Honorable Linton S. Savage 

County Attorney 

Nueces County 

Corpus Christl, Texas 

Dear Sir: Opinion No. C-2476 

Re: Can the voters in the 

general primary election 

write in the name of a 

person that they desire 

to vote for and elect a 

person who has not had 

his name placed on the 

ballot as required by 

law? 

Your recent request for an opinionof this 

Department on the above stated question has been received. 

We quote from your letter as follows: 

"The Secretary of the Democratic Executive Committee of Nueces County, Texas, has 

asked me to obtain a ruling from your Department in regard to writing in names on the 

ballots at the general prfmary election. 

"In a race for one of the Justices of 

the Peace in this County, one candidate failed 

to file his request to have his name placed 

on the ballot for the coming primary election 

as required by Article 3113 of the Revised 

Civil Statutes of Texas. The othercandidate 

filed his request a8 required by law. The 

one who dfd not file is contemplating a,wrltein campaign. 

/The Secretary wants the following question propoundeda 'Can the voters in the general primary election write in the name of 

a person that they desire to vote for and 
Honorable Lfnton S. Savage, page 2 (O-2476) 

elect a person who has not had his name placed 

on the ballot as requI.red by law?'" 

Article 3109, Vernon's Annotated Civil Statutes, 

reads as follows: 

"The vote at all general primaries shall 

be by offfcfal ballot, which shall have printed 

at the head the name of the party, and under 

such head the names of all candidates, those 

for each nomination being arranged in the 

order determined by the various commfttees 

as herein provided for, beneath the title 

of the offPce for which the nomfnatfon is 

sought 0 The voter shall erase or mark out 

all names he does not wfsh to vote for. The 

official ballot shall be printed in black 

ink upon white paper, and beneath the name 

of each candidate thereof for State and district offices, there shall be prfnted the 

'county of his residence. The official ballot shall be printed by the county committee 

in each county, which shall furnish to the 

presfding offfcer of the general primary for 

each voting precinct at least one and onehalf times as many of such official ballots 

as there are poll taxes paid for such precinct, as shown by the'tax collector's list. 

Where two or more candfdates are to be nominated for the same office, to be voted for 

by the qualffied voters of the same dfstrlct, 

county or justice precfnct, such candidates 

shall be voted for and nomfnations made separately, and all nomLnatfons shall be separately designated on the official ballots by numbering the same, '11, '2', “3’ etc., prfntlng the word 'No.', and the designating number after the title of the office for which 

such nominations are to be made. Each candldate for such nomination shall designate 

in the announcement of hfs candfdacg, and 

in his request to have hfs name placed on 

the official ballot, the number of the nomination for which he desires to become a candidate, and the names of all candidates SO 

requesting shall have thefr names prfnted 

beneath the title of the office and the number so designated, Each voter shall vote 
Honorable Lfnton 9. Savage, page 3 (O-2476) 

i,;~,ar$y one candidate fop each such nominaWe believe the opfnfon of the court In the 

case of Dunagan vs. Jones, 76 9. W. (2d) 219, deflnltely answers your inquiry. 

Mrs. Roy H. Dunagan was the contestee in 

the above mentioned case and her husband, Roy H. Dunagan, prior to his death on July 15, 1934, had been an 

active candidate for nomination for the offfce of County 

Commissioner of Precinct No. 2 of Lamar County and soon 

after his death Mrs. Dunagan was solicited by numerous 

friends to make the race as a candidate for said office 

in the coming election by having her friends wpite her 

name in the offlcfol ballot used fn the election. She 

consulted the County Attorney of Lamar County and he 

wrote the Attorney General of the State requesting his 

opinion as to whether MPS. Dunogan could become a candidate In the election, and If votes voted for her by 

voters writing her name on the official ballot for said 

election would be valid and counted for her. The Attorney General advised that the votes would be legal and 

could be counted. On receipt of this advlce, HPS. Dunagan began and thereafter waged an active campaign for 

nomination in the election for the office of County 

Conmissioner. Mrs. Dunagan did not comply wfth any 

of the provisions of the primary election law required 

of candidates in said primary election law to enable 

them to have their names ppinted on the official ballot as candidates and dfd not pay any portion of the 

expenses of holding the election. 

We quote from the above mentioned case as 

follows3 

"OrdlnaPlly, expmss provlsfon is made 

by statute as to the form, requisites, preparation, and furnishing of ballots by means 

of which the voter may record hfs choice. 

And in this state there is such statutory 

provision as to general primary elections. 

The requfrement;besides others, is that the 

name of all candidates shall be printed beneath the office for whfch nomination is 

ssught 0 Article 3109, R. S. Any candfdate 

for county offfce I.8 expressly given the 

right to have hfs name appear printed on 
Honorable Linton S. Savage, page 4 (O-2476) 

the offialal ballot of the primmy election 

upon written request signed and acknowledged 

and filed with the county chairman not later 

than Saturday before the third Monday In June 

preceding such election. Article 3113. And 

further, as a condftfon precedent, the county 

candidate must pay to the executive committee 

the amount of the estimated expenses of holding the primaPg apportioned to him. Article 

3116, R. S. Since statutory provisions as 

to the preparation of the ballot and as to 

the printed names to appear thereon must 

be strictly followed (20 C. J, B 164, p* 141), 

the rfght of a candidate to have his name 

printed on the official ballot would not be 

evident in case of failure to timely fulfill 

the requirements of the statute, and his application for mandamus would probably be denied by the court. In such case of default 

In the compliance of the fair and reasonable 

restrictions, the candidate would not have 

the right as personal to him of legal relief 

in the courts to compel the printing of his 

name on the official ballot. But the purely 

personal rights of the candidate in the respect mentioned is quite apart and distinct 

from and does not measure the right of the 

voter to Indicate his choice of a person for 

the nomination of a particular office. There 

Is a well recognized difference between the 

rlghts and duties of candldates in having 

their names printed on the officfal ballot, 

and the legal right of the voters in choosfng their nominees on the day of the general 

primary election. The legal effect is not 

necessarily attachfng of fnvalidlty of the 

ballot as to that particular office and rendering his vote not subject to be counted, 

of a qualified voter writing the name of a 

person on the ballot under a particular office. In the light of the history of the 

adoption generally of the method of official 

ballot, the present.leglslatfve provisions 

as to tb.e requirement of the use of the official ballot in the primary election may 

be regarded as adopted rather for the benefit of the votep, and as a safeguard to the 

purity of elections, than for the personal 

benefit only of the candidate. 
.-,, -\ 

Honorable Llnton S. Savage, page 5 (O-2476) 

"The decision of the question varies, 

according to the phraseology of the statutes, 

of whether a voter may vote for a person whose 

name is not printed on the official ballot 

by writing his name under the particular office, While the primary law of this state 

does not contain direct authority to vote 

by writing a name on the offfclal ballot, 

yet the primary law does not forbid the making of nominations in that manner. The statute simply provldes that 'the vote at all 

general primaries shall be by official ballot,' and that 'the voter shall erase OP mark 

out all names he does not wfsh to vote for'. 

Article 3109, R. S. There is no provision 

that county candidates must be chosen by the 

voters only from those names that are printed 

on the official ballot. It is, therefore, 

believed that the statute should be so construed as to leave the voter with free choice 

upon his own volltfon to erase or mark out 

all printed names and write in the name of 

a person not on the ballot under the partlcular office. The fundamental principle of 

the direct primary Is to have expression of 

the popular will by voting for the persons 

freely chosen by them as nominees for the 

particular offfces. The voice of the people 

becomes of legal force when expressed at the 

time and under the condltfons which have been 

prescribed and pointed out for them by statute, or as allowed by existing law. There 

appearing no legal reason why at the election 

any voter who chose to do so should not vote 

for the contestee, there Is no escape from 

the conclusion that the contestant was not 

at all events nominated for the particular 

offfce. If he was not elected, he cannot 

have the contestee ousted from the certified 

nomination in this proceeding. 

"The question decided is one of first 

Impression fn this state, and authorities 

of other cases are not here cited as being 

without application." 

In view of the foregoing case you are respectfully advised that it fs the opinion of this Department 
Honorable Linton S. Savage, p a g e 6 (O-2476) -_. * 

that the qualified voters In the general primary election can write in the name of any person for whom they 

desire to vote and mark out all printed names under 

the particular office in the general primary election; 

and that the votes would be legal and could be counted, 

and of course, if the person whose name was writte,n,. 

in or on the ballot, received a sufficient number Of 

votes as required by law, such person would be nomknated, 

Trusting that the foregoing fully anSW,ePs 

your inquiry, we are 

Yours verge tmdy : ~: 

ATTORNEY GENERAL '3' TEXAS 

By /a/ Ardell W3.11iamc 

Ardell WillWm!~ ,~ '1 

A~saistfint~ 

AW:BBB:LM 

APPROVED JUN 29, 1940 

/a/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED 

OPINION 

COMMITTEE 

BY BWB 

CHAIRMAN