### 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: OpinionNo.

### W-944

Re: Whethernominations made by the county conventionof a politicalparty which is not required to hold primary elections shouldbe certified to the Secretary of State
or to the county clerk,

Your request for an opinion reads as follows:

"TheConstitutionPartyhas tendered to this office the certificateof the Harris County Chairman of the Party'listing the candidates of said party for certain county offices in Harris County. The certificatewas tendered for the purpose of certificationby this office to the County Clerk of Harris County of such candidates for a place
on the general electionballot in Harris County.

"TheChairman stated In connectionwith his tender of the certificate that the County Clerk of Harris Countyhas refused to accept such certificate direotly to the county clerk and has taken the position that it Is the responsibilityof the Secretary of State to certify these candidates for county office under Article 

### 13.48of the Texas Election Code.

"Pleaseadvise Immediatelywhether 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 

### 13.46of the Election Code provides that the state committeeof a politicalparty which is not required tomake nominationby a primary election shall decidewhether the party will nominate state, district and county officersby convention or by primary elections, and shall certify their decision to the Secretary of State. Ifnominations are to be made by convention, the nominations for county offices are made by the county conventionsheld in accordancewith Article 

### 13.47.

Article 

### 13.48provides for certificationof the party's nominees in the following language:

"Ally nominations somade by a State or district convention shallbe certifiedby the ohalrman of the State or district committeeof such party to the Secretary of State and a nomination made by a county convention,by the chairman of the county committee."

This statuteas first enacted in 1905 as part of the Terre11 Election Law (Acts29th Leg., 1st C.S., Ch. 11, Sec. gg), read as follows:

"Allnominations so made by a State or district conventions shall be certifiedby the chalrman of the State or district committees of such parties to the Secretary of State, and nomlnationsmade by county conventionsby the chairman of the county committee.”

It was carried forward into the Revisionsof 1911 and 1925 exactly in its present form, except that in these revisions therewas a comma after "Secretaryof State".

The State Executive Committeeof the Constitution Party,which comeswithin these statutes,decided that the party's nominations for the 

### 1960general electionwere to be made by conventionand certified the deaision to the Secretary of State as requiredby Article 

### 13.46.

Unquestionably,a party whiah has compliedwith Articles 

### 13.46and 

### 13.47Is entitled to certify its nominees to some officer of the State, and the nominees are entitled to have theirnames placed on the ballot upon certification by the county chairman in proper form. Uncertainty of the State's administrativeofficers as to which of themhas authority to aocept the certificate shouldnot 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 nominationsmade 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 designationof 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 Pulliamv. Trawalter, 120 S.W.2d 108 (Tex.Civ.App.1938), are the only caseswe have found Involvinga oertificationof a nominationmade by a county conventionwhich was governed by Article 13.48. In the Couch case, the certificationhad been made directly to the county clerk. In Pulliamv. Trawalter, the opinion does not disclosewhether 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 certificatepassed through the Secretary of State's office. The question of whether the certificatehad been submitted to the proper officerwas not before the oourt in either of these oases, and the questionwas 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,authorityto pass on the validity of nominationswhiah had beenmade 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 opinionwas 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 clerkwould not be fatal to his authority to place the names of the nominees on the ballot and that it was thereforeunnecessary for this office to raise and discuss the propriety of the direct certificationwhen it had not been raised in the opinion request.

Since the courtshave not ruled on your authority to accept certificationsof nominationsmade by county conventions, your requestmakes it necessary to review the arguments which can be advanced In support of the two possible construotlonsand 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 countynominations to the Secretary of State is incongruouswith other provisions of the Election Code and there appears to be no reason why the Legislature shouldhave intended to deviate from the pattern for requiring certification of countynominations to a county officer. In all other instances, the certlfioation is either to the county clerk
or to the county judge. Certificationof county nominations in primary eleations ismade to the county clerk. Art. 13.25. A substitutenomination to fill a vacancy in a nomination is certified to the county judge. Art. 

### 13.56. Nominations by partieswithout state organization,whethermade by primary election or by convention, Art. 

### 13.54. are certified to the county clerk.

Applicationsof independentcandidates 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 countynominations through the Secretary of State.

A possible argument in refutationof the contention that there would be no reason for routing the certifications through the Secretary of State is that the propriety of conventionnominations depends on the adoption of thatmethod of nominationby 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 themethod which the committeehad 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 countynominations in a separate clause in Article 

### 13.4 %
, as thismeaning could have been expressedmore directly and clearlyby making the statute read that "allnominations somade by a State, district, or county convention shallbe certifiedby the chairman of the State, districtnor county committee of such party to the Secretary of State.

It could also be urged in supportof the second construction that, likeNature, the law abhors a vacuum, and that the statute shouldnot be construed to leave a void if it can reasonablybe construedotherwise. However, other instances can be pointed out where the Lagislature, apparently through oversight, failed to provide themethod for certifying certainnominatlons,and itcannot 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 certificationHonorable Zollie Steakley, Page 5 (WW-944)

of districtnominationsmade in secondprimary elections, and there is stillno expressprovision governing certification of county and precinct nominationsmade in the secondprimary, There is no statuteprovidinghow 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 candldateswhich had been certified tohim.

Against the construction that these countynomlnations are to be certified to the Secretary of State, It could be pointed out that Article 1.03makes no mention of county nominations in providing for certificationby the Secretary of State to the county clerks. The provisionwhich 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 electionblanks 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 distriatnominees have not been certified directly to the county clerk."

Since this statutemakes no mention whatever of countynominations, It could be argued that It evidences a legislative construction that the Election Code does not require certificationof any countynominations to the Secretary of State.

%Cheremay still be a hiatus in Article 1.03with respect to district offices in districts of only one county, inasmuch
as Arts. 13.48 and 13.56provide for certificationof 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 provisionhad on themethod of making or certifyingone-county districtnominations, and conjecture on how it happened to be drafted in language omitting one-county districts, are outside the scope of this opinion. The significantfact for the purpose of this opinion is that the statute totally fails to mention county nominations, and it could be argued that this omissionwould not likelyhave occurred if the Legislaturehad intended that nominations by county conventionswere to be certified to the Secretary of State. However, if it shouldbe held that Art. 

### 13.48 does require certificationof countynominations to him, it is his duty to certify the nominations to the proper county clerks though there is no express statutoryprovision for it. Seay v. Latham, 143 Tex. 1, 

### 182S.W.2d 

### 251 (1944).. ._

Honorable Zollle Steakley,page 6 (WW-944)

The administrative constructionwhich has been placed on a statute is of persuasive force in determining themeaning of a doubtfulprovision, and prior admlnistrative construction is of compelling force where the statute has been re-enactedwithout substantialchange. "It is a very well-establishedrule therewhere a statute of doubtful constructionhas been construedby executive officers of the State chargedwith its execution, and ithas subsequently been re-enactedwithout substantialchange of language, it will continue to receive the same construction.R Stanford v. Butler, 142 Tex. 692, 

### 181 S.W. 269 13.4 A1944). If we are correct in our conclusion that Article doesnot clearly require certificationto the Secretary of State, and if it could be shown that the establishedadministrativeconstructionprior to 1951was against that interpretation,itwould follow that the statute should continue to receive the same construction after its re-enactment in 1951.

You have informedus 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 instancewhere the Secretary of State has received and acted on a certificationof a county nomination. Of course, the fact that the Secretary of State has not received any such certificatesdoes not of itself show that suchnominationshave beenmade and certified directly to the county clerk. While nominations for county offices by statewidepartiesnot holding primarieshas been the exception
more often than the rule, it seemsunlikely that they have been so sporadic that no pattern of administrativeconstruction has been established. Three known instancesof county nominationshave been cited in this opinion (Couchv. Hill, Pulliamv. Trawalter,Att'y Qen. Op.V-1529, supra). However, we have no readily availablemeans of obtaining information on the number of times that county conventionshave nominated candidates,and in the absence of more evidence as to the number of such nominationswe are unable to say that compelling weight shouldbe given to prior administrativeconstruction.

If Article 13.48 fails to name the officer to whom county conventionnominations are to be certified, it would be proper for the county chairman tomake the certification to the officernamed in other statutes regulating analogous nominations. Morris v. Mims, 224 S.W. 

### 587 (Tex.Civ.App.1920). That case held thatwhere the statuteprescribed no method by which a new party might make nominations, it had the right to pursue any reasonablemethod not prohibitedby law, and the party having made nominations for state officesby one of themethods presoribedby statute for making nominations.

I -

Honorable Zollie Steakley,page 

### 7 (WW-944)

by pre-existingparties 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 

### 13.48does not specify the officer to whom countynominations are to be made, the county chairmanmay pursue the
course prescribed In some other statute relating to county nominations. As previouslynoted, all other countynominations are certified either to the county judge or to the county clerk. Nominationswhich are certified to the county judgemust in turn be certified by him to the county clerk,
as the county clerk is the officerwho posts the names of the nominees and orders their names placed on the ballot. Art. 13.32, Election Code. There is no apparent reasonwhy
a county conventionnomination should be certified to the county judge. If Article 

### 13.48does 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 consideringall the arguments,we are unable
to state categorically that Article 

### 13.48does 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 restswith the courts. 'Iheopinion you are seeking from us is not for the purpose of finally resolving the questionbut to obtain advice on what you shoulddo 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 tohave theirnames placed on the ballot. Where therehas 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 

### 13.48of 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 firstHonorable Zollie Steakley,page 

### 8 (WW-944)

construction is correct, the certificationmay be made to the county clerk. There having been
no judicial interpretationof the statute, the Secretary of State should accept a certificate of nominationsby a county conventionwhich 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