## THEA'ITORNEYGENERAL OF TEXAS I I

WVILL WILSON *1TOWNEYG~NER*L August

Hon. RaymondEc Magee County Attorney Galveston County Galveston, ‘Pexas 

### 28,1952
Opinion No*,

### V-i513
Re: Procedure ,to place, a nare onthe ballot at the genera1 election as an-dependent candidate for a preoinot effic4i0 Dear Sir:
In your. r~equest for an opinion you state that a,groupsof Galveston County citizens have approached the County Jud candidate for &

ewith. regard to running an independent he position of justice of the peace in the forthcoming general election. In this connection, you have requested a construction of Section 230, Xexar Election Code~(V.C.S. Election, Code, Art. 

### 13.531, which **reads:**

“Independent candidates for office at. a county, city, or town election mayhave their names printed upon the official ball@ on application to the County Judge for a county office, or to the mayor Ifif

tar a aity or townsoffice bring in the same form anAsuch appllcatlon subject to the same requirements herein prescribed for ap- .plicatlonr to be tide ,tethe Secretary of State in ease ofState or district independent aomlnation~; provided, that in county elect,ions It shall be necessary for nomination of independent candidate’s for the independ,ent candidate to file a petition with the County Judge, signed by five per cent (5%) of the entire vote cast i,n,such county at thenlast general election endorsing. such candldatr 

# for

a partic& couuty o?* iice. Andprovided further, in eleatlonr for a city or town offLce it shall not be neoessary that independen 1 ” candidates be noabated but anyone otherwise qualified harr his name **printed Y** on the official

artlcula? off ce by flling ication with the Mayor at-- .- I

L Hon. RaymondE. Rages, page 2 

### (i-1513)

. least thirty (30) days prior to the

election day and by paying such~fillng fees as maybe required by Statute or by charter provision.”

. The questions which you have asked are: (1)’ Does Section 230 apply to preofnct ’offices? (2) If Section 230 does ap$ly to precinct, offices, is the percentage of voter8 whomnst. stgn the applicati@n base.d en the total number ‘bfVotes cagt in the~‘entire cdunty or enly on the number of votes &n that preainot?

, Section 230 does not expressly ‘mention precinct offices. It st.ates that independent candidates for amtv ofrice mayhave their names placed onthe ballot on application to the county judge, but it containsno other provision which might be construed to include ,,candidates for precinct offices. ,.We.must deteradne,‘whether .the Llgitilature thereby’ ititended to exclude the placi gof :&henames of indepepdeut candidates for precinct’ offices on the ballot or whether it intended to embrace them within the term “county office.”

-~ In Section 237 of the Election Code, the words

“county office” are defined to mean ‘Iany office to be
r’ filled by the ohoice of the voter8 residing in only one s (1) oounty or less than one (1) county.” This definition clearly includes precinct offices. However we are of the opinion that the definitions In Section 237were intended to apply only to the provisions relating to camfiaign expenditures found in Chapter 14 of the Election Code, of which Seotion 237 is a part. Wemust therefore .arrlve at the legislative intent in Section: 230 independontly of the d?flnition set out In Section 237.

Pr&ct office8 are mentiohed in numerous
‘jplaces throughout the Rlectlon Code, and generally the statutes’applicable to them specify them by that name. Rowever, the term usually appears in the phrase ncounty and precinct office,n euounty or precinct office wor ;zF$;Flar phrase linking these two claseifica&me.



### 25 118, 18.5, 190, 203, 204, 208, 231, 233. The elea~lon’procedures for these two type6 of offices
a’Hon. Raymond E. Magee, page 3 (V-1513)

are consistently identical: application for a place on the primary ballot Is filed in the same way; returns are canvassed and certificates of nomination :) and of election are issued in like manner. It is quite natural that county and precinct offices are-treated similarly, since precincts ‘are subdivisions -of the county and the precinct officers -- justices of the peace and constables as well as members of the commissioners~ court -- are under the general administrative jurisdiction.of the county. Section 24, Article Vof the Constitution, which provides for the removal of “county judges, county attorneys., clerks of the distrlct~ and county courts, justices of ‘the peace, constabPes, and other county officers 11clearly treats a justice of the peace as a county officer. ; i

Offices which ,&e filled at the general election are ordinarily classified as state, district, county and precinct. Webelieve the Legislature intended ; in Sections 227 and~‘230 to authorize nominations of independent candidates for all offices to be filled at the general election. Provision is made.for nominating candzdalics for,: state s$d ‘district’ offices ;in Section: 227. r. Although precinck eff$ce,s afe,@ot men’cfiodsd .by $h?t .hame in fiection 230 we ar’e of the.,opinion th,$t eluded within the ‘tern “county office” tihey,ere in: as used in that section. Aswehave pointed out, precinct and county offices are treated similarly throughout the election processes, and there is no apparent ~reaaon for excluding precinct offices ,in the nomination of independent candldates. Accordingly, your first question is answered in the affirmative.

the dictum in Hamil on v. Mollpoe 28’7Sew. 304 (Tex.Civ.

In makingtthis holding we are not unmindful of
~pp. 1926 error dism. 116 Tex. 153 287 S.W. 306) to the effect that the words “county oj!fices” in the Alection laws meant those to be filled by the electorate of the entire county* Since the court relied in part on the definition of Hcounty nomlnatlo~.” then contained in Article 3168, V,c.S. (now .Sectlon 237 of the Election Code) as being the nomination for any office to be filled by the choice of the voters residing in only one’county 96. understood howHoti,Bayamid IL Magee, Page 

### 4 (V-1513)

contest statute (Ant, 3041, II.0.S. 1925) included the office of school trustee, since ~aschool district is a subdivision of, the county,

In your s,econd question you ask how the percentage of voters who must s~lgn the application is to be determined. Section 230 provides that the application shall begsigned by five per cent of the entire vote cast In such county at the last general election. If it were not for the word "entire," wewould have no difficulty in concluding that this provision meant for a precinct nomination, five per cent of the VoCe cast in that particular preainct~ of the county. We think the purpo,se of requiring a minimum number of sig- '~ natures is to' show that there is a sufficient number of qualified voters supporting the nomination of the proposed candidate to justify granting him a place on the ballot. It would logically follow, and weeso hold that the persons signing the application for a precinc z nomination must be qualified voters of the preainct. Since the electors in only a portion of the county will be voting on a precinct office the same assurance of support for a precinct candidaEe,is gained from requiring endorsement by five per cent of the votes"cast ins. the precinct as from requiring five per cent of 'the en-, tire county vote for a candidate who is voted on by the electors of the county as a whole. It would be reasoA-~ able to conclude that the Legislature 'intended that the percentage of endorsements required for precinct nominees be computed on the basis of votes cast in the precinct s Whenconstrued in conjunction with S.ection 

### 227 casEit becomes apparent that the term .,mentire~ vote " means the number of votes east byall factionr regardless ofwhether they were cast for regular 4 par .y nominees independent candidates,AondAated by petition,, ,. or cand$ates whose Aataes were written in,: Thus it is seen that this, provision does 'not necessarily mean the vote cast Ath nti e OAAQ for an' office tz te fzll& by iheIf the nomination is voters of a pre'cinet of the county, wethink It, reqA$.res only that the appllcation be Signed by fiV0 Per eeAt of the entire vote cast in that-preoihct. -

There is another reason for giving ,the statute ,thiS construCtiOn. LAa',,COUAty.having eight justicei precinctr, :for esample 1 it Is possible that the number ‘of qualified electors **A** that precinct would be less than., . _

Hon. Ramnd E. Magea, page 5 (,%1513) ~“’

ten, ,per cent4or even lers than five per cent, of the vote ear in ‘the.o&Ire oouAty. ‘Sinca the &I.eetors slgnfng the application for a’preclnot candidate mist be residents of that ‘precinct arequirement that the application be signed by,#lve per cent of the entire county vote would’amQMt to a virtual assurance of election before the WiAdidate oould have his nameplaced onthe ballot, or might ., BvaA~ prevent independent nomlnatlons altogether* Certainly the ,Legislature could not have, intended the latter result. Weare also of the OP~A~OA that It had AOintention of,,requiriAg aAendorsement &ah would be,tantamount to a’guaranty of election before aperson. maybecome an IAdepeAdeAt candidate.’ *.”‘

.‘I < I Weare informed that AomiAatioA of,in&- pendent candidates for county and~precindt officas is customary in someof the counties of this State. Wehave confirmatim of the practice followed IAc&y oAeof these counties. ‘,TheCounty Attorney of Guad- .alupe County has advised us that candidates for&y office Including precinct offices, have run a,slndependencAOmiAeSSin that county for manyyears, aAd that the number of signaturesrequired for precinct candidates 1,scomputed onthe basis of the votes oa~rt in the precinct. .Thls ractical construction whlah has been given Section !!30lends snmort to the cork-

-~~ elusions wehave reached; Greenwoo?lmv, Cw &&%2v186 S.W&I 1015 (TeX,ClV.App. 1945).

Independent candidates for precinct offices maybe Aomlnated IA accardance with Section 230, Texas glection Code (V.C.S. section Code, Art. 13.53,). They are Included within the term “county office” as used in that section. The number of qualified voters who must sigA;;the application of an independ-’ ent candidate for a pr,eclnct office is five per cent of the entire vote cast IA ,HOA.RaymondE* tigee, page 6 (~1513)

that precinct at the last general elec- @on.,, ‘The signers must be qualified vd%iif$-of the- precinct,
APPROVED:
J. C. Davis County Affairs Divist.0~ E. Jacobson Reviewing Assistant
Charles D. Mathews First (rssistant
MKW:wb very tn”ulypars, -PRICE DANIEL Attorney, General

Assistant