E .A ORNEY GENERAL 

OF TEXAS 

April 25, 1960 

Honorable George W. Morris Opinion No. w-827 

County Attorney 

Montgomery County 

Conroe, Texas 

Re: Whether the Montgomery 

County Clerk can accept 

a certificate of a nomination made in the primary election and place 

the nominee's name on 

the general election 

ballot, under facts 

stated. 

Dear Mr. Morris: 

Your opinion request is summarized as follows: 

The Justice of the Peace for Justice 

Precinct No. 2 of Montgomery County, whose 

term of office would have expired on December 

31, 1962,died on April 2, 1960, The Commissioners 

Court of Montgomery County will appoint a 

successor to 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 

statutory deadline for candidates to file for 

a place on the ballot in the Democratic Primary 

to be held on May 7 had already passed at the 

time the vacancy occurred, Art, 13.12, Vernon's 

Texas Election Code. The County Democratic 

Executive Committee of Montgomery County 

adopted a resolution authorizing selection of 

a party nominee for the unexpired term in the 

Democratic primary 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 ballots were amended to include 

this office and the names of the candidates who 

had filed by the deadline before absentee ballots 

were delivered to the County Clerk. 

QUESTION: Can the County Clerk of Montgomery 
Honorable George W, Morris, page 2 (W-827) 

County accept the certification of a nominee 

selected In this manner and place the name 

of the nominee on the general election ballot? 

The Election Code does not prescribe a method whereby a 

political party which is required to hold primaries may 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 nomination for an unexpired term 

must be made in the primaries in accordance with the statutory 

provisions if the vacancy occurs in sufficient time for candidates to file by the first Monday in February; but the filing 

dates set out in Article 13.12 and other provisions 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 candidates do 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 

appropriate district 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 committee nor any other committee may name a nominee 

for a county or precinct office under these circumstances. 

Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916); Att'y 

Gen. Op. S-215 (1956). 

In the absence of a statutory method for making a nomination, a political party may select a nominee In any manner not 

contrary to law and agreeable with party usage. Gilmore v. Waples, 

supra; Kilday v. Germany, supra; Att'y Gen.Op. WW-3b7 (1958) . One 

manner in which a nomihation for a county or precinct office may 

be made if the vacancy occurs after the regular filing deadline 

but in time to allow candidates to file before absentee voting 

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 regulations as nominations for 

a full term if the vacancy occurs in sufficient time for nominations to be made in the primary elections. This statement was made 

in reference to vacancies which occur in time for the statutory 

filing provisions to apply. It was not intended to mean that a 

nomination could not be made in the primary or that statutory 

deadlines would apply where the vacancy occurred after the statutory 

filing time. 
Honorable George W. Morris, page 3 (W-827) 

In that case (decided before 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 the making of a nomination for a state 

office in the primary election in these circumstances and could 

fix the time for candidates to file for a place on the primary 

ballot. In Meyers v. Smith, suprag which involved a nomination 

for a one-county district office, the court did not give effect 

to an attempted extension of the filing deadline, but the holding of that case is not inconsistent with the Kilday case. In 

the Meyers case a subcommittee of the state executive committee 

had recommended that this action be taken, but the committee 

itself had not authorized the action, The chairman of the county 

committee, who comprised the district committee (Love v. 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 unconditionally to authorize this action. It was later 

held in Love v. Mfller that ArtScle 6.04 of the Election Code 

authorized the district committee to name a nominee for the 

office, Questions which might arise from the Me ers and Love 

cases as to whether a committee hav%ng the power -+-- 0 name - a 

nominee could waive that power and adopt some other method, and 

as to whether the state committee could override the action of 

a lower committee, need not be considered here because the county 

executive committee does not have the power to make the nomination and the state committee has not attempted to prescribe the 

method of nomination. 

We are of the opinion that by party usage the county 

executive committee has the same authority with respect to a 

county or precinct office that Kilday v. Germany accorded to 

the state committee with respect to a state office, If the 

action of the county comm%ttee does not conflict with action 

of the state organization. To our knowledge, neither the State 

Democratic Executive CommEttee nor the State Convention has 

adopted any general policy, by resolution or otherwise, to 

prescribe the method to be followed for making nominations for 

county and precinct offices in these circumstances, OP to prohibit the county executive committees from determining the 

method. 

Directly answering your question, we are of the opinion 

that the County Democratic Commfttee of Montgomery County could 

authorize a nomination for this unexpired term to be made in the 

primary elections in the manner you have outlined and that the 

County Clerk of Montgomery County should place the name of the 

nominee on the general election ballot upon receipt of a certification of the nomination from the county chairman. The 
Honorable George W. 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 primary ballot. 

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 ballot but in time to allow candidates to file before absentee voting begins 

in the first primary, the county executive 

committee of the party holding the primary 

may authorize the making of a nomination in 

the primary elections and may fix the time 

for candidates to file and otherwise prescribe the procedures incidental to placing 

their names on the primary ballot. Upon 

receipt of a certification of the nomination 

in proper form, the county clerk should place 

the name of the nominee on the general 

election ballot. 

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 

B