### Honorable HarveyC.Hooscr,Jr. 

## opinion NO. 

## s-215 CountyAttamey ofHowardComty BigSpring,

Texas Re: Partycandidates forthe officeofdistrictclerk inthegeneralelectionsubsequenttotheoccurrence of DearMr.Hooser: avacancytherein.

Yourrequestforanopinionreadsinpertasfollows:
%e DistrictClerkofHoward&unty pmsed away Se@tember9,lp%,'leavinga .vacancy aftertheDemocraticPrimaries

andaftertheCountyConventions.The officeofDistrictClerkwasnotupforelectionthis par. 

### TheMetriqt Judgeproperly appdntedaDistrict Clerkuntilthenextgeneralelectlon.
%uestscmNo. 1: Underthecircumstances, canthe Democratic

Executive

Colmnittee

nameandcertifyaDemocraticnominee~for theofficeofDistrictClerkandhave thenam? ofsuchnominee plncedupontbe officialballot fortheGeneralEleotiontobeheldonNovembes

## 6,19567 "Question

No.

## 2: IftheneuwofaDemocratic nominee cannotbeprintedontheofficlalbellot, andregardless ofwhetherornotoneormoreproperly havetheirname ,xrintedontheofficialballotasan in&pex&ntcandidat.e, shouldtheofflceofDistrictClerk,withoutthenam ofa iuminee,

baprintedontheofficial ballotundereachpoliticalparty?"
Districtclerksreceloed a four-year

termatthe&mmralelectionin199 (Tex.Const.Art.XVI,Sec.

## 651,andconsequently anelectlcafortheregulartermisnotbeingheldthisyear. A

### vacancyInthe officeofdistrictclerkisfilledbyappointmntoft&edistrictjti~e untilthsnextgeneralelection, atwhichtimsanelecticmisheldtofill theremainder

oftheunexpired

term. Art.

## 1895,

Vernon'sCivilStatutes.
Theauthority

ofpertyexecutive comltteestomakenominations is containe&

inArtdoles

## 6.04,8.22,and

## 13.56 ofVernon's

TexasElectionCode. Article

## 8.22,

authorlzlng

theproper 

### executive committee

tochooseanominee whereadeceasedcandidateinthefirstprimaryreceivesamjorlty oftha votea,obviously

hasnoapplicatioPl 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 inwriting, 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 ofthem 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 forkan unexpired term, even though a vacancy fin.theoffice occurs ,too late for an original nomination to the unexpired term to be made fn the primary elections. Gilmore v. Waples, 108Tex,, 167, 18,8S.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, 163S.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 13156would 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 inthe last paragraph of Article 6.04 of the Election Code, which provides:

‘!Ifa 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 Inwhich he is not a candidate, after theHonorable 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 inthe 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 ~theone 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 aterm 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 ofthe subsequent increase in the length of their terms, onthe 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 inthe 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 1ex. 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 inwhich they were understood at the time when the statute was enacted, and the statute must be construed
as itwas intended to be understood when itwas 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 inthe term. But where the language of the statute is notHonorable 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 1ssaid:

”

. . . 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, tojustify 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 inthe negative.

Our understanding of your second question 1sthat 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 ofwrltein votes where the office was properly subject to being filled at that election. Your question 1swhether 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,enmade. 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 .thewrite-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 ofwhether 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 ofthe independent candidate (or candidates) should be printed under the independent column; otherwise, the title of the office should n,otbe printed under that column.
SUMMARY

The county executive committee of a political party isHonorable 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