Honorable Harvey C. Hooscr, Jr. opinion NO. s-215 

County Attamey of Howard Comty 

Big Spring, Texas Re: Party candidates for the 

office of district clerk 

in the general election subsequent to the occurrence of 

Dear Mr. Hooser: a vacancy therein. 

Your request for an opinion reads in pert as follows: 

%e District Clerk of Howard &unty pmsed away 

Se@tember 9, lp%,'leaving a .vacancy after the Democratic Primaries and after the County Conventions. The 

office of District Clerk was not up for election this 

par. The Metriqt Judge properly appdnted a District 

Clerk until the next general electlon. 

%uestscm No. 1: Under the circumstances, can the 

Democratic Executive Colmnittee name and certify a Democratic nominee~for the office of District Clerk and have 

thenam? ofsuchnominee plncedupontbe officialballot 

for the General Eleotion to be held on Novembes 6, 19567 

"Question No. 2: If the neuw of a Democratic nominee 

cannot be printed on the officlalbellot, and regardless 

of whether or not one or more properly have their name 

,xrinted on the officialballotas an in&pex&ntcandidat.e, 

should the offlce of District Clerk, without the nam of a 

iuminee, ba printed on the official ballot under each politicalparty?" 

District clerks receloed a four-year term at the &mmralelection in 199 (Tex. Const. Art. XVI, Sec. 651, and consequently an electlca for the regular term is not being held this year. A vacancy In the 

office of district clerk is filled by appointmnt of t&e district jti~e 

until ths next general election, at which tims an electicm is held to fill 

the remainder of the unexpired term. Art. 1895, Vernon's Civil Statutes. 

The authority of perty executive comlttees to make nominations is 

containe& in Artdoles 6.04, 8.22, and 13.56 of Vernon's Texas Election Code. 

Article 8.22, authorlzlng the proper executive committee to choose a nominee 

where a deceased candidate in the first primary receives a mjorlty of tha 

votea, obviously has no applicatioPl here. Article 13.56 reads: 
Honorable Harvey C. Hooser, Jr., Page 2 (S-215) 

“A nominee may decline and annul his nomination 

by delivering to the officer with whom the certificate 

of his nomination is filed, ten (10) days before the 

election, if it be for a city office, and twenty (20) days. 

in other cases, a declaration in writing, signed by 

him before some officer authorized to take acknowledgments . Upon such declination (or in case of death of 

a nomine,e), the executive committee of a party, or a 

majority of them for the State, dtetrict or county, as 

the office to be nominated may require, may nominate 

a candidate to supply the vacancy by filing with the 

Secretary of State in the case of State or district officer, or with the county judge, in the case of county or 

prerinct officer, a certificate duly signed and acknowledged 

by them, setting forth the cause of the vacancy, the name 

of the new nominee, the office for which he was nominated 

and when and how he was nominated. NO executive committee shall ever have power of nomination, except where 

provided for by law.” 

Tbis article authorizes the county executive committee to name 

a substitute nominee for a county or pr~ecinct office where there is a 

vacancy in the nomination,~as distinguished from a vacancy in office. 

It does not authorize the exe,cutive committee to name an original nominee, either for a full term or fork an unexpired term, even though a 

vacancy fin .the office occurs ,too late for an original nomination to the 

unexpired term to be made fn the primary elections. Gilmore v. Waples, 

108 Tex,, 167, 18,8 S.W. 1037 (1916). ff a vacancy in office occurs in 

suffictent time for parsons to become candidates in the primary election, 

a party nomination for an unexpired term which is to be filled at the 

next general election may. be made at the primary. Cf. Kilday v. Germany, 

139 Tex. ~380, 163 S.W.2d 184 (1942). If the vacancy occurs too late for 

nomination in the primary, the party may supply a nominee by some other 

method agreeable to party usage and not prohibited by law. Brewster v. 

m 

232 S.W.Zd 678 (Tex. Civ. App. 1950); cf. WillLams v. Huntress, 

.2d 87 (Tex. Civ. AUP. 1954). In the event the nominee died or 

declined the nomination, Article 13156 would authorize the executive 

committee to name a substitute nominee, but it does not authorize an 

original nomination in any circumstances. 

Article 13.56 provides that -ao executive committee shall ever 

have power of nomination, except where provided for by law.” The only 

other provision authorizing an executive committee to make a nomination 

for the general election is found in the last paragraph of Article 6.04 of the 

Election Code, which provides: 

‘!If a state or .dfstrfct official who is serving a four (4) 

or a six (6) year term should die or resign on the even 

numbered year In which he is not a candidate, after the 
Honorable Harvey C. Hooser, Jr., Page 3 (S-215) 

filing date of the first primary election and before the 

printing of the ballot for the general election, the state 

committee for each political party in the case of state 

officers and the appropriate district committee for each 

political party in the case of dtstrict officers shall have 

the power to name a nominee for such posttlon and.to certify 

the name to the proper election board to have the name 

printed on the general election ballot. . . . ” 

This provision, which was added to the law in 1951, authorizes 

the state or district committee to make an original nomination for an 

unexpired term in a state or district office, but it does not confer any 

power of nomination on a county executive committee, or on any commitee to make a nomination for a county office. Ne think it is quite 

clear that the offlce of district clerk Is classified as a county off&e, both 

under the laws relating to elections and under the laws generally. Tex. 

Const., Art. V. Set: 24; Duclos v. Harrts County, 291 S.W. 611 (Tex.Civ. 

App. 1927); Opinions of the Attorney General, Vol. 371, p.‘805 (1936); 

Att’y Gen. Op. V-329 (1947). 

It is suggested that the phrase ‘state or district official” in 

Article 6.04 should.be extended to tnclude county and precinct officials, 

whose terms have now been increased to four years by the constitutional 

amendment adopted in 1954. It might be argued that there appears to be 

no reason for making a distinction between state and district offices on 

~the one hand and county and precinct offices on the other hand, and that the 

legLs.latlve intent in enacting the amendment to Article 6.04 was to provide 

for nomtnations in all offices having terms of four or six years. In 1951 

.the office of county superintendent of public instruction carried a term of 

four years, and yet we think it is evident that at the time this provislon 

was enacted it plainly excluded any construction which would have permttted a county executive committee to name an original nominee for a 

vacancy in that office. Is there any more basis for now extending the provision to cover nominations for unexpired terms in other county offices because of the subsequent increase in the length of their terms, on the theory 

that the legislative intent was to provide for filling nominations in all 

offtces carrying four-year terms 7 

We do not find any ambiguity or uncertainty in the language of 

Article 6.04 which would,admtt of a con.struction to include county offices. 

It is only where the wording of a statute gives rise to ambiguity, or the 

gramxnatical construction is doubtful, that courts can exercise power of 

controlltng the language to give effect to what they suppose to have been the 

real intention of the legislature. Where the language used in a statute is 

plain and unambiguous, subtle or forced constructions are not admissible 

’ to limit or extend the meaning of the language employed, so that where 

the words used have acquired a definite meaning in law they must be expounded 

accordingly and the courts cannot speculate upon the intention of the legislature. Fire Ass’n of Philadelphia v. Love, 101 Tex. 376, 108 S.W. 158 (1908); 
Honorable Harvey C. Hooser, Jr., Page 4 (S-215) 

Board of Insurance Com’rs v. Guardian Life Ins. Co., 142 Tex. 630, 

ISU S W td 906 (1 44). Sparks v. State, 76 1 ex. Grim. 263 174 S W. 351 

(1915). It is not tze d&y of the courts to supply omission; in theOlaw 

and a court cannot write into a statute something obvtously not contained 

therein under guise of statutory construction. Gilmore v. Waples, supra; 

Estes v. Terrell, 99 Tex. 622, 92 S.W. 407 (1903); Evans v. Terrell, 101 

Tex. 167, 105 S.W. 490 (1907); City of Fort Worth v. Westchester House, 

274 S.W.Zd 732 (Tex,Civ.App. 1934, error ref. n.r.e.). 

In the absence of specific amendment, a statute must be given the 

meaning which it had when enacted. Manry v. Robison, 122 Tex. 213, 56 

S.W.2d 438 (1932). A statement of the r&s applicable to the extension 

of the meaning of a statute to include new situations which lava arisen 

since iti enactment is found in 50 Am. Jur., Statutes, 8 237: 

-8 237. -- Application to New Cases, Conditions, and 

Subjects. --Since the words of a statute must be taken in 

tha sense in which they were understood at the time when 

the statute was enacted, and the statute must be construed 

as it was intended to be understood when it was passed, 

statutes are to be read in the light of attendant conditions 

at the time of their enactment. A new meaning may not be 

given~the words of an old statute in consequence of changed 

conditions. The fact that events probably not foreseen by 

the legislature have occurred does not permit the court to 

undertake to enact new law. Indeed, new things may arise, 

which are not regarded within the meaning of a statute, 

although they are within the terms thereof. It does not 

follow, when a newly invented or discovered thing is called 

by some familiar word, which comes nearest expressingthe 

new idea. that the thing so styled is really the thing formerly 

meant by the familiar word. -Of course, if the terms of the _ 

statute are not broad enough tsclude the new thing, if is not 

wlthln the statute. 

*On the other hand, the fact that a situation is new, 

or that a particular thing was not in existence, or was not 

invented, at the time of the enactment, does not preclude 

the application of the law thereto. The language of a statute 

may bs so broad, and its object so general, as to reach conditions, not coming into existence until a long time after its 

enactment. . . . * (Emphasle added.) 

If Article 6.04 had provided, for example, that the appropriate 

executive committee should have the power of nomination where a vacancy 

was created by the death or resignation of any official serving a term of 

four or six years, the fact that a county office did not carry a term of that 

length at the time of enactment would not prevent its inclusion upon subsewnt change in the term. But where the language of the statute is not 
Honorable Harvey C. Hooser, Jr., Page 5 (S-215) 

broad enough to include the office, the meaning of the statute cannot be 

extended to include the changed conditions. In those circumstances, 

correction must be through legislative action. In 50 Am. Jur., Statutes, 

g 307, It 1s said: 

” 

. . . The general rule that a statute is to be construed 

wlth reference to its manifest object does not apply where 

such object is defeated by the language of the statute. In 

this respect, lthas been declared that the purposes of a 

statute must be supposed by the courts to be satisfied and 

expressed by its words, and that where the meaning of the 

law is evident, arguments based upon unexpressed purposes of the legislation, or the mischiefs intended to be 

remedied, to justify searching for new terms and interpolating them into the statute, are futile. Where a law ts 

plain and unambiguous, responsibility for its failure to fulfil an expected object ought to be left to its leglslattve 

creators.” 

In the light of the foregoing authorities, your first question ts 

answered in the negative. 

Our understanding of your second question 1s that it relates 

merely to the form of the ballot at the general election to be held on 

November 6, 1956. We assume that the county election board has determined that the vacancy occurred in sufficient time for an election on that 

date to be valid and has concluded that the office should be listed on the 

ballot. It is settled that a person may be elected by write-in votes in the 

general election, and the fact that no name of a candidate for the office 

was printed on the ballot would not prevent election by means of wrltein votes where the office was properly subject to being filled at that 

election. Your question 1s whether the office should be listed under the 

party columns, as well as under the write-in column, where a party 

nomination has not been made. 

Article 6.05 of the Election Code provides in part: 

Y 

. . . The tickets of each political party shall be printed 

on one ballot, arranged side by slde in columns separated 

by a parallel rule. The space which shall contain the title 

of the office and the name of the candidate shall be of uniform style and type on said tickets. At the head of each 

ttcket shall be printed the name of the party. . . . 

“Where a party has not nominated a ful,l ticket, the title 

and name of those nominated shall be opposite the same 

office of the full ticket. In the write-in column the titles 

of the officers shall be printed in all blank spaces to correspond to a full ticket. . . . * 
Honorable Harvey C. Hooser, Jr., Page 6 (S-215) 

V.C.S.): 

Prior to 1951, the last-quoted paragraph read (Article 2980, 

YWhen a party has not nominated a full ticket, the titles 

of those nominated shall be in position opposite the same 

office in a full ticket, and the titles of the offices shall be 

printed in the corresponding positions in spaces where no 

nominations have been made. In the blank columns and 

independent columns, the titles of the offices shall be 

printed in all blank spaces to correspond with a full ticket.’ 

Formerly the title of the office was required to be printed in the 

party column where no nomination had been made, but it is now provided 

that the title and name of the nominee shall be opposite the same office 

of the full ticket, with no provision for listing the title in the party 

column where a nomination has not be,en made. We interpret the present 

wording to mean that the title of the office is not required to be printed 

:under a party columnwhere a party nomination has not been made; but 

.the write-tn column should list the titles of all offices to be voted on. 

The-purpose of the change probably was to simplify the ballot form and 

to facilitate the marking and counting of the ballots by eliminating unnecessary listing of titles where nominations had not been made. A 

voter.stUl has the privilege of voting for the candidate of his choice by 

writing the name of the candidate under the office in the write-in column. 

It has always been the design of the law that the names of all write-in 

candidates be written in the write-in column, regardless of whether they 

were members of a party having a column on the ballot. Art. 2981, V.C S.; 

Art. 6.06, Elertlon Code. Under the former law it was held that ballots 

having the name written ln under a party column should be counted for the 

candidate where the intent of the voter was clear, and lt is our opinion that 

the vote should also be counted if the voter wrote in both the tltle of the 

office and the name of the candidate under the party column, where his 

intent was clear. Moore v. Plott, 206 S.W. 958 (Tex.Civ.App. 1918). But 

in making up the ballot form the election board should now llst in the 

party cohunns only those offices for which a party nomination has been 

made. However, it is our opinion that this provision is directory and that 

the listing of an office under the party column where a nomination had not 

been made would not affect the validity of the election, and, further, that 

a write-in vote under the party column should be.counted where the intent 

of the voter is clear. 

As already observed, the title of the office should be printed under 

the write-in column on the ballot. Candidates may also run as independent 

or nonpartisan candidates. If anyone has complied with the requirements 

for becoming an independent candidate, the title of the office and the name 

of the independent candidate (or candidates) should be printed under the 

independent column; otherwise, the title of the office should n,ot be printed 

under that column. 

SUMMARY 

The county executive committee of a political party is 
Honorable Harvey C. Hooser, Jr., Page 7 (S-215) 

not authorized to name an original nominee for the unexpired 

term of a county office, even though the vacancy occurred 

too late for a nomination to be made in the primary election. 

The title of an office to be voted on at the general election should not be printed under the party column where no 

party nomination for the off&e has been made, but should be 

printed under the wrlte-in column. 

APPROVED: 

Jd,“,LFe;isI Jr. 

Yours very truly, 

JOHN BEN SHEPPERD 

Attorney General 

W. V. Geppert 

Reviewer 

Will D. Davis 

Special Reviewer 

Davis Grant 

First Assistant 

John Ben Shepperd 

Attorney General 

By MlE$LF4dLc . 

Assistant