Untitled Texas Attorney General Opinion

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 TEXAS Superseded by amdndment to Art. 14.01 Texas Electi Code in 1963 March 2, 1953 Hon.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