THEAITORNEY GENERAL 

OF TEXAS 

WI& WILSON 

*x-r0RNEY GENERAI. 

Aus- IX.TEXA~ 

September 26, 1960 

Honorable Zollie Steakley 

Secretary of State 

Austin, Texas 

Dear Mr. Steakley: 

Opinion No. W-944 

Re: Whether nominations 

made by the county 

convention of a 

political party which 

is not required to 

hold primary elections 

should be certified to 

the Secretary of State 

or to the county clerk, 

Your request for an opinion reads as follows: 

"The Constitution Party has tendered to this 

office the certificate of the Harris County Chairman of the Party' listing the candidates of said 

party for certain county offices in Harris County. 

The certificate was tendered for the purpose of 

certification by this office to the County Clerk 

of Harris County of such candidates for a place 

on the general election ballot in Harris County. 

"The Chairman stated In connection with his 

tender of the certificate that the County Clerk 

of Harris County has refused to accept such certificate direotly to the county clerk and has taken 

the position that it Is the responsibility of the 

Secretary of State to certify these candidates for 

county office under Article 13.48 of the Texas 

Election Code. 

"Please advise Immediately whether or not it 

is the duty of this office to accept the certificate 

described above, and to certify the candidates for 

county office shown therein to the County Clerk of 

Harris County for the general election ballot, or 

if it is the legal duty of the County Clerk of Harris County to accept such a certificate tendered to 

him." 
Honorable Zollie Steakley, page 2 (Wk-944) 

Article 13.46 of the Election Code provides that 

the state committee of a political party which is not 

required to make nomination by a primary election shall 

decide whether the party will nominate state, district 

and county officers by convention or by primary elections, and shall certify their decision to the Secretary 

of State. If nominations are to be made by convention, 

the nominations for county offices are made by the county 

conventions held in accordance with Article 13.47. 

Article 13.48 provides for certification of the 

party's nominees in the following language: 

"Ally nominations so made by a State or district convention shall be certified by the ohalrman of the State or district committee of such 

party to the Secretary of State and a nomination 

made by a county convention, by the chairman of 

the county committee." 

This statute as first enacted in 1905 as part of the Terre11 

Election Law (Acts 29th Leg., 1st C.S., Ch. 11, Sec. gg), 

read as follows: 

"All nominations so made by a State or district conventions shall be certified by the chalrman of the State or district committees of such 

parties to the Secretary of State, and nomlnations made by county conventions by the chairman 

of the county committee.” 

It was carried forward into the Revisions of 1911 and 1925 

exactly in its present form, except that in these revisions 

there was a comma after "Secretary of State". 

The State Executive Committee of the Constitution 

Party, which comes within these statutes, decided that the 

party's nominations for the 1960 general election were to be 

made by convention and certified the deaision to the Secretary of State as required by Article 13.46. 

Unquestionably, a party whiah has complied with Articles 13.46 and 13.47 Is entitled to certify its nominees 

to some officer of the State, and the nominees are entitled 

to have their names placed on the ballot upon certification 

by the county chairman in proper form. Uncertainty of the 

State's administrative officers as to which of them has authority to aocept the certificate should not defeat the right 

of the candidates to appear on the ballot. 
. 

.‘.. 

Honorable Zollie Steakley, page 3 (W-944) 

A reading of Article 13.48 reveals immediately that 

It does not clearly state to whom the nominations made by 

a county convention are to be certified. It Is susceptible 

of two constructions. The first Is that the statute fails 

to designate any officer to receive the certificate. The 

second is that the designation of the Secretary of State in 

the first clause should be read into the last clause; that 

Is, that a nomination by a county convention shall be certified --- to the same officer by the chairman of the county 

committee. 

We have not found any court decision resolving this 

question of construction. Couch v. Hill, 10 S.W.2d 170 (Tex. 

Civ.App. 1928, error diem.), and Pulliam v. Trawalter, 120 

S.W.2d 108 (Tex.Civ.App. 1938), are the only cases we have 

found Involving a oertification of a nomination made by a 

county convention which was governed by Article 13.48. In 

the Couch case, the certification had been made directly to 

the county clerk. In Pulliam v. Trawalter, the opinion does 

not disclose whether the certifi ti h d been made directly 

to the county clerk, but you hav~ain~rm~d us that the records 

of your office do not show that the certificate passed through 

the Secretary of State's office. The question of whether the 

certificate had been submitted to the proper officer was not 

before the oourt in either of these oases, and the question was 

not raised or disoussed in either opinion. 

The question also has not been previously ruled on by 

the Attorney General's office. Attorney General's Opinion 

V-1529 (1952) considered the county clerk's,authority to pass 

on the validity of nominations whiah had been made by a county 

convention and certified directly to him by the county chairman, but the question of whether the nominees should originally 

have been certified to some other officer was not involved in 

the request. That opinion was written by the writer of the 

present opinion. For reasons similar to those to be developed 

in the present opinion, it was thought that oertiflcation 

directly to the oounty clerk would not be fatal to his authority to place the names of the nominees on the ballot and 

that it was therefore unnecessary for this office to raise 

and discuss the propriety of the direct certification when it 

had not been raised in the opinion request. 

Since the courts have not ruled on your authority to 

accept certifications of nominations made by county conventions, your request makes it necessary to review the arguments which can be advanced In support of the two possible 

construotlons and to advise you on what course you should 

take in the present situation. 
Honorable Zollie Steakley, page 4 (WW-944) 

In opposition to the construction that the statute 

designates the Secretary of State as the officer to receive the certificate, it could be argued that certlfication of county nominations to the Secretary of State is incongruous with other provisions of the Election Code and there 

appears to be no reason why the Legislature should have intended to deviate from the pattern for requiring certification of county nominations to a county officer. In all other 

instances, the certlfioation is either to the county clerk 

or to the county judge. Certification of county nominations 

in primary eleations is made to the county clerk. Art. 13.25. 

A substitute nomination to fill a vacancy in a nomination is 

certified to the county judge. Art. 13.56. Nominations by 

parties without state organization, whether made by primary 

election or by convention, 

Art. 13.54. 

are certified to the county clerk. 

Applications of independent candidates are filed 

with the county judge. Art. 13.53. It is a settled rule of 

construction that a statute is to be construed in conjunction 

with other statutes in pari materia, and this rule of construction lends suppvment that the Legislature 

did not intend to route these county nominations through the 

Secretary of State. 

A possible argument in refutation of the contention 

that there would be no reason for routing the certifications 

through the Secretary of State is that the propriety of convention nominations depends on the adoption of that method 

of nomination by the state executive committee, whose decision is certified to the Secretary of State (Art. 13.46), 

and he would be the officer possessed of knowledge as to 

the method which the committee had chosen. On the other 

hand, it could be argued that if the Legislature intended 

to require certification to the Secretary of State, there 

would have been no reason for placin county nominations 

in a separate clause in Article 13.4 % , as this meaning could 

have been expressed more directly and clearly by making the 

statute read that "all nominations so made by a State, district, or county convention shall be certified by the chairman of the State, districtnor county committee of such party 

to the Secretary of State. 

It could also be urged in support of the second 

construction that, like Nature, the law abhors a vacuum, 

and that the statute should not be construed to leave a 

void if it can reasonably be construed otherwise. However, 

other instances can be pointed out where the Lagislature, 

apparently through oversight, failed to provide the method 

for certifying certain nominatlons,and it cannot be said 

with assurance that this is not another example of oversight. ~:~ 

For example, until the addition of the last sentence of Article 13.25 in 1951, there was no provision for certification 
Honorable Zollie Steakley, Page 5 (WW-944) 

of district nominations made in second primary elections, 

and there is still no express provision governing certification of county and precinct nominations made in the 

second primary, There is no statute providing how presldential elector candidates shall be certified. Prior to 

the addition of the last sentence of Article 1.03 In 1951, 

except for independent candidates (Art. 13.52) there was 

no provision directing the Secretary of State to certify 

to the county clerks the names of state and district candldates which had been certified to him. 

Against the construction that these county nomlnations are to be certified to the Secretary of State, It could 

be pointed out that Article 1.03 makes no mention of county 

nominations in providing for certification by the Secretary 

of State to the county clerks. The provision which was added 

to Article 1.03 in 1951 reads as follows: 

" l l l The Secretary of State shall at the 

seme time ,@at he is required to furnish forms 

of election blanks to each county judgg certify 

to each county clerk a list of all the candidates 

who have been nominated for state office and for 

district office where the district consists of 

more than one county, if said distriat nominees 

have not been certified directly to the county 

clerk." 

Since this statute makes no mention whatever of 

county nominations, It could be argued that It evidences a 

legislative construction that the Election Code does not require certification of any county nominations to the Secretary of State. 

%Chere may still be a hiatus in Article 1.03 with respect 

to district offices in districts of only one county, inasmuch 

as Arts. 13.48 and 13.56 provide for certification of district 

nominations to the Secretary of State without excluding districts 

of only one county. Also cf. Arts. 13.50-13.52, relating to independent candidates. What effect the addition of this provision had on the method of making or certifying one-county district nominations, and conjecture on how it happened to be drafted in language omitting one-county districts, are outside the 

scope of this opinion. The significant fact for the purpose of 

this opinion is that the statute totally fails to mention county 

nominations, and it could be argued that this omission would not 

likely have occurred if the Legislature had intended that nominations by county conventions were to be certified to the Secretary of State. However, if it should be held that Art. 13.48 

does require certification of county nominations to him, it is 

his duty to certify the nominations to the proper county clerks 

though there is no express statutory provision for it. Seay v. 

Latham, 143 Tex. 1, 182 S.W.2d 251 (1944). 
. 

._ 

Honorable Zollle Steakley, page 6 (WW-944) 

The administrative construction which has been 

placed on a statute is of persuasive force in determining 

the meaning of a doubtful provision, and prior admlnistrative construction is of compelling force where the statute 

has been re-enacted without substantial change. "It is a 

very well-established rule there where a statute of doubtful 

construction has been construed by executive officers of the 

State charged with its execution, and it has subsequently 

been re-enacted without substantial change of language, it 

will continue to receive the same construction.R Stanford v. 

Butler, 142 Tex. 692, 181 S.W. 269 

13.4 A 

1944). If we are correct 

in our conclusion that Article does not clearly require 

certification to the Secretary of State, and if it could be 

shown that the established administrative construction prior 

to 1951 was against that interpretation, it would follow that 

the statute should continue to receive the same construction 

after its re-enactment in 1951. 

You have informed us that records of certifications 

in the Secretary of State's office prior to 1931 are not 

available, but that you have examined the records from 1931 

through 1958 and have found no instance where the Secretary 

of State has received and acted on a certification of a county 

nomination. Of course, the fact that the Secretary of State 

has not received any such certificates does not of itself show 

that such nominations have been made and certified directly 

to the county clerk. While nominations for county offices by 

statewide parties not holding primaries has been the exception 

more often than the rule, it seems unlikely that they have 

been so sporadic that no pattern of administrative construction has been established. Three known instances of county 

nominations have been cited in this opinion (Couch v. Hill, 

Pulliam v. Trawalter, Att'y Qen. Op. V-1529, supra). However, we have no readily available means of obtaining information on the number of times that county conventions have nominated candidates, and in the absence of more evidence as to 

the number of such nominations we are unable to say that compelling weight should be given to prior administrative construction. 

If Article 13.48 fails to name the officer to whom 

county convention nominations are to be certified, it would 

be proper for the county chairman to make the certification 

to the officer named in other statutes regulating analogous 

nominations. Morris v. Mims, 224 S.W. 587 (Tex.Civ.App. 1920). 

That case held that where the statute prescribed no method 

by which a new party might make nominations, it had the right 

to pursue any reasonable method not prohibited by law, and 

the party having made nominations for state offices by one 

of the methods presoribed by statute for making nominations 
. 

I - 

Honorable Zollie Steakley, page 7 (WW-944) 

by pre-existing parties and having properly certified 

the nominations to the Searetary of State, it was his 

duty to certify the names of the candidates to the proper 

election officers to be placed on the official ballot as 

the nominees of the party. By like, reasoning, if Article 

13.48 does not specify the officer to whom county nominations are to be made, the county chairman may pursue the 

course prescribed In some other statute relating to county 

nominations. As previously noted, all other county nominations are certified either to the county judge or to the 

county clerk. Nominations which are certified to the county 

judge must in turn be certified by him to the county clerk, 

as the county clerk is the officer who posts the names of 

the nominees and orders their names placed on the ballot. 

Art. 13.32, Election Code. There is no apparent reason why 

a county convention nomination should be certified to the 

county judge. If Article 13.48 does not require certification to the Secretary of State, we are of the opinion that 

the nominations could be certified directly to the county 

clerk. 

After considering all the arguments, we are unable 

to state categorically that Article 13.48 does not require 

certification to the Secretary of State. We are equally 

unable to state that it does. Needless to say, neither 

your office nor our office has the final authority to construe the statute; that authority rests with the courts. 

'Ihe opinion you are seeking from us is not for the purpose 

of finally resolving the question but to obtain advice on 

what you should do In the present situation. As we have 

said, the uncertainty of the State's officers as to which 

of them has the authority to accept the certificate should 

not defeat the right of the nominees to have their names 

placed on the ballot. Where there has been no prior judicial construction, we believe that a court would order the 

names of the nominees placed on the ballot upon tender of 

the certificate in proper form and in due time to either 

the Secretary of State or the county clerk. Our advice is 

that, in the absenae of a judicial construction, you should 

accept the certificate tendered to you and in turn certify 

the names of the nominees to the County Clerk of Harris 

County. 

SUMMARY 

Article 13.48 of the Election Code is susceptible of two constructions, the first being that 

the statute does not specify to whom county convention nominations are to be certified and the 

second being that the nominations are to be certifled to the Secretary of State. If the first 
Honorable Zollie Steakley, page 8 (WW-944) 

construction is correct, the certification may 

be made to the county clerk. There having been 

no judicial interpretation of the statute, the 

Secretary of State should accept a certificate 

of nominations by a county convention which has 

been tendered to him and should in turn certify 

the nominees to the county clerk. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Assistant 

MKW:lJb:bh 

APPROVED: 

OPINION COMMITTEE 

W. V. Qeppert, Chairman 

J. C. Davis, Jr. 

Riley Eugene Fletoher 

Tom I. McFarling 

Leon F. Pesek 

REVIEWED FOR THE ATTORNEY 

GENERAL BY: 

Leonard Passmore