EA NEY GENERAL 

Honorable John Connally Opinion No. c-217 

Governor of Texaae 

Austin, Texas Re: Procedure for nomination 

of candidate for Associate 

Justice of the Court of 

Civil Appeals, Ninth Supreme 

Judicial District, under the 

Dear Governor Connally: stated facts. 

Your request for an opinion on the above-captioned 

matter reads a8 follows: 

"The untimely death on February 7, 1964, 

of the Honorable W. T. McNelll, Associate 

Justice of the Court of Civil Appeals far the 

Ninth Supreme Judicial District, haa created 

some confusion with respect to the May, 1964, 

primaries. 

"At the time of his death, Judge McNeil1 

was completing a six-year term which was to 

expire on December 31, 1964. Prior to the 

February 3, 1964, filing deadline, Judge 

McNeil1 made application pursuant 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. 

"Article 8.22 of Vernon's Texas Election 

Code provides: 'If a candidate In the first 

primary dies after the deadline for filing, 

his name shall be printed on the first primary 

ballot and the votes cast for him shall be 

counted and returned for him. If such a 

deceased candidate receives a majority of the 

votes, the proper executive committee shall 

choose a nominee and certify such name to 

the proper officer 

233 of this Code 

Texas Election t 

as provided in Section 

Stlcle 13.56, Vernon15 

Co fl, ~to.be pointed on the 

general election ballot.' 

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

"Numbered Paragraph 2 of Article 13.12 

of the Election Code provides: 'The appllcation shall be filed with the state chalrman 

In the case of state-wide offices, with the 

county chairman of each county composing the 

district In the case of district offices in 

districts consisting of more than one county, 

and With the county chairman of the particular 

county in the case of county and precinct 

offices and district offices in districts 

consisting of only one county or part of one 

county; provided, honever, that applications 

of candidates for Justice of the Court of 

Civil Appeals shall be filed with the state 

chairman. The application shall be 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 

f the one who has filed, applications may 

hoe fil 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 questions are presented: 

"Is the Democratic party required to 

Include W. 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? 

"I would aplreclate your opinion on 

these questions. 

If the proviso In paragraph 2 of Article 13.12 

of the Election Code only applies in those Instances where 

the only candidate dies before the original deadline for 

filing, then Judge McNelll's name should be printed on the 

ballot in accordance with provision8 of Article 8.22 of 

the Election Code. The result would be either that the 

district executive committee would make the nomination or 

that a write-in candidate would 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 McNefllfs name would not be printed on the ballot and 

the nomination would be made in accordance with normal primary 

voting rules, 

The general policy expressed fn the Texas Election 

Code is to require that parties which cast 200,000 or more 

votes for Governor in the preceding general election must 

make thefr nomfnations by primary election except In special 

circumstances where thfs method of nomfnation is not feasible. 

(Arts, 6,01 and 13.02.) In keeping wfth this policy, it is 

also the general polfcy to l%m%t the nomfnating authority of 

party execut%ve committees, and to grant the authority only 

in unusual sftuatfons where nomfnation cannot be made by 

primary electfon, 

1037 (1916). 

Gflmore v, Waples, 108 Tex, 167, 188 S.W.~~ 

Nomfnatfon by an executfve commfttee is authorized only where the nominee dies 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 receives a major%ty of the votes (Art. 8.22), The 58th 

Legislature in 1963 re-emphasfzed the policy to require 

nomination fn the prfmary when ft rewrote former provisions 

of Artfcle 6.011 whfch 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 safd without contradiction 

that nom%nat%on by wr%te-fn votes in races where there Is no 

filed candfdateas name printed on the ballot fs generally 

an unsatfsfactory method for selectfng a nomfnee. The leglslative attftude toward thfs method of nomfnation was 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 candidate whose 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 

justfficatfon for it is to provfde voters with means for 

preventing the nomfnatfon of some other candfdate who would be 
Hon. John Connally, page 4 (C-217 ) 

unacceptable to them. Provisions for placing a deceased 

candidate’s name on the ballot take cognizance of the fact 

that the deceased candidate may have had strong popular 

support and his candidacy may have deterred other capable, 

acceptable persons from becoming candidates, and also take 

cognizance of the difficulty of organizing and consolidating 

support for a write-in candidate. 

A general principle of statutory construction is 

that where a provision is susceptible of different meanings, 

that construction should be favored which more nearly accords 

with the spirit and policy of the law, 

With these general principles and pol%cles in mind, 

we turn to a consideration of the meaning of the proviso of 

Article 13.12 in the sentence reading: 

’ * * *The appl%cat%on shall be 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 first Monday in March 

preceding the primary. * * *‘I 

We believe the most reasonable construction of this provision 

is that the filing deadline Is extended if the only filed 

candidate dies either before or after the regular deadline. 

If the statute had provided for extension of the deadline In 

the event the filed candidate died within a specified time 

before the regular deadline (e.g., less than five days before 

the first Monday in February), our conclusion might be different. 

But the statute does not make a time restriction. It is not 

unusual for candidates to file as early as the first week in 

January preceding the primary. Suppose a candidate had filed 

on January 5, and had died on January 10, leaving a period of 

three weeks OP more in which other candidates might have filed 

but none did. Is there any more reason for extending the 

deadline in .thbse- -frcumstances than, where. the only. filed : 

candidate dies within a week after the regular deadline? 

To the contrary, there Is far more reason to open the filing 

where the death occurs after the original deadline. The 

present fact situation forcefully demonstrates the truth of 

this assertion. Undoubtedly Judge McNelll’s acceptability 

to the voters of his district accounted for lack of opposition 

for the Democratic nomination. If he had not been a candidate, 

it fairly may be assumed that other candidates would have filed 

for the office. If his death had occurred at a time when other 

candidates would have had a reasonable opportunity to file 

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

before the February 3rd deadline, there would have been no 

real necessity for extending the deadline. His death having 

occurred after that deadllne, no other candidate may 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 primary ballot as the only candldate for the office 

and the result will be to force nomination In one or the 

other of two manners --nomination by an executive committee 

or nomination from write-in candidates only--neither of 

which comports with the general policy of the law, 

There has been no court decision settling the question 

of whether the death of the only filed candidate after the 

original deadline will cause an extension of the filing period. 

In Meyers v. Smith, 314 S.W.2d 631 (Tex.Clv.App. 1958), a 

district judge whose term expired on December 31, 1960, died 

on Sunday, June 1, 1958. At that time, the normal deadline 

under Article 13.12 was the first Monday In May, and the extended deadline was 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 primary ballot,, the Court of Civil Appeals 

held that Article 13.12 does not apply to a nomlnatlon for an 

unexpired term where the vacancy in office occurs after the 

regular filing deadline, without Intimating whether the proviso 

would or would not have become operative if the nomination had 

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 nomination may file for the office through 

the date of March 2. It is also our opinion that Article 8.22 

will not apply, and that Judge McNeill's name should not be 

printed on the prlmarylballot. This article provides that a 

deceased candidate's name shall be 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 either before or after the original deadline 

does not cause an extension of the filing period, but if one 

of the candidate8 dies 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 E 07 (Tex.Civ.App. 195&), which Is th e 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 "deadline for filing" referred 

to In Article 8.22 to be the extended deadline. 

-1047- 
- 

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

SUMMARY 

Where filing for a place on the primary ballot 

is governed by Article 13.12 of the Election Code 

and the only person who 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's name is not placed 

on the ballot under the provisions of Article 8.22 

of the Election Code which 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 THE ATTORNEY GENERAL 

BY: Stanton Stone 

-1048-