E .A ORNEY GENERAL

OF TEXAS

April 25, 1960

Honorable GeorgeW. Morris OpinionNo. w-827 County Attorney Montgomery County Conroe,Texas Re: Whether the Montgomery County Clerk can accept
a certificate of a nominationmade in the primary election and place the nominee'sname on the general election ballot, under facts stated.

Dear Mr. Morris:

Your opinion request is summarizedas follows:

The Justice of the Peace for Justice PrecinctNo. 2 of Montgomery County,whose term of officewould have expired on December 31, 1962,died on April 2, 1960, The Commissioners Court of Montgomery Countywill appoint a successorto fill the vacancy until the general election in November of 1960, at which election a successor will be elected to fill the remainder of the unexpired term. Sect,28 of Art. V, Tex.Const.;Art, 2355, R.C.S, The statutorydeadline for candidates to file for
a place on the ballot in the Democratic Primary to be held on May 7 had alreadypassed at the time the vacancy occurred, Art, 13.12,Vernon's Texas Election Code. The County Democratic Executive Committee of Montgomery County adopted a resolutionauthorizing selectionof
a party nominee for the unexpired term in the Democraticprimary elections and fixed April 15
as the deadline for candidates to file for a place on the primary ballot. The period for absentee voting in the primary commenced on April 17, and the ballotswere amended to include this office and the names of the candidateswho had filed by the deadline before absenteeballots
were delivered to the County Clerk.

QUESTION: Can the County Clerk of MontgomeryHonorable GeorgeW, Morris,page 2 (W-827)

County accept the certificationof a nominee selected In thismanner and place the name of the nominee on the general electionballot?

The Election Code does not prescribea method whereby a politicalparty which is required to hold primariesmay make a nomination for an unexpired term in a county or precinct office where the vacancy occurs after the deadline for filing under Article 13.12 of the Code, A nominationfor an unexpired term must be made in the primaries in accordancewith the statutory provisions if the vacancy occurs in sufficienttime for candidates to file by the first Monday in February; but the filing dates set out in Article 13.12 and otherprovisions regulating candidacy In the primary do not apply where the vacancy occurs after the first Monday in February or so near to that deadline that prospective candidatesdo not have a reasonable oooortunitv to file before that time, Kilday v. Germany 139 Tex.*38G, 163 S.W.2d 184 (1942);Meyers v. Smith, 314 S.W.id 631 (Tex.Civ. APP. 1958)e

Article 6,04 of the Election Code authorizes the state executive committee in the case of state officers,and the appropriatedistrict committee in the case of district officers, to name a nominee where a vacancy In a state or district office arises after the filing date of the first primary, but neither the county committeenor any other committeemay name a nominee for a county or precinct officeunder these circumstances. Gilmorev. Waples, 108 Tex. 167, 188 S.W. 1037 (1916);Att'y Gen. Op. S-215 (1956).

In the absence of a statutorymethod for making a nomination, a politicalpartymay select a nominee In any manner not contrary to law and agreeablewith party usage. Gilmorev. Waples, supra;Kilday v. Germany, supra;Att'y Gen.Op.WW-3b7 (1958) One

. manner in which a nomihation for a county or precinct officemay be made if the vacancy occurs after the regular filing deadline but in time to allow candidatesto file before absenteevoting begins in the first primary, is to open the filing and permit candidates to run in the primary.1 Kilday v. Germany, supra.

lIn Gpinionw-367 we said that nominations for an unexpired term are subject to the same regulationsas nominations for
a full term if the vacancy occurs in sufficienttime for nominations to be made in the primary elections. This statementwas made in reference to vacancieswhich occur in time for the statutory filing provisions to apply. It was not intended tomean that a nomination could not bemade in the primary or that statutory deadlineswould apply where the vacancy occurredafter the statutory filing time.Honorable GeorgeW. Morris,page 3 (W-827)

In that case (decidedbefore enactment of the provision in Article 6.04 empowering the state committee itself to name a nominee), the Supreme Court held that the state executive committee could authorize themaking of a nomination for a state office in the primary election in these circumstancesand could fix the time for candidatesto file for a place on the primary ballot. In Meyers v. Smith, supragwhich involved a nomination for a one-countydistrict office, the court did not give effect to an attempted extension of the filing deadline, but the holding of that case is not inconsistentwith the Kilday case. In the Meyers case a subcommitteeof the state executive committee had recommendedthat this action be taken,but the committee itselfhad not authorized the action, The chairman of the county committee,who comprised the district committee (Lovev. Miller, 316 S.W.2d 26g9 Tex.Civ,App. 1958), had accepted applications of candidates subject to approval of the county executive committee, which later refused to approve his action,but he had not undertaken unconditionallyto authorize this action. It was later held in Love v. Mfller that ArtScle 6.04 of the Election Code authorized the district committeeto name a nominee for the office, Questionswhichmight arise from the Me ers and Love
-+-- - cases as to whether a committee hav%ng the power 0 name a nominee couldwaive that power and adopt some othermethod, and
as to whether the state committee could override the action of
a lower committee,need not be consideredhere because the county executive committeedoes not have thepower tomake the nomination and the state committeehas not attempted to prescribe the method of nomination.

We are of the opinion that by party usage the county executive committeehas the same authoritywith respect to a county or precinct office that Kilday v. Germany accorded to the state committeewith respect to a state office, If the action of the county comm%tteedoes not conflictwith action of the state organization. To our knowledge, neither the State Democratic Executive CommEtteenor the State Conventionhas adopted any generalpolicy, by resolution or otherwise,to prescribe themethod to be followed formaking nominations for county and precinct offices in these circumstances,OP to prohibit the county executive committeesfrom determining the method.
Directly answeringyour question,we are of the opinion that the CountyDemocratic Commfttee of Montgomery County could authorize a nomination for this unexpired term to be made in the primary elections in themanner you have outlinedand that the County Clerk of Montgomery County shouldplace the name of the nominee on the general electionballot upon receipt of a certification of the nomination from the county chairman. TheHonorable GeorgeW. Morris, page 4 (WW-827)

committee could fix the time for candidates to file, the time for payment of the assessment for expenses of conducting the primary, and other procedures incidental to placing the names of the candidates on the primaryballot.

SUMMARY

Where a vacancy in a county or precinct office occurs after the statutory time for candidates to file for a place on the primary election ballotbut in time to allow candidates to file before absenteevotingbegins in the first primary, the county executive committee of the party holding the primary may authorize themaking of a nomination in the primary electionsandmay fix the time for candidates to file and otherwiseprescribe the procedures incidentalto placing their names on the primary ballot. Upon receipt of a certificationof the nomination in proper form, the county clerk shouldplace the name of the nominee on the general electionballot.

Yours very truly,

WILL WILSON Attorney General of Texas

MKW:bh:ljb

APPROVED:

OPINION COMMITTEE W. V. Geppert,Chairman

William E. Allen J. C. Davis, Jr. Riley Eugene Fletcher Jack Goodman

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore 

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