Honorable Jules Damianl, Jr. Opinion No. Ed-1384
Criminal District Attorney
Galveston County Courthouse Re: Whether a political party
Galveston, Texas has authority to nominate
a candidate for the'office
of County Tax Assessor-
Collector to go on the
General Election ballot,
rrherethe Incumbent Tax
Assessor-Collector died
with more than two years
left in his term of office,
such death occurring too
late to select a nominee
Dear Mr. Damiani: at the Primary election.
In your letter you state1
__ elected to
"John H. Oberndorfer-was
the office of Assessor-Collector of Taxes
of Galveston County, for a period of four
years, at the General Election In Novem-
ber, 1960. as provided by the provisions
of Art. 1.6,paragraph 65 of the Consti-
tution UT the State of Texas, and held
that office,until his death on may 31st,
1962, during the middle of his term of
officef .
"The vacancy in the office of Assessor-
Collector of Taxes has been filled by ap-
pointment by the Commissioners Court as
provided for by Art. 2355, R.C.S. until
the next general election.
"The office of Assessor-Collector of
Taxes was not on the ballot at the Demo-
cratic Primary election of Saturday, May
5th, 1962."
.
You have asked the following questions!
"As there wasno nominee for the of-
flee of Assessor-Collector of Taxes on
Honorable Jules Damianl, Jr., page 2 Opinion No. NW-1384
the May Primary Election ballot, the quee-
tlon arises, does any political party
(either Democratic, Republican or other-
wise) have the authority to meet and
nominate a nominee, whose names would be
printed upon the Official Ballot at the ,~
General Election to be held on November
6th, lg62?
"Secondly - should the Attorney General
hold and/or should a court of competent
jurisdiction decide that a political party
does not have the authority to nominate a
candidate whose name would go upon the
General Election ballot In November, and
further should no petition of an Indepen-
dent candidate be filed with the county
judge, as provided by Art. 13.53, Election
Code, would the Electoral Board have the
authority to place the office of Assessor-
Collector of Taxes on the General Election
ballot in November, so that a voter would
have the right to write-in the name of a
candidate of his choice, for said office,
as is provided for In Sec. 16, Art. 7.14,
Election Code, under the provisions of
the voting machine laws; Galveston County
having adopted and are using voting ma-
chines In all elections?"
Art. 6.04, Texas Election Code, reads In part as follows:
"If a nominee dies or declines his
nomination, and the vacancy so created
shall have been filled, and such facts
shall have been duly certified in accord-
ance with the provisions of this Code,
the Secretary of State or Cocunty Judge,
as the case may be, shall promptly not!fy
the official board created by this law
to furnish election supplies that such
vacancy has occurred and the name of the
new nominee shall then be printed upon
the official ballot, If the ballots are
not already printed. D e .:
"If a state or district official
who is serving a four (4) or a six (6)
Honorable Jules Damiani, Jr., page 3 Opinion No. W-1384
year term should die or resign on the
even numbered year In which he is not
a candidate, after the filing date of
the first primary election and before
the printing of the ballot for the gene-
ral election, the state committee for
each political party in the case of
state officers and the appropriate dis-
trict committee for each political party
in the case of district officers shall
have the power to name a nominee for
such position and to certify the name
to the proper election board to have
the name printed on the general elec.-
tlon ballot. 0 . .”
Art. 13.56, Texas Election Code, reads as follows:
“A nominee may decline and annul
his nomination by delivering to the
officer with whom the certificate of
his nomination is filed, ten (IO) days
before the election, If It be for a
city office, and twenty (20) days in
other cases, a declaration in writing,
signed by him before some officer
authorized to take acknowledgments,
Upon such declination (or In case of
death of a nominee), the executive com-
mittee of a party, or a majorit,yof
them for the State, district or county,
as the office to be nominated may re-
quire, may nominate a candidate to
supply the vacancy by filing with the
Secretary of State In the case of State
or district officer, or wlth.the county
Judge, in the case of county or precinct
officer, a certificate duly signed and
acknowledged by them, setting forth the
cause of the vacancy, the name of the
new nominee, and office for which he
was nominated and when and how he was
nominated. No executive committee
shall ever have power of nomination,
except where provided for by law.” pm-
phasis addew
Honorable Jules Damlanl, Jr., Page 4 Opinion No. WW-1384
Art. 6.04, Election Code, provides the procedure to be
followed If an-office holde&who holds a state or district
office
____~- should
~~~ d’Feor resiiz
~..~ -n In the middle of his four or six
-term. Art. 13.56 sets out the procedure to be followed
in the case of death of a party nominee, or declination of nomi-
nation by a party nominee. Mr. Oberndorfer did not hold a state
or district office: he held a county office. So, Art. 6.04,
Election Code, does not apply to your situation. Mr. Oberndor-
fer was not a nominee; 1962 is not the year for County Tax
Assessor-Collector’s terms of office to expire. No party nomi-
nees were selected In the Primary elections of 1962. Had Mr.
Oberndorfer’s death occurred earlier irthe year, it would have
been possible for the County Executive Committee of each party
to announce that they would accept applications from candidates
for the unexpired term of Mr. Oberndorfer, announce the amount
of the filing fee and set a deadline for filing. This was done
this year In Travis County, upon the death of its Tax Assessor-
Collector. See Attorney General’s Opinion No. ww-827 (not a -
plicable to State and district offices. Meyers v. Smith, 31F;
S.W.2d 631). But Mr. Oberndorfer’s death occurred after the
First Primary election of May 5, 1962. The person appointed
by the Commissioners Court serves only until the General Election
of November, 1962. His successor will be selected at that elec-
tion, and will serve out the remainder of Mr. Oberndorfer’s term.
This situation is clearly not covered:by the Election Code.
In Brewster v. Massey, 232 S.W.2d 678 (Clv.App. 1950; Mand. over-
ruled) the courts were faced with a Similar Situation. To show
the sikilarity of situations, we quote from the Court’s state-
ment of the facts, at page 679:
“Prior to January 1, 1948, /r949 q
Judge Walter Morris was elected to serve
a term of four years beginning on Janu-
ar:-2, 1948, flg&g g as Judge pf the
67th District Court, a district com-
nosed of the area which comprises Tar-
rant County. Judge Morris qualified
and served as judge of such court un-
til h4s death on August 4, 1950. Since
the year 1950 fell in .the middle of his
term, and since his death occurred af-
ter the Democratic primary election was
held that year, no one was nominated in
the 1950 primary election for such office.
“At the regular state convention of
the Democratic Party held fn Mineral
“ .
Honorable Jules Damlani, Jr., page 5 Opinion No. WW-1384
Wells on September 12, 1950, Harris Brew-
ster, the relator in this proceeding, was
nominated by the convention for the of-
fice In question as the party nominee to
appear on the Ncvember ballot. Tne nomi-
nation by the convention was made on re-
commendation of and pursuant to a reso-
lution adopted by v.lestate executive
committee of the party, and the nomina-
tion was duly certified by the proper
officers of the party to the county clerk
of Tarrant County."
At page 682, the Court stated:
III . . the statutes do not require,
nor contemplate, that nominations be
made in the primary election for offices
which are not expected to become vacant
at the end of that year. 'Therewas no
way a valid nomination could have been
made in the primary election for judge
of the 67th District Court in 1950,
while the Incumbent was still alive
and serving, and had been elected for
a term which was not t'oexpire until
the end of 1952. D y an
And at page 68$, the Cou.rt,
held:
"I?lestate convention, under all
the decisions, Is th? most authori-
tative body of the party9 at least
with respect:to a.ff'airsof the party
within the state, and under the prin-
ciples which we have referred to un-
doubtedly has aluthorityto attend to
the business of the party in such way
as it sees fit, subject to such regu-
lations and limitations as have been
Imposed by the statutes. There was
presented to the state convention a
situation where an important public
office was to be filled in the gene-
ral election. S , S Under all the pro-
nouncements of our courts, we feel com-
pelled to hold that the nomination was
Honorable Jules Damiani, Jr., page 6 Opinion No. W-1384
valid. . . . The right of the party
and of all its members to .have a noml-
nee on the November ballot cannot be
ignored,."
In 1951 the Texas Election Code was enacted, and included
therein was Art. 6.04, su ra When a vacancy occurred in the
riminal District Court No. 3 of Harris
office of judge of the zP--*
County, on June 1, 19.58,in the middle of the judge's four year
term, the Democratic District Committee selected one Love as
the Democratic nominee for that office. Thereafter, the Demo-
cratic State Convention, acting on a resolution by the state
executive committee, nominated one Krichamer, as had been done
in the Brewster v. Massey case,
S.W.2d -269 (Civ.App., 1958) the ?%%'he$ $zt" ktMi?g:' z:zc-
tlon Code, was the law governing the situation, and'ruied'that
Mr. Love who had been select,edby the District Committee was
the Democratic nominee, and not Mr. Krichamer, who had been
selected at the state convention.
'Ihecase of Williams v. Huntress, 153 Tex. 443, 272 S.W.2d
87 (19.54)presented another situation not covered by statute.
A new court had been created, the Special 37th District Court
of Bexar County. By the terms of the statute creating the court,
such court did nrt come into existence until September 1, 1954.
Mr. Spears was selected by the Democratic County Convention to
be the nominee, and Mr. Williams was selected by the Democratic
State Convention to be the Democratic nominee for such office.
The Court stated at page 88:
,I
. . . We have found no statute
specifically placing the power of
appointment for a district office
where the need for appointment arises
from the fact that a new office has
been created In such a fashion that
the nominee is not selected at the
regular primary.
"The law is 'settled that where
the legislature has not specifically
regulated party affairs, the party
itself has the right to prescribe
rules and regulations governing it-
self. . . .
II
. . . \:
. .
Honorable Jules Damlani, Jr., page 7 Opinion No. WW-1384
“We hold that In this situation
the State Convention had the power
to select a candidate for district
office and that it legally exercised
that ,power. It seems to be uncontro-
verted that relator does have a regu-
lar certificate of nomination from
the State Democratic Convention.”
The Court ruled in favor of Mr. Williams, who had been selected
as the Democratic nominee by the Democratic State Convention,
While we find no case in which the State Convention of a
party has selected a nominee for an office, which is purely of
a county or precinct nature, nevertheless, we are of the opinion
that the following conciuslons may be drawn from the above cases:
1. A political party is entitled
to have a nominee for every office
which is to ‘bevoted on by the people
at a General ELection.
2. If the Election Code provides
a method of selecting such party nomi-
nee, the method provided in the Elec-
tion Code is exclusive, and must be
followed; otherwise, there will be no
party nominee for such office.
3. If the sit.uationis one in
which there Is no applicable law,
then ‘IO. e the party itself has
the right to prescribe rules and
regulations governing Itself.”
4. The state convention of a
political party /)a O s is the most
authoritative body of the party
. . e ,wlthrespect to the affairs J
of the party within the state O D .
and has authority to attend to the
business of the party in such way as
It sees fit, subject to such regu-
lations and limitations as have been
imposed by t.hestatutes.”
In answer to your ‘firstq,uestion,we hold that the various
bona fide political parties have the authority to nominate a
ii
Honorable Jules Damiani, Jr., page 8 Opinion No. W'W-1384
nominee for the office of Assessor and Collector of Taxes of
Galveston County, for the unexpired term of.the late _^
John H.
Oberndorfer, the names of sucn nominees to ce printed in their
respective party columns on the General Election ballot in the
General Election of November, 1962. Such nominations may be
,made at the state conventions of such parties,
While it is not necessary to answer your second question
in detail, we point out that a method must be provided for voters
to express their choice by write-in vote, since the voters are
not required to cast their votes for either a party nominee or
independent candidates, whose names are printed on the ballot.
If the voters prefer someone whose name is not printed on the
ballot at all, the will of the voters must prevail. Note the
statutory provisions authorizing write-in votes for paper bal-
lots In Art. 6.06, Election Code, and for voting machines in
Sec. 16, Art. 7.14, Election Code.
SUMMARY
Where a County Tax Assessor-Collector died in
office In the middle of his term, during an elec-
tion year when he was not required to run, after
the party primary eiectlon has been held, but
prior to the General Election to be held that year,
there being no applicable statutes in the Election
Code governing such a situation in the case of a
county office, the various bona fide political
oarties have the authority to nominate nominees
for such office, the names of such nominees to
be printed in their respective party columns on
the General Election ballot as candidates for
the remainder of the unexpired term of such of-
fice. Such nominations may be made at the state
conventions of such parties.
A method must be provided for voters to
express their choice by write-in vote, since the
voters are not required to cast their votes for
either a party nominee or independent candidates,
whose names are printed on the ballot. If the
voters prefer someone whose name Is not printed
on the ballot at all, the will of the voters must
prevail.
Yours very truly,
WILL WILSON
Attorney General of Texas
Honorable Jules Damiani, Jr., page 9 Opinion No. WW-1384
-Y
Riley &gene Fletcher
Assistant
REF:rk
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
L. P. Lollar
Sam Stone
Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore