EA NEY GENERAL

Honorable John Connally OpinionNo. c-217 Governor of Texaae Austin, Texas Re: Procedure for nomination of candidate for Associate Justice of the Court of CivilAppeals, Ninth Supreme JudicialDistrict, under the Dear Governor Connally: stated facts.

Your request for an opinion on the above-captioned matter reads a8 follows:

"Theuntimely death on February 7, 1964, of the HonorableW. T. McNelll,Associate Justice of the Court of Civil Appeals far the Ninth Supreme JudicialDistrict, haa created
some confusionwith respect to the May, 1964, primaries.

"At the time of his death, Judge McNeil1
was completinga six-year termwhich was to expire on December 31, 1964. Prior to the February 3, 1964, filing deadline, Judge McNeil1 made applicationpursuant to Article 13.12 of the Texas Election Code with the State Democratic Executive Committee for that party's nomination for the new six-year term
on the Court beginning January 1, 1965. No other candidates filed for this office prior to the filing deadline.

"Article8.22 of Vernon's Texas Election Code provides: 'Ifa candidate In the first primary dies after the deadline for filing, his name shallbe printed on the firstprimary ballot and the votes cast for him shallbe counted and returned for him. If such a deceased candidatereceives a majority of the votes, the proper executive committee shall choose a nominee and certify such name to the proper officer 233 of thisCode Texas Election t as provided in Section Stlcle 13.56, Vernon15 Co fl, ~to.bepointed on the general election ballot.'

-1043-Hon. John Connally,page 2 (C-217)

"NumberedParagraph 2 of Article 13.12 of the Election Code provides: 'Theappllcation shallbe filedwith the state chalrman In the case of state-wideoffices,with the county chairman of each county composing the district In the case of district offices in districts consistingof more than one county, and With the county chairman of the particular county in the case of countyand precinct offices and district offices in districts consistingof only one county or part of one county;provided,honever, that applications of candidates for Justice of the Court of CivilAppeals shall be filedwith the state chairman. The application shallbe filednot later than the first Monday in Februarypreceding suchprimary;provided,however, that In the event there is no candidate for the nomination of any office due to the death f the one who has filed, applicationsmay hoefil d not later than the first Monday in Marzh preceding the primary. * * *I LEmphasls suppliedd

"In light of the death of Judge McNelll, the following questionsare presented:

"Is the Democraticparty required to IncludeW. T. McNelll's name on its May primary ballot for this office under Article 8.22 of the Election Code; or does Article 13.12 of the Election Code require the State Democratic Chairman to accept additional application8 for hi8 party's nomination for this office until the first Monday in March?

"Iwould aplreclateyour opinion on these questions.

If the proviso In paragraph 2 of Article 13.12 of the Election Code only applies in those Instanceswhere the only candidatedies before the original deadline for filing, then Judge McNelll'sname shouldbe printed on the ballot in accordancewith provision8of Article 8.22 of the Election Code. The resultwould be either that the district executive committeewould make the nomination or that a write-in candidatewould become the nominee. On the other hand, if the death of the only filed candidate between the first Monday in February and the first Monday

-1044-Hon. John Connally,page 3 (C-217 )

In March produces an extension of the filing deadline, Judge McNefllfsname would not be printed on the ballot and the nominationwould be made in accordancewith normal primary voting rules,

The generalpolicy expressed fn the Texas Election Code is to require thatpartieswhich cast 200,000 or more votes for Governor in the preceding general electionmust make thefr nomfnationsby primary election except In special circumstanceswhere thfs method of nomfnation is not feasible. (Arts,6,01 and 13.02.) In keepingwfth this policy, it is also the general polfcy to l%m%t the nomfnatingauthority of party execut%ve committees,and to grant the authority only in unusual sftuatfonswhere nomfnation cannotbe made by primary electfon, 1037 (1916). Gflmore v, Waples, 108 Tex, 167, 188 S.W.~~

Nomfnatfonby an executfve commfttee is authorized only where the nomineedies or declfnes the nomination (Art. 13.56), where a vacancy in office arfses too late for nomination of a candfdate for the unexpired term by normal primary procedures (Art, 6,04, prior to amendment In 1953; Art. 13.12a, added in 1953), or where a deceased candfdate's
name is printed on the pr%mary ballot and the deceased candldate receivesa major%ty of the votes (Art. 8.22), The 58th Legislature in 1963 re-emphasfzed the policy to require nomination fn the prfmarywhen ft rewrote former provisions of Artfcle 6.011whfch authorized state and district executive committees to name a nomfnee for an unexpired term where the vacancy in office occurred after the regular filing deadline for the primary, The law, now contained in Article 13.12a, provfdes for nomfnation fn the pr%mary ff the vacancy occurs at any tfme up to 30 days before the date of the pr%mary.

We belfeve ft may be safdwithout contradiction that nom%nat%onby wr%te-fn votes in raceswhere there Is no filed candfdateasname printed on the ballot fs generally
an unsatfsfactorymethod for selectfnga nomfnee. The leglslative attftude toward thfs method of nomfnationwas expressed in an amendment to Artfcle 13.09:of the Election Code in 1963, which provfdes as follows: "If for any office, other than the party office of county chafrman or precfnct chafrman, there fs no candidatewhose name fs to be prfnted on the general primary ballot, the tftle of the offfce shall not be printed
on the ballot and no write-fn vote for such offfce shall be counted,"

We also belfeve that no one wfll dispute the undesirabilfty of placfng a deceased personSs name on the ballot unless good and suff%c%ent reason exfsts for doing so. The justfficatfonfor it is to provfde voterswith means for preventing the nomfnatfon of some other candfdatewho would beHon. John Connally,page 4 (C-217 )

unacceptable to them. Provisions for placing a deceased candidate’sname on the ballot take cognizanceof the fact that the deceased candidatemay have had strong popular supportand his candidacymay have deterred other capable, acceptablepersons from becoming candidates,and also take cognizance of the difficulty of organizingand consolidating support for a write-in candidate.

A general principle of statutory construction is thatwhere a provision is susceptibleof differentmeanings, that construction shouldbe favoredwhich more nearly accords with the spiritand policy of the law,

With these general principlesand pol%cles in mind,
we turn to a considerationof themeaning of the proviso of Article 13.12 in the sentence reading:

’ * * *The appl%cat%on shallbe filed not later than the first Monday in February preceding such primary;provided,however, that in the event there is no candidate for the nomination of any office due to the death of the one who had filed, applications may be filed not later than the firstMonday in March preceding the primary. * * *‘I

We believe the most reasonable constructionof this provision is that the filing deadline Is extended if the only filed candidatedies eitherbefore or after the regulardeadline. If the statutehad provided for extension of the deadline In the event the filed candidatediedwithin a specified time before the regulardeadline (e.g., less than five days before the first Monday in February), our conclusionmight be different. But the statute does not make a time restriction. It is not unusual for candidates to file as early as the firstweek in Januarypreceding the primary. Suppose a candidatehad filed

on January 5, and had died on January 10, leavinga period of threeweeks OP more in which other candidatesmight have filed but none did. Is there any more reason for extending the deadline in .thbse- -frcumstances than, where.the only.filed : candidatedies within a week after the regulardeadline? To the contrary, there Is far more reason to open the filing where the death occurs after the original deadline. The present fact situation forcefullydemonstrates the truth of this assertion. Undoubtedly Judge McNelll’s acceptability to the voters of his district accounted for lack of opposition for the Democraticnomination. If he had not been a candidate, it fairly may be assumed that other candidateswould have filed for the office. If his death had occurred at a timewhen other candidateswould have had a reasonable opportunity to file

-1046-**Hon.** John Conaally,page 5 (c-2i7 **)**

before the February 3rd deadline, therewould have been no real necessity for extending the deadline. His death having occurred after that deadllne,no other candidatemay file for the office unless his death puts the prbvlso Into operation. If his death does not have that effect, his name will appear on the primaryballot as the only candldate for the office and the resultwill be to force nomination In one or the other of two manners--nominationby an executive committee
or nomination from write-in candidates only--neitherof which comportswith the generalpolicy of the law,

There has been no court decision settling the question of whether the death of the only filed candidateafter the originaldeadlinewill cause an extension of the filingperiod. In Meyers v. Smith, 314 S.W.2d 631 (Tex.Clv.App.1958),a district judgewhose term expired on December 31, 1960,died
on Sunday, June 1, 1958. At that time, the normal deadline under Article 13.12was the first Monday In May, and the extended deadlinewas the first Monday In June,which in 1958 fell on June 2. On Monday, June 2, two candidates filed for the unexpired term; In a mandamua action brought by these candidates to compel the county executive committee to place their names on the primaryballot,,the Court of Civil Appeals held that Article 13.12 does not apply to a nomlnatlon for an unexpired termwhere the vacancy in office occurs after the regular filing deadline,without Intimatingwhether the proviso would or would not have become operative if the nominationhad been governed by Article 13.12.

It is our opinion that Judge McNelll's death brought the proviso of Artlcle';l3.12 into operation,and candltiates for the Democratic nominationmay file for the office through the date of March 2. It is also our opinion thatArticle 8.22 will not apply, and that JudgeMcNeill's name should not be printed on the prlmarylballot. This article provides that a deceased candidate'sname shallbe printed on the first primary ballot If he dies "after the deadline for filing." If there Is
more than one filed candidate for the office, the death of one candidate occurring eitherbefore or after the original deadline does not cause an extension of the filingperiod, but if one of the candidate8dies after the deadline,his name is printed

on the ballot along with the names of the living candidates. This ap arently was the situation in Wllley v. Fennell, 269 S.W.2d E07 (Tex.Civ.App.195&),which Is the only reported
case decided under the provision In Article 8.22 relating to death of a candidate in the first primary. But where by
reason of the proviso In Article 13.12 the filing deadline is extended,we interpret the "deadlinefor filing" referred to InArticle 8.22 to be the extendeddeadline.

**-1047-**-

Hon. John Connally, page 6 (C-217 )

SUMMARY

Where filing for a place on the primaryballot is governedby Article 13.12 of the Election Code and the only personwho has filed for a particular office dies after the regular filing deadline of the first Monday in February but before the first Monday In March, the filing deadllne for that office is extended to the first Monday in March. In such event, the deceased candidate'sname is not placed
on the ballot under the provisions of Article 8.22 of the Election Codewhich pertain to death of a candidate In the first primary after the deadline for filing.

Yours very truly,

WAGGONER CARR Attorney General

,2@~50Qwfiry Wall Assist&t
MKw:sj

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman H. Grady Chandler Joe Long V. F. Taylos

APPROVED FOR THEATTORNEY GENERAL BY: Stanton Stone

-1048-