THEA'ITORNEYGENERAL 

OF TEXAS 

I I 

WVILL WILSON 

*1TOWNEYG~NER*L August 

Hon. Raymond Ec Magee 

County Attorney 

Galveston County 

Galveston, ‘Pexas 

28, 1952 

Opinion No*, V-i513 

Re: Procedure ,to place, a nare 

on the ballot at the genera1 election as an-dependent candidate for a 

Dear Sir: preoinot effic4i0 

In your. r~eque st for an opinion you state that 

a, groups of Galveston County citizens have approached 

the County Jud 

candidate for & 

e with. 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 may have 

their names printed upon the official ball@ on application to the County Judge 

for a county office, or to the mayor If 

if 

tar a aity or towns office 

bring in the same form an A 

such appllcatlon 

subject to the 

same requirements herein prescribed for ap- 

.plicatlonr to be tide ,tethe Secretary of 

State in ease of State 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 then last general election endorsing. 

such candldatr for a partic& couuty o?* 

iice. And provided 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. Raymond E. Rages, page 2 (i-1513) 

. least thirty (30) days prior to the 

election day and by paying such~fillng 

fees as may be 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 

who mnst. stgn the applicati@n base.d en the 

total number ‘bf Votes 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 a mtv ofrice may have their names placed on the 

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 g of :&he names of indepepdeut candidates 

for precinct’ of f ices 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 237 were 

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. We must 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 w or 

;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 V of 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 11 clearly 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. We believe 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. As we have 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 28’7 Sew. 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 how 
Hoti, Bayamid IL Magee, Page 4 (V-1513) 

contest statute (Ant, 3041, II.0.S. 1925) included the 

office of school trustee, since ~a school 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 beg signed 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," we would 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 wee so 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 

When construed in conjunction with S.ection 

227 

cas E 

it becomes apparent that the term .,mentire~ vote 

" means the number of votes east byall factionr 

regardless of whether they were cast for regular par 4 .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 A th nti e OAAQ 

for an' office tz te fzll& by ihe 

If the nomination is 

voters of a pre'cinet 

of the county, we think 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. LA a', ,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 cent 

4 

or 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 a requirement 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 name placed on the ballot, or might ., 

BvaA~ prevent independent nomlnatlons altogether* 

Certainly the ,Legislature could not have, intended 

the latter result. We are also of the OP~A~OA that 

It had AO intention of,,requiriAg aA endorsement &ah 

would be, tantamount to a’ guaranty of election before 

a person. may become an IAdepeAdeAt candidate.’ 

*.” ‘.‘I < I 

We are informed that AomiAatioA of, in&- 

pendent candidates for county and~precindt officas 

is customary in some of the counties of this State. 

We have confirmatim of the practice followed IA c&y 

oAe of these counties. ‘,The County Attorney of Guad- 

.alupe County has advised us that candidates for&y 

office Including precinct offices, have run a,s lndependen c AOmiAeSS in that county for many years, aAd 

that the number of signaturesrequired for precinct 

candidates 1,s computed on the basis of the votes oa~rt 

in the precinct. .Thls ractical construction whlah 

has been given Section !! 30 lends snmort to the cork- -~~ 

elusions we have reached; Greenwoo?lmv, Cw 

&&%2v 186 S.W&I 1015 (TeX,ClV.App. 1945). 

Independent candidates for precinct 

offices may be 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. Raymond E* 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”uly pars, 

-PRICE DANIEL 

Attorney, General 

Assistant