Untitled Texas Attorney General Opinion

THE A'ITOIRNEY GENERAL OF TEXAS Honorabft Frank X. Vance ~’ Opinion No. WW-1377 County Attorney Medina County Courthouse Re: Whether an Independent can- Honda, Ibaa didate who has failed to timely 1114 an affidavit as required by Station 3, Art. 13.47a, !kaa Election Code, may have his name printed on the General Alec- Dear Mr. Vanosr tion ballot. You have asked whether or not &dependent candidates for county and precinct offioes are entitled to have their namea printed on the General Eleotion ballot, ?ihen theg have flailed to oompay with Seotlon 3, Axt. 13.47a, Texa6 Eleotlan Code, whioh mpulres the filing of an affidavit of their Intention to run as Indtptndsnt oandidatse with the County Judge on OF before the first Monday in February of elsotlon year. In your Iettep you atate: “All county and precinct offficera of Medina County, except one precinct, run fop eleotidn as tIndependentf can- didatta in the general election in Nov- ember, and have been doing this for many years. !lhle ie being done as provided in Art. 13b53of the Election Code through a petition of vottrs rithin 30 days aftelr the pxQaalry, “Now a question has arisen, as Borne olalm that Art.’ 13.&a (new provision) of the Eleotlon Code rcsqutres that can- dldatta muat, file their agplloaCion to get their name8 on the ballot in Feb- ruary * All candidates (Independent) hagia,f;le$ an application, but not laut e* &phasia addeg- H. 8. 239# Chapter 90, page 273, Sac. 1 was enacted by the 57th Legislature at its Regular Session ln 1961, and haa been codified aI) AN. 13+47a, Ttxas Eltction Code, Sectionr 1 and 2 \ . Xonorable Frenk X, Vance, page 2 Opinion No, WW-1377 of Art. 13.47a are applicible to parties whioh nominate their candidatos by convention, and do not ooncern Independent candi- , dates. Stations 3 ahd 4 of Art. 13.47a, Texas Election Code, mad as follows: “Sac * 3. As a condition precedent to having a aandIdatess name Qrlnted on zhe official ballot under Artiole 13.5g or Article 230 mt. this Code, there must, In requirements of those two (2) Artlolee fll d With the peroon with whom thi wkttti ~vvllostlon must, thereunder, be tiled; an affidavit, dulr aoknowledged by the person desiring his name to be plaoed on the ballot stating his ooougl- tlon, aounty of refddenoe, post offlod address, l%e. and the offloe for whloh he Intehddr-t6 run. . “Sec. 4, lht requirements of Sections 1 end 3 hereof shall not apply to nOmlneCt8 fop unexpksed ,terme wherb the vacancy In office bccumtd aubsequtnt to the tenth day preceding the deadline for filing aa prescribed herein,’ Art. 13.12, Blleotfon Code, reads In part aa follows: ”a 0 0 “2. Any ouch rtqueat shall be flbed with the county ohalrman In oaae of’ ioikip and precinct offloers; au”,hf;;;eet- shall be file4 not later than 0II :. . .% Articles 13*50, to 13.53> Inclusive, Eleotlon Code, govern the filing of IndepeRdent candfdates. Art, 13.50 pertains to Independent candIdatea for stats and diatriot office. Art. 13.51 sets out the oath to the applIsatIonO Art. 13.52 pertalns to the Independent candidates8 consent to run, Art, 13.53 etatee that Independent candidates for county offloe ehall’flle their i I I Honorablr Prank X. Vance, page 3 Opinion No. W-1377 application with the County Judge, accompanied by the petition of voters to 5s of all who voted in the county in the laat equal Qeneral tlection. Precinct offices are not mentioned in Art. 13.53, but Dancy v. Hunt, 294 S,W.2d 159 (Civ.App. 1956, error reS. n.F.8.‘) h ld th t Independent candidates for precinct of- fice murt pre&taa pttition signed by enough voters to be equal to 5# OS all who voted in the precinct in the last Oeneral Elec- tion. Note that Sec. 3, Art. 13.47a, Election Code, doea not af- fect th6 procedures laid down in Arts 13.50 and 13.53. Art. 13.47a atetea that an affidavit of intention to run, containing certain speciiied information must be filed “with the person with .whomthe rrltten application must, thereunder ,&ta. 13.50 and 13.59, be ?lled,” and such affidavit is “In additiontD the re- quirements of those two (2) Artlclea.” After filing the afTi- davlt oi intention to run on or before the first Monday in Feb- ruary, the In&ependerit*~candidate atill has until 30 days after the Second Primary Under Art@. 13.50 and 13.53 in which to file his petition algned by the required number of voters. Heretofore, it ha8 been possible for a proepective Indepen- dent canbidate to wait until both the First and Sedond Primaries . Were over in order to determine whether he wanted to face in the General Zleotion one or more party candidate% who had been ae- lected in the party primaries. Now, a candidate for office as an Independent candidate must file at the earn8 t-8 party candi- dates must file. IhFreafter, the party candidate makes hia race in the primary electYcJh8 or at the party convention (If his party is not required to hold a primary election), while the Indepen- dent candidate goes about rounding up signaturea for his petition. In come counties in Texas* it has been the practice for all can- didates to run as Independent candidates. The 1962 Qeneral Elec- tion ia the first General Election to be affected by Art. 13.47a, and the effect of this act wan not noted by some candidates un- til it was too late to comply with the provision oalllng for the affidavit of intention to run to be filed by the first Monday in February s This Is unfortunate, but the statute ir etate-wide in its application, without regard to the practice which has been heretofore followed. Set, 3p Art. 13.47a states that the filing of the affidavit by the first Monday in February Is “a condition precedent to having a candidate’s name printed on the official ballot” aa an Independent candidate, We hold, therefore, that where the race is to be made for an office, the,term of which be- gins on January l8 1963, Independent candidates must have filed the aiiidavft o? intention to run required in Seo. 3* Art. 13.47a, Honorable Frank X. Vance, page 4 Opinion No. W-1377 Blection Code, on or before the first Monday in February, 1962, &order to have their names printed on the General Election bal- . Under Sec. 4, Art. 13.47a, Election Code, the requirement for the affidavit, and Its timely filing, is not required If the race is to fill an unexpired term, where the vacancy in offlce (death, resignation or removal from office of the oiflce holder) occurred aster the tenth day preoedlng the flrat Monday in Feb- ruary . Therefore, if any races In Medina County are Sor county or precinct office to fill out the unexpired term of an office holder whose term of office does not expkre until December 31, 1964, and which ofiice holder died, reelgned, or was removed from office, alter January 25, 1962, then the requirement in Sec. 3, Art. 13.47a, Election Code, for an affidavit, timelaf filed, is not applicable. SUMMARY Where a county or precinat oiflce is to be filled at the General Election for a full four year term, an Independent candidate must have Siled his affidavit o? intention to run for such oftice with the County Judge on or before the Slrat Monday in February of the selection year, in order to have his name printed on the General Election ballot, a8 re- quired by Sec. 3,,Art. 13*47a, Election Code. The timely filing of &pah affidavit is a requirement uhioh la in addition to all other requirements ior Independent oandfdates found in Arts. 13.50 to 13.53, %nolusive, Election Code D Where only an unexpired term of a counts or precinct oifice is to be:fflled at tire Qcneral Election, and such vacancy in oifice occurred sub- sequent to the tenth day preceding the Plrat Mon- day in February o? the election years the aflida- vit referred to in Sec. 3, Art. 13.47a, Election Code, is not required, See, 4, Art, 13.47a, Elec- tion Code. Yours very truly, WILL WILSON Attorney General oi Texas Amlatant ,.. . . . Honorable Frank X. Vatice, page 5 Opinion No. W-1377 8tF:rk APPROVBD: OPINION COMMITTl$Ei: U. V. Geppert, Chairman Gordon Zuber Frank Booth Bob Patterson Pat Bailey ReVIEWED FOR THE ATTORNRY GENRRAL BY: Leonard Pasrmore