AUIWXTN. T-s 78711 

September 10. 1974 

The Honorable Mark White 

Office of the Secretary of State 

Austin, Texas 

Opinion No, H- 396 

Re: Certification of political 

parties pursuant to Art. 

13.45, Subd. 2. Texas 

Dear Secretary White: Election Code. 

Subdivision 2 of Article 13.45 of the Texas Election Code. provides 

a means for (a) political parties whose nominee for governor in the last 

general election received less than 2 per cent of the total vote cast, or 

(b) a new party, or (c) a previously existing party that had no candidate 

for governor in the last election, to nominate candidates for state-wide 

and local elections by nomination at a convention. However, it requires 

as a condition to having the names of such candidates printed on the 

official ballot, that a list of the participants in the precinct conventions 

be filed with your office within 20 days after the party’s state convention. 

The list, to be filed by the temporary chairman of each precinct convention, must aggregate at least one per cent of the total votes cast for 

governor in the last preceding general election. If there are insufficient 

names on the precinct lists, they are to be supplemented by a petition 

requesting that the party’s name be printed on the ballot. 

The statute requires that: (1) the precinct list and the supplemental 

petition show the name, address and registration certificate number of 

each signer; (2) no person who voted that year in any primary or participated in any convention of any other party shell be eligible to sign: and 

(3) to each signer there must be administered an oath as to the facts. 

At the time you certify to the county clerks of the State the list of 

candidates to be on the general ballot, as required by Art. 1.03 of ‘the 

Election Code, you are required by Art. 13.45, Subd, 2, to certify the 

names of the parties subject to that subdivision which had complied with 

its requirements. 

p. 1853 
. 

The Honorable Mark White, page 2 (H-396) 

you have asked: 

1) May the Secretary of State adopt reasonable means 

to ascertain if those citizens signing petitions pursuant to Article 13.45, subd. 2, Vernon’s Texas 

Election Code are legally registered voters? 

2) May the Secrets.ry of State utilize methods of statistical sampling to ascertain if those citizens signing the 

” petitions pursuant to Art. 13.45, subd. 2 are legally 

registered voters? 

It is now.well established in our law that the’officer charged with cerr 

tifying the petition performs a judicial and not a ministerial function. City 

of El Paso v. Tuck, 282 S. W. 2d 764 (Tex. Civ. App., El Paso 1955, writ 

ref’d., n. r. e.) cert.den., 352 U.S. 828 . 

Such officer may adopt any means he believes to be right and proper to 

ascertain the qualifications of those signing the petition and his decision 

will not be disturbed in the absence of fraud or arbitrariness. Akers v. 

Remington, 115 S. W. 2d 714 (Tax. Civ. App., Fort Worth 1938, writ dism. ); 

City of El~Paso v. Tuck, supra; Attorney General Opinions O-488 (1939); 

O-7218 (1946); C-263 (1964); H-199 (1974). 

We therefore answer your first question in the affirmative. As Secretary 

of State, you not only may, but you must, adopt reasonable means to ascertain 

if those who sign petitions required by Subdivision 2 of Article 13.45 of the 

Texas Election Code are legally registered voters. 

What are reasonable means may vary according to the circumstances. 

Whether statistical sampling will satisfy the requirement will depend upon 

your satisfaction that an actual examination of each signature is impossible 

and that the sample is sufficiently large and is chosen in such a way that it 

will reflect the status of all signers within a close degree of reliability. No 

particular petition or sampling method is before us. and we have neither 

the facts nor the expertise to determine whether a specific sampling method 

in a specific instance is proper. 

p. 1854 
The Honorable Mark White, page 3 (H-396) 

We therefore answer your second question that, although the normal 

and preferred method would be an actual counting of the signatures, 

where circumstances indicate its necessity, you are not necessarily precluded from utilizing methods of statistical sampling to ascertain if 

those signing the petitions filed pursuant to Subdivision 2 of Article 13.45 

of the Election Code ar~e, in fact,legally registered voters. 

~SUMMARY 

The Secretary of State, in determining whether 

persons signing petitions pursuant to Subdivision 2 

of Article 13.45 of the Election Code are legally 

registered voters, may adopt such reasonable means 

as he feels will be right and proper. In some’circumstances the use of statistical sampling may be 

permissible. 

Very truly yours, 

Attorney General of Texas 

APPFoYED: 

,,(, i 3 

I 1 

LA.& . wT YO K> Firs Assistant 

---. 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1855