Honorable Linton S. Savage
County Attorney
Nueces County
Corpus Christl, Texas
Dear Sir: Opinion No. C-2476
Re: Can the voters in the
general primary election
write in the name of a
person that they desire
to vote for and elect a
person who has not had
his name placed on the
ballot as required by
law?
Your recent request for an opinionof this
Department on the above stated question has been re-
ceived.
We quote from your letter as follows:
"The Secretary of the Democratic Execu-
tive Committee of Nueces County, Texas, has
asked me to obtain a ruling from your Depart-
ment in regard to writing in names on the
ballots at the general prfmary election.
"In a race for one of the Justices of
the Peace in this County, one candidate failed
to file his request to have his name placed
on the ballot for the coming primary election
as required by Article 3113 of the Revised
Civil Statutes of Texas. The othercandidate
filed his request a8 required by law. The
one who dfd not file is contemplating a,wrlte-
in campaign.
/The Secretary wants the following ques-
tion propoundeda 'Can the voters in the gen-
eral primary election write in the name of
a person that they desire to vote for and
Honorable Lfnton S. Savage, page 2 (O-2476)
elect a person who has not had his name placed
on the ballot as requI.redby law?'"
Article 3109, Vernon's Annotated Civil Statutes,
reads as follows:
"The vote at all general primaries shall
be by offfcfal ballot, which shall have printed
at the head the name of the party, and under
such head the names of all candidates, those
for each nomination being arranged in the
order determined by the various commfttees
as herein provided for, beneath the title
of the offPce for which the nomfnatfon is
sought0 The voter shall erase or mark out
all names he does not wfsh to vote for. The
official ballot shall be printed in black
ink upon white paper, and beneath the name
of each candidate thereof for State and dis-
trict offices, there shall be prfnted the
'county of his residence. The official bal-
lot shall be printed by the county committee
in each county, which shall furnish to the
presfding offfcer of the general primary for
each voting precinct at least one and one-
half times as many of such official ballots
as there are poll taxes paid for such pre-
cinct, as shown by the'tax collector's list.
Where two or more candfdates are to be nomi-
nated for the same office, to be voted for
by the qualffied voters of the same dfstrlct,
county or justice precfnct, such candidates
shall be voted for and nomfnations made sepa-
rately, and all nomLnatfons shall be separate-
ly designated on the official ballots by num-
bering the same, '11, '2', “3’ etc., prfnt-
lng the word 'No.', and the designating num-
ber after the title of the office for which
such nominations are to be made. Each can-
dldate for such nomination shall designate
in the announcement of hfs candfdacg, and
in his request to have hfs name placed on
the official ballot, the number of the nomi-
nation for which he desires to become a can-
didate, and the names of all candidates SO
requesting shall have thefr names prfnted
beneath the title of the office and the num-
ber so designated, Each voter shall vote
Honorable Lfnton 9. Savage, page 3 (O-2476)
i,;~,ar$yone candidate fop each such nomina-
We believe the opfnfon of the court In the
case of Dunagan vs. Jones, 76 9. W. (2d) 219, deflnlte-
ly answers your inquiry.
Mrs. Roy H. Dunagan was the contestee in
the above mentioned case and her husband, Roy H. Duna-
gan, prior to his death on July 15, 1934, had been an
active candidate for nomination for the offfce of County
Commissioner of Precinct No. 2 of Lamar County and soon
after his death Mrs. Dunagan was solicited by numerous
friends to make the race as a candidate for said office
in the coming election by having her friends wpite her
name in the offlcfol ballot used fn the election. She
consulted the County Attorney of Lamar County and he
wrote the Attorney General of the State requesting his
opinion as to whether MPS. Dunogan could become a can-
didate In the election, and If votes voted for her by
voters writing her name on the official ballot for said
election would be valid and counted for her. The Attor-
ney General advised that the votes would be legal and
could be counted. On receipt of this advlce, HPS. Duna-
gan began and thereafter waged an active campaign for
nomination in the election for the office of County
Conmissioner. Mrs. Dunagan did not comply wfth any
of the provisions of the primary election law required
of candidates in said primary election law to enable
them to have their names ppinted on the official bal-
lot as candidates and dfd not pay any portion of the
expenses of holding the election.
We quote from the above mentioned case as
follows3
"OrdlnaPlly, expmss provlsfon is made
by statute as to the form, requisites, prepa-
ration, and furnishing of ballots by means
of which the voter may record hfs choice.
And in this state there is such statutory
provision as to general primary elections.
The requfrement;besides others, is that the
name of all candidates shall be printed be-
neath the office for whfch nomination is
ssught0 Article 3109, R. S. Any candfdate
for county offfce I.8expressly given the
right to have hfs name appear printed on
Honorable Linton S. Savage, page 4 (O-2476)
the offialal ballot of the primmy election
upon written request signed and acknowledged
and filed with the county chairman not later
than Saturday before the third Monday In June
preceding such election. Article 3113. And
further, as a condftfon precedent, the county
candidate must pay to the executive committee
the amount of the estimated expenses of hold-
ing the primaPg apportioned to him. Article
3116, R. S. Since statutory provisions as
to the preparation of the ballot and as to
the printed names to appear thereon must
be strictly followed (20 C. J, B 164, p* 141),
the rfght of a candidate to have his name
printed on the official ballot would not be
evident in case of failure to timely fulfill
the requirements of the statute, and his ap-
plication for mandamus would probably be de-
nied by the court. In such case of default
In the compliance of the fair and reasonable
restrictions, the candidate would not have
the right as personal to him of legal relief
in the courts to compel the printing of his
name on the official ballot. But the purely
personal rights of the candidate in the re-
spect mentioned is quite apart and distinct
from and does not measure the right of the
voter to Indicate his choice of a person for
the nomination of a particular office. There
Is a well recognized difference between the
rlghts and duties of candldates in having
their names printed on the officfal ballot,
and the legal right of the voters in choos-
fng their nominees on the day of the general
primary election. The legal effect is not
necessarily attachfng of fnvalidlty of the
ballot as to that particular office and ren-
dering his vote not subject to be counted,
of a qualified voter writing the name of a
person on the ballot under a particular of-
fice. In the light of the history of the
adoption generally of the method of official
ballot, the present.leglslatfve provisions
as to tb.erequirement of the use of the of-
ficial ballot in the primary election may
be regarded as adopted rather for the bene-
fit of the votep, and as a safeguard to the
purity of elections, than for the personal
benefit only of the candidate.
.-,, -\
Honorable Llnton S. Savage, page 5 (O-2476)
"The decision of the question varies,
according to the phraseology of the statutes,
of whether a voter may vote for a person whose
name is not printed on the official ballot
by writing his name under the particular of-
fice, While the primary law of this state
does not contain direct authority to vote
by writing a name on the offfclal ballot,
yet the primary law does not forbid the mak-
ing of nominations in that manner. The stat-
ute simply provldes that 'the vote at all
general primaries shall be by official bal-
lot,' and that 'the voter shall erase OP mark
out all names he does not wfsh to vote for'.
Article 3109, R. S. There is no provision
that county candidates must be chosen by the
voters only from those names that are printed
on the official ballot. It is, therefore,
believed that the statute should be so con-
strued as to leave the voter with free choice
upon his own volltfon to erase or mark out
all printed names and write in the name of
a person not on the ballot under the partlcu-
lar office. The fundamental principle of
the direct primary Is to have expression of
the popular will by voting for the persons
freely chosen by them as nominees for the
particular offfces. The voice of the people
becomes of legal force when expressed at the
time and under the condltfons which have been
prescribed and pointed out for them by stat-
ute, or as allowed by existing law. There
appearing no legal reason why at the election
any voter who chose to do so should not vote
for the contestee, there Is no escape from
the conclusion that the contestant was not
at all events nominated for the particular
offfce. If he was not elected, he cannot
have the contestee ousted from the certified
nomination in this proceeding.
"The question decided is one of first
Impression fn this state, and authorities
of other cases are not here cited as being
without application."
In view of the foregoing case you are respect-
fully advised that it fs the opinion of this Department
Honorable Linton S. Savage, page 6 (O-2476) -_.*
that the qualified voters In the general primary elec-
tion can write in the name of any person for whom they
desire to vote and mark out all printed names under
the particular office in the general primary election;
and that the votes would be legal and could be counted,
and of course, if the person whose name was writte,n,.
in or on the ballot, received a sufficient number Of
votes as required by law, such person would be nomkna-
ted,
Trusting that the foregoing fully anSW,ePs
your inquiry, we are
Yours vergetmdy : ~:
ATTORNEY GENERAL '3'TEXAS
By /a/ Ardell W3.11iamc
Ardell WillWm!~ ,~ '1
A~saistfint~
AW:BBB:LM
APPROVED JUN 29, 1940
/a/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED
OPINION
COMMITTEE
BY BWB
CHAIRMAN