-. 

Hon&rabls 0. A. Walters 

County Attorney 

San~Sah county 

Sansabp, Texas 

Dear sir: Opinion NC, O-2632-A 

Re: Demoorafio wminse for offioe 

of county attorney--ineligible 

candidate receiving majority of 

votes 0 art 0 

This will aokn-ledge receipt of your letter of August 23, 1940, rsquesting'a‘~supplement to Opinion ND. O-2632 with respect to whether or not the present incumbent should bs osrtifisd as the Demooratic nominee for the offioe of 

'County Attorney. 

The faots are that two men were oandidates for the Democratio nomination 

for the offioe of county attorney. An ineligible oandidate reoeived a majority 

of the votes east and the inoumbent received the second largest number. 

III Allen VS. FIshor, 118 Tax. 38, 9 S.W. (2dl Y31, three men inoluding 

the incumbent were candidates for the office of di&ri& attorney. The candidate receiving the largest number of votes was ineligible for the office and the 

second high man. the inoumbant, deemed himself the nominee. ,Howwe~ the aourt 

said: 

'Qdsr the provisions of Article 3102 of the statutes, no wndidate for the 

ofxice of distzict attorney is entitled to have his name go on the offfoial 

Iallot at the general election in November, as the nominee of the Demooratic 

party, unless, in the primary election held by that party, he ~eoeives a 

majority of the votes Cast for all the candidates for said nomination. The 

allegations of the plaintiff's petition show that the plaintiff, as candidata 

for the nomination for distriot attorney, did not receive suoh a majori* in 

either the July or the August primary eleotione Regardless, therefore, of 

whether Braly is eligible or not, the plaintiff oannot be declared the Demooratic nominee for that office. For, notwithstanding a candidate be insligible to the offioe he seeks, and thereby disqualified to be nominated therefar, 

and in known by the voters tobe so, the votes cast for hii iust be taken into 

account in detennlning whether or not his opponent has received a ma osity of 

the votes east. MoCrary on Eleotions (4th Ed.) 8 3306 20 C-Jo P* 20 ;I s and 

authorities oited in footnote 43." 
Hon. G. A. Walters, page 2 (O-2632-A) 

It is clear that under the case of Allen vs. Fisher, supra, votes 

east for an ineligible oandidate must be considered in determining whether 

or not an eligible one has received a majority. You are therefore respsctfully advised th& it is the opinion of this department that under the 

faots given in your latter the present incumbent is not the Democratic 

nomlnse for the office of county attorney. 

For your information'the correot citation for the ease of Callaghan 

vse Tobin, is 40 Tex. Civ. App. 441, 90 S.% 328, For your further information in Opinion No. O-2632 we cited a previous opinion by this department, 

Noo 2285. This opinion request was withdrawn prior to the issuanoe of the 

opinion. Opinion No0 O-2632 will supplant No. O-2286 as authority for the 

holding therein. 

Very truly yours 

ATl'ORNEYGENERALOFTEXAS 

APPROVED AUG 31, 1940 

/a/ GROVER SELLERS 

FIRST ASSISTANT 

ATTORNEY GENERAL 

SDS:dbregm 

By /s/James Do Smullen 

James D. Smullan 

Assistant 

APPROVED 

Opinion Canmittee 

ByBWB 

Chairman