AUSTTN 11. TEXAS Superseded by amdndment
to Art. 14.01 Texas Electi
Code in 1963
March 2, 1953
Hon. Austin F. Anderson Opinion No. S-15
Criminal District Attorney
Bexar County He: Applicabilityof campaign
San Antonio, Texas expenditureprovisions In
the Texas Election Code
Dear Sir: to municipal elections.
You state that the City of San Antonio will hold an
election For city councilmen on April 7, 1953, and you re-
quest an opinion of this office on the following question:
"Do the provisions of Chapter 14 of the Texas
Election Code (Chspter492, Acts 52nd Deg., 1951,
p. 1097), relating to campaign expenditures,apply
to municipal elections so that a county or district
attorney may prosecute candidates for municipal
offices for violations of the same?"
If the csmpalgn expendftureprovisions of the Elec-
tion Code are applicable to mnnlclpal elections, the appllca-
bility must be found in the definitions contained in Section
237 of the Code. Section 237 reads:
'The word 'candidate'shall mean any person who
has announced to any other person or to the public
that he is a candidate for the nomination For or the
election to any office which the laws of this State
require to be determined by an election. The words
'countyofflcet shall mean any office to be filled
by the choice of the voters residing in only one (1)
county or less than one (1) county. The words
'districtoffice' shall mean any office to be Pilled
by the choice of the voters residing in more than
one (1) county. The words 'state office' shall mean
any office to be filled by the choice of voters of
the entire State. . . ."
Section 239 states the purposes for which a candi-
date may ma.kc campaign expenditures. Section 244 requires
the candidate to file statements showing contributionsand
expenditures,such statements being filed with the county
clerk in the case OF county oFfices and with the Secretary
of State in the case of district and state offices. Section
242 subjects any candidate who makes an unlawful csmpalgn
Hon. Austin F. Anderson, page 2 (S-15)
expenditureto a Fine of $100 to $5000 and to imprisonment
in the penitentiaryfrom one to Five years; and Section 244
makes any candidate Failing to file, or awearing Falsely In,
the statementsrequired by that section subject to similar
criminal penalties.
It is our opinion that the provisions OF Chapter 14
do not apply to elections For city councilmen in the City of
San Antonio, which Is a home rule city. Section 237 defines
a candidate as any person who has announced that he Is a
candidate for an ofFice which the laws of this State re ulre
to be determined by an election. There Is no law of x&i---
State requiring that officers of a home rule city be selected
through an election. To the contrary, Article 1175, Vernon's
Civil Statutes, expressly states that home rule cities may
determine the manner and mode of selecting officers. Under
this power, the charter of a home rule city might provide-for
the selection of Its governing body by some manner other than
by election. In State ex rel. Cline v. Norris, 33 S.W.2d 050
(Tex.Civ.ADD.1930)nctlon
. between
nominatio&‘whl& the laws of this State rc uire to be made
through primary elections and those which-&--izw* pC,I$l$ttter
be made In this manner. We think the term "laws of
was here intended to refer to the Constitution of the State and
statutes enacted by the Legislatureand was not Intended to
include charter provisions or ordinances adopted pursuant to
constitutionalor statutory grant of power to municlpalltiea.
Therefore, since there Is no constitutionalprovision or legis-
lative enactment requiring a home rule city to elect Its gov-
erning body, it is our opinion that candidates For the office
of city councilman of the City of San Antonio do not come
within the definition OF candidate in Section 237.
WC also agree with your conclusion that these Pro-
visions do not apply to municipal elections generally. It
must be conceded that the deFinition of candidate contained
in Section 237 Is broad enough to include candidates for
certain municipal offices, as well as elective ofFices for
political subdlvlslons,such as school districts, junlor
college districts, water districts, soil conservationdls-
tricts, and 80 on,--in brief, all offices which the laws of
the State require to be Filled by an election. Likewise,
the definitions of county office, district office, and state
office are comprehensivetnough to include all such offices.
However, it is our opinion that the Legislature did not in-
tend to encompass such a broad range within these definitions.
The statutes which were predecessors OF the cam-
paign expenditureprovisions in Chapter 14 of the Election
Code (Arts. 3168-3173,V.C.S.) applied only to nomination
, t.
,, page ,3 (S-15)
Hon. Austin F. Anderson
for OFfices which the law8 of the State required to be deter-
mined by a primary election. The deflnltlons of ceunty, dls-
trlct, and state nomination respectivelycorrespondedto the
present definitions of county, district, and state office.
Similarly, candidates for county nominationswere required
to file statementswith the county clerk and candidates for
state and district nominationswere required to File state-
ments with the Secretary of State. In State ex rel. Cllne
v. Norris, supra, the court held that these statutes applied
only to primary elections which were required by law, namely,
the primaries which Article 3101, V.C.S. (now Section 180 of
the Election Code) required certain political parties to hold
for nominating candidates for congressional;state, district,
county, and precinct offices in the general election held
every two years on the First Tuesday after the firstMonday
in November in accordancewith Article 2930, V.C.S. (now
Section 9 of the Election Code).
It is seen that the change made In Section 237 was
to extend Its provisions to include candidates For election
to an ofFice as well as For nomination for the office. 'de
are of the opinion that these changes in Section 237 were
intended only to extend the types of election8 so as to in-
clude general and special elections for the oFfices to be
filled and were not intended to enlarge the classes of of-
fices which the candidateswere seeking.
WC wish It to be understood that this opinion is
directed to you as a prosecuting officer inquiring about
his duties under the law. It is not to be taken as advice
to county clerks or other officer8 that they should not
accept statementswhich the candidatesmight proifer For
Filing. Until there has been a legislativeclarification
or a judicial interpretationof these provisions,we be-
lieve it the wiser course for these officers to accept
statementswhich are tendered to them for Filing.
SuMMAFiY
The provisions of Section 239 of the Texas
Election Code (Art. 14.03, Vernon's Election Code)
limiting the purposes for which campaign expenditures
may be made, and of Section 244 OF the Election Code
(Art. 14.08, Vernon's Election Code) requiring the
filing of sworn statements of cempalgn contributions
and expenditures,a0 not apply to candidates for
municipal oFfice in a city election. They apply
only to candidates for nomination for or election
to Full terms and unexpired terms for offices which
Hon. Austin F. Anderson, page 4 (S-15)
are regularly filled in the general election held
pursuant to Section 9 of the Election Code.
APPROVED: Yours very truly,
Willis E. (iresham JOHN BEN SKEPPWD
Reviewer Attorney ventral
C. K. Richards
Reviewer
BY **be
Robert S. Trottl Mary K. wall
First Assistant Assistant
John Ben Sheppcrd
Attorney General
MKW:w