamu
on the grounds that the oandldate having vIolatO@ hlo party
pledge by soeking to bsoome sn lndspsndent candidate at the
general elsotlon did not OCIPSinto a oourt of squlty with
~olsan handew and thsrofors his applloation for mandamus was
denied. We oontlnue to quota from the opinlonr
gearing concludqd that the petition of rela-
tbrs Is grounded on Conduot amounting to 811 lnrita-
tion to, and hsnae partlolpation In an aot tlolatirs
of good faith and OS oonsolonoe, It rollows that re-
lators did not ooms into oourt with aloan hands, a6
required to entitle thsm to.@s relief prayed for,
and hence the mandsmus Is d@i'Isd."
Under the opinion or the ms ority or the oourt in
Westerman v. Maims, the Demooratio no?J me has no lsgally sn-
ioroeable rlghts in the matter. Wor does ths man who seeks
to have his name plaoed on the ballot as an independent candl-
date. In neither case will a mandamus or sn lnjumtion aotion
lie either to place the aandidate*s name on the tlakst or pre-
vent its being plaoed thsreon.
Under ths authority of Weatanuan v. YIms, thsrsfors,
we ara oompellsd to advise you that whether ths'name of Inds-
484
*.
``gonoreble :. L. Dunoan, J?eage5
p8ndc:nt candid,?t& for sheriff ehculti b? placed on the general
election bnllot under these ciraumetanccs, Ii: a quectlon to
be determined by the County Judge. Xle d&oisiOn In the mat-
; ter, In the obsenoe of the exceptional circuzetances referred
I
to by Er. Justice Greenwoo:: in the last above ?uotatIon, will
net be disturbed by the OourtL. He nay base hiu deoislon upon
Eddetx-mlnatlon of the question of whether cIrcu:ietenoes exist
(in the vior6s of M.r. Justice Grsenwoti ) Wn$er which one who
had particlpetsd in a primary would be relieved of the morel
obli@tIon which le ordlnsrily Incurred not to undertake the
noml.nse*s 6efaat.”
ii&plying spe~lficnlly to your questlon, we are of
the opj.nIon the.t it rests within the dl,so:&tIon of the oounty
judge whether he will accept the application for the name of
an Independent oandidate for sherlf f to be printed on the bal-
lot for the general eleotion, where such candidate partiolpeted
8s a voter or ckndldets in the preceding Drmooratlc primary
k, eleotlon. Fe wish to point out aRain that such applioatlon, in
order to meet the requirements of ArtIolss 3159-3162, mu&t be
signed under oath by n sufficient number of qualified voters
of the county who did. not partI,cipnte In the primary election
1, to equal five per oent of the votes cast In the oounty at the
lest general elsotlon.
YOWS Very tNly
By~&%?~h~ .
Assietant
%IFK
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