. 

Hon. H. A. Hull, Chairman Opinion No. S-41 

House Committee on Privileges, 

Suffrage, and Elections Re: Constitutionality of the 

53rd Legislature method, If any, provided 

Austin, Texas by Senate Bill 2 to finance the presidential 

primary election this 

Dear Sir: bill creates. 

You have requested an opinion on two questions relating 

to Senate Bill 2, now being considered by your committee, as 

follows: 

"(1) Does the bill purport to provide for a manner 

of financing the primary It creates? 

"(2) If, in fact, the responsibility of financing 

would fall on the State and/or County Government, would this provision be constitutional 

in view of the fact that the primary is 

strictly a party function?" 

Senate Bill 2 Is commonly referred to as the Presidential Preference Primary Bill. It provides for the holding of 

a primary on the second Saturday in June of each presidential 

election year for the election of delegates to the national 

convention of each political party whose nominee for Governor 

in the last preceding general election received as many as 

25,000 votes. It also provides for voting on presidential and 

vice-presidential candidates and binds the delegates to vote 

for the successful candidates on the first ballot at the 

national convention. 

This election is to be proclaimed by the Governor and 

ordered by the county judges of the respective counties, and 

writs of election and notices are to be Issued and published 

as provided by law for general elections. The election Is to 

be held by the general election officials named by the commissioners ' court, and the officers are to receive the same fees, 

allowances and wages as In general elections. Ballots are to 

be prepared by the Secretary of State, and returns of the election are to be canvassed by the commissioners' court of each 

county and then forwarded to the Secretary of State in the 
I 

Hon. H. A. Hull, page 2 (S-41) 

manner ,and within the time prescribed for general elections, 

to be finally canvassed by that officer. Applications for 

placing the names of candidates on the ballot are to be filed 

with the Secretary of State, and there must be paid for each 

candidate a filing fee which the Secretary of Siate is required to pay and deliver to the "General Fund. We take it 

that the fund referred to is the General Revenue Fund of the 

State. However, no provision is made for keeping these fees 

separate from other moneys in the Fund which are derived from 

taxation or for disbursement of the fees to help defray the 

costs of the election. We might also observe that the total 

collections would probably be far less than the expenses incldent to the election. 

Section 5 of the bill reads as follows: 

"Arrangements and Expenses of Election. The laws 

of this State relating to ballot boxes, stub boxes, 

voting booths, guard rails and other election supplies 

for general elections, and the guarding, checking, distribution, 

likewise to 

safekeeping and storage ;f same, shall apply 

such primary elections. 

Section 77 of the Texas Election Code (Article 7.12, 

Vernon's Election Code) provides: 

"All expenses incurred in furnishing the supplies, 

ballots, and booths in any general or special election 

shall be paid for by the county, except costs in munlcipal and school elections. All accounts for supplies 

furnished and services rendered shall first be approved 

by the Commissioners Court before they are paid by the 

county." 

It Is seen that the election, although termed a primary, 

is to be conducted much in the same way that general state-wide 

elections are conducted. We believe the intent of Section 5 of 

the bill is to make the provisions of Section 77 of the Election 

Code, placing the expenses of general elections on the counties, 

applicable to these primary elections. Section 77, although 

referring to accounts for 'services rendered,? may not cover 

payment for services of election officials but may refer only 

to other types of services. However, Section 22 of the Election 

Code provides that the pay of judges and clerks of general. elections shall be determined by the commissioners' court of the 

county where the services are rendered, and ,that their compensation shall be paid by the county treasurer upon order of the 

commissioners. We believe a reasonable interpretation of the 

provision in Section 4 oi Senate Bill 2 which states that 'such 
-. . 

Hon. H. A. Hull, page 3 (S-41) 

officers shall receive the same fees, allowances, and wages as 

in general elections" is that not only the rate of pay but the 

source of pay is to be the same as In general elections. 

In answer to your first question, then, our conclusion 

is that Senate Bill 2 does purport to provide a manner for flnanclng the primary it creates, namely, by each county's paying 

the expenses of the election in that county In the same manner 

as expenses of a general election are paid. 

In your second question you ask whether the responsibllity for financing this type of election may be placed on the 

state or county government. In Waples v. Marrast, 108 Tex. 5, 

184 S.W. 180 11~116). the Subreme Court of Texas held that a 

provision In the Presidential Preference Primary Law of 1913 

(Acts 33rd Leg., 1913, ch. 46, p. 88) requiring the counties 

to pay the expenses of the election violated Section 52, Article III and Section 3, Article VIII of the Texas Constitution. 

Section 3 of Article VIII provides that taxes shall be levied 

and collected for public purposes only, and Section 52 of Article III prohibits the granting of public money in aid of, or 

to, any individual, association, or corporation. The gist of 

the opinion is that political parties are voluntary associations and not governmental instrumentalities, and that the 

holding of their primaries Is not a public purpose In the 

sense in which the term Is employed as a limitation upon the 

State's power of taxation. The courts of this State have consistently adhered to this concept of the nature of political 

parties in subsequent decisions, 

74 S.W.2d 113 (1934); 

Bell v. Hill, 123.Tex. 531, 

1946); 

McCombs v. Stevenson, 195 S.W.2d 566 

Tex.Civ.App. 

16 (1948). 

Wall V. Currie, 147 Tex. 127, 213 S.W.2d 

In 1944 the Supreme Court of the United States held In 

Smith v. Allwright, 321 U.S. 649, that the exclusion of Negroes 

from the Democratic primaries In Texas through a rule adopted by 

the state convention of that party was in violation of the Flfteenth Amendment to the Federal Constitution, which declares 

that the rights of citizens to vote shall not be denied or 

abridged by the United States or by any State on account of 

race, color, or previous condition of servitude. The court 

said that the statutory system In Texas for the selection of 

party nominees for inclusion on the general election ballot 

makes the party which is required to follow these legislative 

directions an agency of the State insofar as it determines the 

participants In a primary election. "If the State requires a 

certain electoral procedure, prescribes a general election 

ballot made up of party nominees so chosen and limits the 

choice of the electorate in general elections for state 
. .- 

Hon. H. A. Hull, page 4 (S-41) 

office , practically speaking, to those whose names appear on 

such,a ballot, It endorses, adopts and enforces the discrlminatlon against Negroes, practiced by a party entrusted by 

Texas law with the determination of the qualifications of 

participants In the primary. This Is state action within the 

meaning of the Fifteenth Amendment." 321 U.S. at 664. 

Smith v. Allwright Involved solely the question of 

whether party action In excluding Negroes from a primary election was in violation of the Federal Constitution. Directly, 

the decision had no effect whatever on the question of whether 

the primary was a public purpose within the meaning of the Constitution of this State. It did compel a revision in the decisions of the Texas courts ,on the power of a political party 

to prescribe the qualifications of its members, and it overruled Bell v. Hill. To what extent this enforced revision of 

the concept of a political party's powers might affect the 

decision in Waples v. Marrast is brought to our attention by 

the holding of the Supreme Court of Arkansas In Adams v. 

Whittaker, 195 S.W.2d 634 (Ask.Sup. 1946). In that case the 

court took the view that Smith v. Allwright In effect overruled 

Waples v. Marrast, and, relying on the Allwright case, held 

that the expenses of a party primary could be paid out of 

public funds. 

It Is within the province of the courts of this State 

to place their own interpretation upon the provisions of the 

Texas Constitution. Even if the Supreme Court of the United 

States or the courts of other States might be of the opinion 

that the holding of party primaries Is a public purpose which 

may be supported by taxation, the Supreme Court of this State 

would still be free to give a different construction to prohlbltlons in our State Constitution. 

BEl.204, 205. 

See 21 C.J.S., Courts, 

However, upon analyzing the holding in Smith v. 

Allwright we are unable to agree with the view taken by the 

Arkansas court that this decision had a bearing on the question before us. The Allwright case held, In effect, that the 

State, by permitting political parties to place candidates 

on the general election ballot and by requiring them to make 

tneir nominations In a certain way, had placed the parties 

within the regulatory power of the State to such an extent 

that party action became state action insofar as particlpation in the selection of nominees was concerned. We do not 

think the opinion was intended to mean that the parties became 

Instrumentalities of the state government in the sense that 

the State had any duty to maintain and finance their activities. 

It meant only that a party, by being given a voice in the elective process of the State, must conform to the same constitutional restrictions which are imposed upon the State Itself. 
Hon. H. A. Hull, page 5 (S-41) 

This interpretation of the import of the decision Is borne out 

in Mr. Justice Clark's concurring opinion In Terry v. Adams, 

decided by.the Supreme Court of the United Stateson~ May 4, 

1953 (21 U.S. Law Week 4346), wherein he, said: 

"In Smith V- Allwright; 321 U.S. 649 (.1944), this 

Court held that,the Democratic Party of itself, and 

perforce any other political party, is: prohibited by 

that Amendment from conducting a racially discrlminatory primary e.lection. .,By the, rule of,that case, any 

'part~of t~he machinery forchoosing officials' becomes 

subject,to 'the Constitution's restraints. a., at 664. 

There, as here; we dealt with an organization that took 

the form of 'voluntary a,ssociation' of unofficial character. But bec,ause In fact ,lt .functioned as a part of 

the state's electoral maehlnery,, we,held It controlled 

by the same constitutional limitations that ruled the 

officia,lgeneral election." .:. ; 

In Terry v. Adams.the Supreme Court exten,ded the holding of Smith v. Allwright to primaries. of ,a political organization which were conducted.entlrely outside the framework of the 

State's regulatory measures, in which Iformal State action, 

either.by way of legislative recognition or official authorization, Is wholly want~ing;" ,(21 U.S. Law Week 4351.) If Smith 

v. Allwright had the effect of making the Democratic primary 

a state function which could be financed out of public tax 

money, Adams v. Terry has made the totally unauthorized and 

unrecognized primary of the Jaybird Party a state function 

which likewise could be financed by taxation. The mere statement of such a contention is its own refutation. 

Cur evaluation of the course of judicial decision 

since Waples v. Marrast is that there has been nothing in the 

cases to lead us to believe that the Supreme Court of Texas 

would now overrule that case. Accordingly, our answer to 

your second question is that a statutory provision requiring 

the payment of the expenses of the primary created by Senate 

Bill 2 out of public funds raised by taxation Is unconstitutional. 

However, we would like to point out that we see no 

constitutional objection to the financing of the election, 

administered by state or county officials, out of a fund made 

up of the filing fees of the candidates supplemented by assessments against the participating parties, a registration fee 

against participating voters, or some other similar means. 

Furthermore, the impediment to payment of the expenses of the 

election In the manner presently contemplated in Senate Bill 

2 could be cured by the adoption of a constitutional amendment. 
. ,. 

Ron. H. A.,Hull, Rage 6 (S-41) 

SunNARY 

Senate Bill 2’ oi the 53rd L@slaturc, the’ 

Presidential Preference Prlnary Bill, purports to” ” 

provide for thiz payment OS the expenses of,the 

election which it creates out of county fknds in ‘, 

each’ countp.:,ln the 8ame Myy ‘a8 expenses of a 

general .bl+ctiozk,are p&Id. 

.~ 

,. 

,‘A &&&r~ p&v~~~6n”&qeqril& the payment of 

the expenses of the’prlmary,created.by Seiuite Bill 

2 out of public .funds ‘+alsed by taxation I.8 ‘unconstitutional. Waples V. Maarrast; 108 Tex. 3,“184 S.W. 

180 (1916). iiowever’, there would. be no constitutional 

objection to the financing of the election out of a 

fund made up of the filing.feea of th$, candIdat . 

supplemented by assessaetits against, the participating 

parties, a regiatratlon fee against participating 

voters, or 8ome~ other slnllar~mean8.’ Furthermdre, 

the ‘Impediment to the payment ~oi, the expen8es. of 

the election In the manner presently eotitemplatcd 

in Senate Bill 2 could be cured bg the adoption of 

a conetltutlonal’ amendment. 

APPROVED: %tlZ’S V~‘-tX’U~~, 

Will18 E. Oresham JORH BEN SREPPERD 

Reviewer Attorney General 

Robert S. Trottl ._, 

First A8Si8tant 

John Ben Shepperd 

,.Att-ornwy ~@eneral Assistant