AUSTINILTEXAS 

October 3, 1952 

HOL R* c. Marshall 

County Attorney 

Hutchlason County 

stinnett. Texas 

, 

opinion 100, V-l?9 

Rer Authority of the county 

clerk to refuse to place 

on the general election 

ballot, party candidates 

selected at a county 

,convention which was recessed from time to time 

Dear Sir: 

for a month after the 

meeting date, 

Your request for an opinion of this offlae 

Is In substance as follows: 

“On September 10 1952, the county 

clerk received from the aounty chairman 

of the Republican Party a certificate 

dated September 8, 1952 

a 

nominating 

county and precinct can idates at a meeting certified as held on August 2, 1952. 

However the meeting of August 2 was rem 

cessed irom time to t>me until September 

5, on which date nominations were actually made. 

“May the county clerk legally refuse 

to order these nominations printed on the 

general eleotI,on ballot?” 

The nomination of candidates by the Republican Party for places on the 1952 general election ballot is governed by Sections 222 to 225 of the Texas 

Election Code (V.C.S. Election Code, Arts. 13.45--13.- 

481, which ertain to nominations by parties casting 

between 10, 8 00 and 200 COO votes for Governor at the 

preceding general eleo .c ion. Section 224 reads: 

“Mominatlons for district offices 

made by such parties shall be made by 

conventions held on the second Tuesday of 

August of the election year composed of 

delegates elected thereto a$ county 
Hon. R. C,. Marshall, page 2 (V-1529) 

conventions held on the same day herein 

prescribed for such county conventions 

of other parties all of which county conventions shall nominate candidates for 

county offices of such party.” 

By reference to Section 212 of the Election 

Code 

vent I 

which provides for the holding of county conons “on the first Saturday after primary election 

day of 1952 and each two years thereafter PI August 2 

was fixed by law as the date for holding the county 

conventions for nominating Republican candidates for 

county and precinct offices in the 1952 general election. 

Section 225 0r the Election code provides: 

~9U.l nominations so made by a State 

or district convention shall be certified 

by the chairman of the State or district 

committee of such party to the Secretary 

of State and a nomination made by a county 

convention, by the chairman of the county 

committee. ( 

Neither Section 225 nor any other provision 

in the election laws specifically states the time 

within which these nominations must be certified. We 

think they must be certified in time for the county 

clerk to comply with the posting requlremen~ts of Section 210 Election Code, but there is no clear authority for $ixing an earlier deadline for the filing of 

certificates of county and precinct nominations. Se ction 227 of the Election Code permits the filing of 

applications of independe,nt candidates up to 30 days 

after the second primary election. Since the certificate was filed before that date, we are of the opinion 

that there was a timely filing in the present case. 

Indeed, we do not understand that you have raised any 

question of the validity of the certificate on the 

ground that it was filed too late or on the ground 

that it was not filed. with the proper authority. Your 

question relates only to the, legality of making nominations at a meeting which had been recessed to a date 

later than August 2. 

The certificate filed with the county clerk 

recites that the convention was held on August 2. You 

do not state through what source the county clerk has, 

- 
Ron. R. C. Marshall, page 3 (V-1529) 

knowledge of the alleged facts with regard to the recessed sessions and the date on which nominations 

were actually made? but obviously this information Is 

from some source extraneous to the certificate itself. 

Therefore, the question Is presented as to whether 

the county clerk may resort to extraneous sources to 

determine whether the certified nominations have been 

lawfully made for the purpose of deciding whether 

the names of t he certified candidates should be placed 

on the general election ballot. 

Section 57 of the Election Code provides in 

part as r0ims: 

î l . l No name shall appear on the 

official ballot except that of a candidate 

who was actually nominated (either as a 

party nominee or as a nonpartisan or independent candidate) in accordance with the 

provisions of this Code. . . .‘I 

In Pulli m v. Trawalter 120 S.W.2d 108 (Tex. 

Civ.~pp. 1938) thz court held thit where a political 

party coming within the provisions of Sections 222 to 

225 of the Election Code did not select party nominees 

in compliance with those sections, the names of the 

nominees could not be placed on the ballot. In that 

case an opposing candidate filed a suit to restrain the 

placing of the name of the Republican nominee on the 

ballot, and the court decided from the evidence adduced 

at the trial that the nomination had not been lawfully 

made and certified. 

It is clear, then that if the nominations 

in the present case were no 4 made in compliance with 

Section 224 the nominees do not have the right to have 

their names placed on the ballot. Rut does the county 

clerk have the authority to decide an issue of illegality or irregularity in the nominations which is not 

raised on the fbce of the certificate? In other words, 

is the prohibition tobe enforced through the officials 

charged with the duty of making up the ballot, or must 

it be enforced solely through the courts? 

It might be plausibly argued that the officials with whom certificates of nomination are filed 

should have the authority to enforce this prohibition 

beoause the time between the date on which the certificate was filed and the date for making up the ballot 
Hon. R. C. Marshall, page 4 (V-l$Z9) - 

might be so short that a court action could not be 

prosecuted to final decision. However, this is an 

argument for saying that the power should exist 

rather than for saying that it actually does exist. 

Moreover, if the election officials are allowed to 

exercise the judicial function of passing on the 

legality of the nomination, certainly there should 

exist a right of appeal to the courts to review their 

action; and an insufficient time for prosecuting the 

appeal would produce similar argument against the 

grant of such authority,, 

It is generally held that, in the absence 

of a statute expressly conferring greater authority 

the acts of elections officials in receiving certiflcates of nomination and in making up the ballot are 

purely ministerial. The extent of their authority 

is summarized in 29 C.J.S., Elections, S 147, as follows: 

“Usually the officers or boards with 

whom declarations of candidacy, nomination 

certificates, petitions 

A 

or other nomination papers are require to be riled are 

authorized, as part of their ministerial 

duties, to pass on the form and sufficiency 

of the nomination papers as manifest from 

the papers themselves, but they have no authority to exercise judicial functions and 

decide controversies in regard to the regularity of the nomination nor determine 

other objections which go beyond the prima 

facie validity of the nomination papers, 

such as questions as to the qualifications 

of the signers of petitions or certificates, 

or the eligibility or qualification of candidates although as part of its ministerial du$y a board may examine the registration records to determine whether the signers are registered. under some statutes the 

filing official or other specified officials 

or boards are vested with certain judicial 

functions and accordingly they may determine 

on extrinsic evidence objections to nominations to acts and proceedings connected 

therewith, and to other matters pertaining 

to the conduct of an election, but only 

those protests or objections within the scope 

contemplated by the statute may be determined. II 

. . . 
Hon. R. C. Marshall, page 5 (V-1529) 

In 29: C.J.S., Elections, g 156, it is stated: 

u . . . In some jurisdictions a’ statutory duty is imposed upon officers with whom 

certificates 0r nomination are filed to certify to the officers charged with preparation 

and printing the ballots the arrangement and 

contents of the ballots. Such duty, where 

the certificates of nomination are valid on 

their face is ministerial, and the officers 

charged with the duty cannot justify a refusal 

to certify the nominations by setting up facts 

showing that they were not in fact properly 

made. . . .I’ 

And,29 C.J.S., Elections, I 162, says: 

l’Inasmuch as a certificate of nomination, 

valid on its face when filed with the proper 

officer is prima facie evidence of the facts 

which it recites,stated supra 3 135, and since 

statutory provisiol,s as to the preparation and 

distribution of the ballots must be strictly 

followed, as pointed out supra B 155, and the 

officer whose duty it is to prepare and have 

printed the official ballot acts In a purely 

ministerial~ capacity stated supra 0 155, he 

must place on the ba I lot ali names regularly 

certified to him as having been nominated, unless the refusal to do so is in obedience to 

a judgment of a court in a contest proceeding 

by a candidate opposing the person shown to 

have been nominated on the face of the returns, 

changing the result or declaring the certificate, if issued, void, or nullifying the nomination; but the officer must not proceed 

blindly but should satisfy himself as to the 

authority of the person certifying the nomination and the regularity or legality of the 

nominations. . . .“l 

In State ex rel. Plain V. Falle 8 N.D. 90 

76 M.W. 996 (1898) the secretary of statz’had refuse 

to certify to the bounty authorities for printing on 

A 

the official ballot the names of candidates which had 

1/ The authority cited for the last quoted statement is Couch v. Hill, 10 S.W.2d 170 (Tex. Civ.App. 

error aism. 1’. 

1928, 

This case is discussed at page 10, infra. 
Hon. R. C+ Marshall, page 6 (V-1529) 

been certified to him as nominees selected at a party 

convention. Among other things the secretary of 

state contended that the conven 4 ion had not been legally constituted. The court held that the secretary of 

state could not refuse to certify the names where the 

,certiflcate of nomination was regular on its face, saying : 

“Relators contend that . . . the duties 

of the secretary of state, in certifying 

nominations to county auditors, are ministerial purely; and that, If the certificates 

filed with him are fair on their face, he is 

without authority to look beyond or outside 

of the certificates. In this we think relators are clearly right and a few observations touching the statutes and their construction will disclose our reasons for thus 

holding. We remark first, that, If the 

secretary be clothe& with judicial functions 

to pass upon the legality of all nominations 

the certificates of which are filed with him, 

his determinations would be final, as certainly no provisions for appeal or review can 

be found in the statute, and the decisions of 

a special tribunal charged with the duty of 

deciding a special matter are always final, 

nnless the right of appeal be expressly given. 

Further if the secretary be clothed 

;iEh’judiclal hunctions in this matter, then 

the political policy of the state may often 

turn upon his decision. The power is great, 

and its exercise by an officer universally 

recognized as political in character would 

be dangerous however able and however honest 

the incumbeni might be. For these reasons we 

should expect to find the power, if conferred 

at all, conferred in no uncertain terms. And 

yet confessedly there is no express judicial 

authority conferred upon the secretary by the 

statute. At most it is an implied authority, 

and, if implied, ihe means and instrumentalities for its proper exercise are entirely 

wanting. He can conduct no formal judicial 

inquiry. He cannot coerce the production of 

persons or papers. He cannot enforce testlmony under the sanction of an oath. His most 

earnest effort would with equal facility elucidate or! suppress the truth. To imply authority 

- 
Hon. R. C. Marshall, page 7 

under such conditions, 

(V-1529) 

the implication 

must be practically Impossible of evasion. 

But so far is our statute from giving such 

implied authority that, in our view, it expressly withholds such authority. . . .@ 

The court held that the secretary of state could be enjoined from certifying the nominations if they had not 

been legally made, but went on to say: 

” . . Rut if no such restraining 

order be se&ed 14 is the duty of the secretary to certiiy all nominations proper 

certificates of which have been filed in 

his office. The law does not allow him to 

concern himself whether such nominations 

were or were not properly made, and when he, 

of his own volition, refuses to certify such 

nominations, and parties in interest bring 

proceedings to enforce the performance of 

such duty it is no answer upon his part to 

say that hacts exist which would have enabled the proper party, at the proper time 

and in the proper manner, to procure an order restraining him from certifying such 

nominations. No such order having been in 

faot obtained, the existence of the facts 

did not release his duty.” 

In State ex rel. C oo , Rlaisdell 17 N.D. 

575, 118 N.W. 225 (1908) thz siievcourt held Chat the 

secretary of state could’not refuse to certify the 

names of candidates who had been nominated by a certificate of nomination signed by individual voters which 

was regular on its face on the ground that some of the 

signers had participated in the nomination of other 

candidates for the same offices. The court said: “If 

other candidates or any qualified portion of the public 

desire to question the genuineness of the signatures, 

or the qualifications of the signers they have a right 

to do so, and the right to test the legality of nomina- 

“,;3.;,s devolves upon them, and not upon the Secretary of 

I, 

. 

In State ex rel. Rannev v. Corey 47 N.E.2a 

799 (Ohio App. 1940), an action was brought to restrain 

the county board of elections from placing the name of 

an allegedly ineligible candidate on the ballot. The 

court found that the candidate was ineligible and 
Hon. R. C. Marshall, page 8 (V-1529) 

granted the relief, but said: 

“No power is vested in the board of 

elections of a county, nor in the secretary 

of state,, to determine whether a person who 

files a declaration of candidacy for a primary election possesses the necessary qualifications of a candidate for such office, 

Se;, State ex rel. Hehr v. Beery et al., 

.,, 55 Ohio Appe 243, 9 N.E.2d 699. 

“And it is the duty of election offlcials to place the names of those whose 

petitions are in the prescribed form, properly attested and filed In accordance with 

the provisions of the statutes, upon a ballots to be used for voting at the primary 

election, unless prohibited by order of a 

court of competent jurisdiction.” 

State ex rel. Van Winkle v. Boser, 127 Ore. 

91. 271 Paa. 46 (1928). Involved the leealitv of nomlnations made by a nominating convention. The court 

denied the nominees a place on the ballot on the ground 

that the convention had not been legally constituted, 

but held that until restrained by court order it was the 

duty,of the secretary of state to certify the nomlnations, saying: 

” 0 0 0 The secretary of state had no 

authority to go behind the certificate. It 

was his duty to file the certificate and 

certify the ballot as he did. The secretary 

of state is a ministerial officer, and his 

authority is limited by the prima facie evldence afforded by the certificate.” 

The applicability of the general statements 

quoted from Corpus Juris Secundum and of the authorities we have cited depends, of course, upon whether the 

statutes of this State do or do not confer upon the 

county clerk an authority in excess of determiningðer 

the certificate Is regular on Its face. 

The statute directly relating to the duties of 

the county clerk is Section 210 of the Election Code, 

which reads: 

- 
_- 

Hon. R. C, Marshall, page 9 

“Each county clerk 

(v-1529) 

shall post In a 

. conspicuous plaoe in his offlee, for the 

lnspeetion of the public the names of all 

oandldates that have been lawfully certlf$.ed to him to be printed on the official 

ballot, for at least ten (10) days before 

he orders the same to be printed on said 

ballot; and he shall order all. the names 

of the aandldates so csrtlfied printed on 

the official ballet as otherwise provided 

in thla title.” 

The statement that the clerk shall post the 

names of candidates that have 

and shall, order the nameg 

been&&&J& certified 

printed on the 

ballot, and the provision , quoted earljer in this opinion whioh prohibits the printing of 

any names on the ballot except those of candidates 

nominated “In accordance with the provisions of this 

Code,” are the only statutes which might possibly be 

taken as conferring on this officer the power or impostng on him the duty to go behind the certificate 

and ascertain facts which might render it unlawful. 

We might observe here that we do not think the authority of the county clerk in determinlng the sufficiency 

of certificates for placing names on the ballot is any 

greater than the authority of the Seoretary of State 

in determining whether nominations filed with him 

should be certified to the county clerks, 

An analogous situation arises under the provisions of Section 6 of the Election Code, which reads: 

l’Nelther the Secretary of State nor 

any county judge of this State 

other authority authorized to Is% ~%Aficates, shall issue any certificates of 

election or appointment to any person 

elected or appointed to any office in this 

State, who Is not eligible to hold such 

office under the Constitution of this State 

and under the above Section; and the name 

of no InelIgIble person, under the Constitution and laws of this State shall be certified by any party committee, or any authority authorized 40 have the names of 

aandidates plaoed upon the primary ballots 

at any primary election in this State;- 
Hon. Ii. C. Marshall, page 10 (V-1529) . .' 

and the name of no-ineligible candidate 

under the Constitution and:,laws of this 

State shall be placed upon’ the ‘ballot of .’ 

any general or, special election by any 

authority whose duty it is to place names’ 

of candidates upon official billots.lJ,~.~’ 

v, Benavides,, 125 S.W.2&~1081, (Tex.Civ.App. 

error dism.)’ and,Beeler v. Looc4 ,135 s.W.2a 

Tex.Clv.App. 1940, error dism.). I{ ‘was stated 

that-the issuance of a*certificate.of election is a 

ministerial act. Because of the manner in which the 

question was raised in these cases; we~do not think 

they are nedessari~ly conclusive against ,the.authority 

of .the officer issuing the certificate to inquire 

into IneligIbilIty but they do suggest that he’has 

no autho~rity to ma e judicial determinations on questions of ellgibili!y . The same rule would be applicable to the ,placlng of names of ineligible candl- 

&;c;,on the ballot. ‘g. Att”y Gen. Op. o-2632 

b 

There is language, in co ch Hill’ 10 S.W. 

2d 170 (Tex.Civ.Ano. 1928. error %.sm’l;. whiih. taken 

alone, would support the biew that the- bounty &lerk 

,has the duty of determining from extraneous sources 

the legality of nominations certified to him. In that 

case, two groups of citizens held county conventions, 

each group claimings to be.the regularly and legally 

organized county convention of the Republican Party. 

One of the conventions nominated candidates for county 

offices. ,Delegates of the rival convention were recognized by the state convention, which certified Its action to the county clerk. Thereupon, he refused to 

place the nominees of the other convention on the hallot, and ~the nominees brought an action for a writ of 

mandatory Injunction against him to compel the placing 

of their names on the ballot. Th.e. Court of Civil Appeals, in upholding the trial court’s refusal of the 

writ, said: 

“Here there :webe two separate. county 

conventions, held on the same day for the 

s,ame purposes, each claiming to be and represent the RepubMcan Party in the county. 

In the very nature of the transaction, one 

of those conventions was regular, ,the other 

Irregular; one was the duly authorized, 

- 
Hon. Ft. C. Marshall, page 11 (V-1529) 

.-- 

constituted, organized and functioning 

Pepublican county convention, the other 

a mere mass meeting without authority to 

represent or bind the Republican Party 

or any of Its members. The acts of one 

were regular and effectual for the objeots 

and purposes of the meeting; the acts of 

the other were futile. The transaction 

const$tutsd a dispute between two factions, 

eaah pur 

regular ii 

ortlng to be and represent the 

epublican organiaation in that 

county. It was a controversy apparently 

wholly within the party. The two factions 

took their dispute to the highest party 

authority presented their respective contentions Co’that authority, produced evidence in support of their alaims, and invoked the judgment of that authority, 

which determined the controversy. We hold 

that that determlnatlon was final and concluslve upon the parties to the contest, 

and that no court has any authority to go 

behind the decision of the state committee 

for the purpose of meddling with a controz 

versy so wholly political in its nature.” 

It was there being held that the court itself could 

not overturn a politscal party’s sett&ement of an Internal party controversy. The party was the tribunal 

for deoldlng the cantroversy and the count 

was under a duty to accept iCs deoision. K 

clerk 

T e court 

also held that the petitioners were not entitled to 

the extraordinary relief sought by them unless they 

showed every fact necessary to entitle them to a place 

on the ballot and that they had not met this burden. 

These holdings were sufficient to dispose of 

the case. However, the court went further to say: 

“$0 is it contended by appellants 

that the duty of the count 

t 

clerk to publish appellantsT names as he nomlnees of 

the Republican Party for the offices they 

2/ Tt 14 usually held {hat where the officer receives certificates of nomination from rival conventions, It Is his duty to determine in the first instance 

which convention represents the party. 20 C.J.,ZL%- 

tions, 8 156, note 91; 18 Am. Jur,, Elections, g 137. 
Hon. R. C. Marshall,, page’~l2 (v-.1529), : 

seek, and t,o print those, .names on then officlal ballot, was. purely ministerial, in 

its .character; that the ~clerk is, clothed 

with no discretion in ~the ,matter; and that, 

upon receipt, of Ferguson’ s. certificate, 

the duty was absolutely mandatory upon the 

clerk to publish appellants’ names and 

place them on the official ballot. We overrule, this contention. The clerk! s duty 

is to publish the names in then certificate, 

and print them on the ballot, when those 

names are of ‘candidates who have received 

the necessary votes. to nominate’ them (article 3129) ,and when those names ‘have 

been lawfully certified to him’ (article 

3132). The, official :ballot ~shall contain 

the names of those only ‘whose nominations 

for an e.lectlve office have been dul made, 

and properly certifl,edl (article’297 t; ) 

and ‘no name shall appear on the official 

ballot except that of a,eandidate who was 

actually nominated * * * in accordance 

with the~provislons of this title’ (article 2978). In view .of ~these provisions, 

and as a practicable matter besides it Is 

clear that the county clerk must no E bllndly publish and,prlnt on the ballot every 

name certified to him as a party nominee, 

but must proceed cautiously, satisfying himself as to the authority .of the person certifying; and, when he Is made aware of facts 

or circumstances which cast reasonable ,doubt 

upon the authority of the one certifying, or 

upon the regularity or legality. of. the nomi* ,, 

nation of t.he persons whose names are, certifled to him, it becomes his duty to ascertain the true facts before he, performs the 

important duty prescribed for him In such 

cases.ll 

We seriously doubt that the ‘court would have 

recognized any authority inthe county clerk to refuse 

to place the names on the ballot if the state committee 

had not already acted. Furthermore, we doubt that any 

such authority would have been recognized if the ,alleged illegality had involved other, unresolved disputed 

fact puestlons. The court did not,,say~ how the county 

clerk should go about ascertaining’ ~the facts or. what authority he would’have for compelling.the production of 

- 

-. 
Hon. R. C. Warshall, page 13 (V-1529) 

evidence. What means does he have for arriving at 

the “true facts”? Where would the line be drawn 

between the $ssues he could resolve and the issues 

he could not resolve? In view of the obvious obstacles to his exerclslng full authority to determine 

legality in all cases could the court have meant to 

t,o19;Ft he Is, to act in a quasi-judlclal capacity 

We are of the opinion that the case cannot 

be taken as holding more than this: ;Jhere the county 

clerk does refuse to print the name of a candidate on 

the ballot, a court will not compel him to do so unless the candidate shows that he has been legally nominated. The denial of relief results not from the 

clerk’s authority to exercise quasi-judicial powers 

~;~a~om the lack of a remedy on the part of the can- 

. This was the effeat of the holding: ‘in Westernd 

_~ 

. 111 Tex. 29 227 &WI 178 (1921-.. T 

!!i!! %a%% in Atfly Gin, Op. O-2712 (1940 1 that 

the officer receiving the appllaetlon of an independent candidate who had participated In a primary election has the ?discretion I1 to decide whether he will 

acaept the application actually means that he has an 

anomalous arbitrar power arising from the lack of a 

remedy to prevent 3: ts exeraise rather than that he 

has been tnvested by law with a discretion in the matter. 

Upon consideration of the provisions In our 

statutes and the authorit$es we have cited, it is our 

opinion that the county clerk does act in a mlnlsterial capacity In rscelving certificates of nomination 

and in placing the names of nominees on the official 

ballot. We think the reasoning in State ex rel. Plaa 

* 

, BUPEJ~, pointing out the officer 1 s lack of 

means any instrumentalities for the exercise of judicial or quasi-judicial power in passing on the legality 

of nominations, is especially pertinent. However, we 

cannot agree that, under the Texas decisions, an officer 

who has refused to act on certif¶.catii’.,:s could not interpose defenses in support of his action in a mandamus suit. Under the holdings in this State that a person seeking the extraordinary remedy of mandamus or 

mandatory Injunction must show himself clearly entitled 

to the relief it would appear that a candidate who has 

not been lega i ly nominated could not maintain the action 

and that the facts dlsquallfylng him from maintaining 

the suit could be raised by the respondent. Westerman 

v. Ml@& &QJ&J COUCyl v. uib3,, g&g$. 
Hon. R. C. Marshall,. page ,I4 (Vyl529) 

-. 

The county clerk acts In a ministerial 

capacity in receiving certificates of nomination and in placing names of nominees on 

the general ,election ballot. Where a certlficate is ,regular on its face, he does not 

have the duty or authority to determine questions of Irregularity or Illegality in the 

nomination which would depend upon an ~ascertainment and determination of extraneous 

facts. 

Yours very truly, 

APPROVED: 

E. Jacobson 

-PRICE DARIE& 

Attorney General 

.Reviewlng Assistant 

Charles D. Mathews 

First Assistant 

MKW:wb 

By ~?-f K M 

Mary K. Wall 

Assistant. 

-.