### AUIWXTN. T-s 78711
September 10. 1974
The Honorable Mark White Office of the Secretary ofState Austin, Texas Opinion No, H- 396
**Re:** Certification ofpolitical parties pursuant toArt. 13.45, Subd. 2. Texas Dear Secretary White: Election Code. Subdivision 2 ofArticle 13.45 ofthe Texas Election Code. provides ameans for (a) political parties whose nominee for governor in the last general election received less than 2per cent ofthe total vote cast, or (b) a newparty, or (c) apreviously existing party that had no candidate for governor inthe 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 onthe official ballot, that alist ofthe 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 ofeach precinct convention, must aggregate at least one per cent ofthe total votes cast for governor in the last preceding general election. Ifthere are insufficient names onthe precinct lists, they are to be supplemented by apetition requesting that the party’s name be printed onthe 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) noperson who voted that year in any primary or participated in any convention ofany 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 ofthe State the list of candidates to be onthe 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 ofthe 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 ofState adopt reasonable means to ascertain if those citizens signing petitions pursuant toArticle 13.45, subd. 2, Vernon’s Texas Election Code are legally registered voters? 2) May the Secrets.ry ofState utilize methods of statistical sampling to ascertain if those citizens signing the ” petitions pursuant to Art. 13.45, subd. 2are legally registered voters? Itis now.well established in our law that the’officer charged with cerr tifying the petition performs ajudicial and notaministerial function. City ofEl 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 ofthose signing the petition andhis decision will not be disturbed inthe absence offraud or arbitrariness. Akers v. Remington, 115S.W. 2d 714 **(Tax.** Civ. App., **Fort** Worth 1938, writ dism. ); City ofEl~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 ofState, you not only may, but you must, adopt reasonable means to ascertain if those who sign petitions required by Subdivision 2ofArticle 13.45 ofthe 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 ofeach signature is impossible and that the sample is sufficiently large and is chosen in such away that it will reflect the status ofall signers within a close degree of reliability. No particular petition or sampling method is before us. andwe have neither the facts nor the expertise to determine whether a specific sampling method in a specific instance is proper. p. 1854The 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 ofthe 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 toSubdivision 2ofArticle 13.45 of the Election Code ar~e, infact,legally registered voters. ~SUMMARY The Secretary ofState, in determining whether persons signing petitions pursuant to Subdivision 2 ofArticle 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 3I 1 LA.& wT

. YO K> Firs Assistant

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DAVID M. KENDALL, Chairman Opinion Committee

p. 1855