Honorable Jules Damianl, Jr. Opinion No. Ed-1384 

Criminal District Attorney 

Galveston County Courthouse 

Galveston, Texas 

Re: 

Dear Mr. Damiani: 

Whether a political party 

has authority to nominate 

a candidate for the'office 

of County Tax AssessorCollector to go on the 

General Election ballot, 

rrhere the Incumbent Tax 

Assessor-Collector died 

with more than two years 

left in his term of office, 

such death occurring too 

late to select a nominee 

at the Primary election. 

In your letter you state1 

"John H. Oberndorfer was - __ 

elected to 

the office of Assessor-Collector of Taxes 

of Galveston County, for a period of four 

years, at the General Election In November, 1960. as provided by the provisions 

of Art. 1.6, paragraph 65 of the Constitution UT the State of Texas, and held 

that office, until his death on may 31st, 

1962, 

f 

during the middle of his term of 

office . 

"The vacancy in the office of AssessorCollector of Taxes has been filled by appointment by the Commissioners Court as 

provided for by Art. 2355, R.C.S. until 

the next general election. 

"The office of Assessor-Collector of 

Taxes was not on the ballot at the Democratic Primary election of Saturday, May 

5th, 1962." 

You have asked the following questions! 

"As there wasno nominee for the offlee of Assessor-Collector of Taxes on 

. 
Honorable Jules Damianl, Jr., page 2 Opinion No. NW-1384 

the May Primary Election ballot, the queetlon arises, does any political party 

(either Democratic, Republican or otherwise) have the authority to meet and 

nominate a nominee, whose names would be 

printed upon the Official Ballot at the ,~ 

General Election to be held on November 

6th, lg62? 

"Secondly - should the Attorney General 

hold and/or should a court of competent 

jurisdiction decide that a political party 

does not have the authority to nominate a 

candidate whose name would go upon the 

General Election ballot In November, and 

further should no petition of an Independent candidate be filed with the county 

judge, as provided by Art. 13.53, Election 

Code, would the Electoral Board have the 

authority to place the office of AssessorCollector of Taxes on the General Election 

ballot in November, so that a voter would 

have the right to write-in the name of a 

candidate of his choice, for said office, 

as is provided for In Sec. 16, Art. 7.14, 

Election Code, under the provisions of 

the voting machine laws; Galveston County 

having adopted and are using voting machines In all elections?" 

Art. 6.04, Texas Election Code, reads In part as follows: 

"If a nominee dies or declines his 

nomination, and the vacancy so created 

shall have been filled, and such facts 

shall have been duly certified in accordance with the provisions of this Code, 

the Secretary of State or Cocunty Judge, 

as the case may be, shall promptly not!fy 

the official board created by this law 

to furnish election supplies that such 

vacancy has occurred and the name of the 

new nominee shall then be printed upon 

the official ballot, If the ballots are 

not already printed. D e .: 

"If a state or district official 

who is serving a four (4) or a six (6) 
Honorable Jules Damiani, Jr., page 3 Opinion No. W-1384 

year term should die or resign on the 

even numbered year In which he is not 

a candidate, after the filing date of 

the first primary election and before 

the printing of the ballot for the general election, the state committee for 

each political party in the case of 

state officers and the appropriate district committee for each political party 

in the case of district officers shall 

have the power to name a nominee for 

such position and to certify the name 

to the proper election board to have 

the name printed on the general elec.- 

tlon ballot. 0 . .” 

Art. 13.56, Texas Election Code, reads as follows: 

“A nominee may decline and annul 

his nomination by delivering to the 

officer with whom the certificate of 

his nomination is filed, ten (IO) days 

before the election, If It be for a 

city office, and twenty (20) days in 

other cases, a declaration in writing, 

signed by him before some officer 

authorized to take acknowledgments, 

Upon such declination (or In case of 

death of a nominee), the executive committee of a party, or a majorit,y of 

them for the State, district or county, 

as the office to be nominated may require, may nominate a candidate to 

supply the vacancy by filing with the 

Secretary of State In the case of State 

or district officer, or wlth.the county 

Judge, in the case of county or precinct 

officer, a certificate duly signed and 

acknowledged by them, setting forth the 

cause of the vacancy, the name of the 

new nominee, and office for which he 

was nominated and when and how he was 

nominated. No executive committee 

shall ever have power of nomination, 

except where provided for by law.” pmphasis addew 
Honorable Jules Damlanl, Jr., Page 4 Opinion No. WW-1384 

Art. 6.04, Election Code, provides the procedure to be 

followed If an-office holde&who holds a state or district 

office ____~ - should ~..~ ~~~ d’Fe or resiiz -n In the middle of his four or six 

-term. Art. 13.56 sets out the procedure to be followed 

in the case of death of a party nominee, or declination of nomination by a party nominee. Mr. Oberndorfer did not hold a state 

or district office: he held a county office. So, Art. 6.04, 

Election Code, does not apply to your situation. Mr. Oberndorfer was not a nominee; 1962 is not the year for County Tax 

Assessor-Collector’s terms of office to expire. No party nominees were selected In the Primary elections of 1962. Had Mr. 

Oberndorfer’s death occurred earlier irthe year, it would have 

been possible for the County Executive Committee of each party 

to announce that they would accept applications from candidates 

for the unexpired term of Mr. Oberndorfer, announce the amount 

of the filing fee and set a deadline for filing. This was done 

this year In Travis County, upon the death of its Tax AssessorCollector. See Attorney General’s Opinion No. ww-827 (not a - 

plicable to State and district offices. Meyers v. Smith, 31 F; 

S.W.2d 631). But Mr. Oberndorfer’s death occurred after the 

First Primary election of May 5, 1962. The person appointed 

by the Commissioners Court serves only until the General Election 

of November, 1962. His successor will be selected at that election, and will serve out the remainder of Mr. Oberndorfer’s term. 

This situation is clearly not covered: by the Election Code. 

In Brewster v. Massey, 232 S.W.2d 678 (Clv.App. 1950; Mand. overruled) the courts were faced with a Similar Situation. To show 

the sikilarity of situations, we quote from the Court’s statement of the facts, at page 679: 

“Prior to January 1, 1948, /r949 q 

Judge Walter Morris was elected to serve 

a term of four years beginning on Januar:- 2, 1948, flg&g g as Judge pf the 

67th District Court, a district comnosed of the area which comprises Tarrant County. Judge Morris qualified 

and served as judge of such court until h4s death on August 4, 1950. Since 

the year 1950 fell in .the middle of his 

term, and since his death occurred after the Democratic primary election was 

held that year, no one was nominated in 

the 1950 primary election for such office. 

“At the regular state convention of 

the Democratic Party held fn Mineral 
“ . 

Honorable Jules Damlani, Jr., page 5 Opinion No. WW-1384 

Wells on September 12, 1950, Harris Brewster, the relator in this proceeding, was 

nominated by the convention for the office In question as the party nominee to 

appear on the Ncvember ballot. Tne nomination by the convention was made on recommendation of and pursuant to a resolution adopted by v.le state executive 

committee of the party, and the nomination was duly certified by the proper 

officers of the party to the county clerk 

of Tarrant County." 

At page 682, the Court stated: 

II I . . the statutes do not require, 

nor contemplate, that nominations be 

made in the primary election for offices 

which are not expected to become vacant 

at the end of that year. 'There was no 

way a valid nomination could have been 

made in the primary election for judge 

of the 67th District Court in 1950, 

while the Incumbent was still alive 

and serving, and had been elected for 

a term which was not t'o expire until 

the end of 1952. D y an 

And at page 68$, the Cou.rt, held: 

"I?le state convention, under all 

the decisions, Is th? most authoritative body of the party9 at least 

with respect: to a.ff'airs of the party 

within the state, and under the principles which we have referred to undoubtedly has aluthority to attend to 

the business of the party in such way 

as it sees fit, subject to such regulations and limitations as have been 

Imposed by the statutes. There was 

presented to the state convention a 

situation where an important public 

office was to be filled in the general election. S , S Under all the pronouncements of our courts, we feel compelled to hold that the nomination was 
Honorable Jules Damiani, Jr., page 6 Opinion No. W-1384 

valid. . . . The right of the party 

and of all its members to .have a nomlnee on the November ballot cannot be 

ignored,." 

In 1951 the Texas Election Code was enacted, and included 

therein was Art. 6.04, su ra 

office of judge of the zP--* 

When a vacancy occurred in the 

County, 

riminal District Court No. 3 of Harris 

on June 1, 19.58, in the middle of the judge's four year 

term, the Democratic District Committee selected one Love as 

the Democratic nominee for that office. 

cratic State Convention, 

Thereafter, the Demoexecutive committee, 

acting on a resolution by the state 

nominated one Krichamer, as had been done 

in the Brewster v. Massey case, 

S.W.2d -269 (Civ.App., 1958) the ?%%'he$ $zt" ktMi?g:' z:zctlon Code, was the law governing the situation, and'ruied'that 

Mr. Love who had been select,ed by the District Committee was 

the Democratic nominee, and not Mr. Krichamer, who had been 

selected at the state convention. 

'Ihe case of Williams v. Huntress, 153 Tex. 443, 272 S.W.2d 

87 (19.54) presented another situation not covered by statute. 

A new court had been created, the Special 37th District Court 

of Bexar County. By the terms of the statute creating the court, 

such court did nrt come into existence until September 1, 1954. 

Mr. Spears was selected by the Democratic County Convention to 

be the nominee, and Mr. Williams was selected by the Democratic 

State Convention to be the Democratic nominee for such office. 

The Court stated at page 88: 

,I 

. . . We have found no statute 

specifically placing the power of 

appointment for a district office 

where the need for appointment arises 

from the fact that a new office has 

been created In such a fashion that 

the nominee is not selected at the 

regular primary. 

"The law is 'settled that where 

the legislature has not specifically 

regulated party affairs, the party 

itself has the right to prescribe 

rules and regulations governing itself. . . . 

II . . . \ : 
. . 

Honorable Jules Damlani, Jr., page 7 Opinion No. WW-1384 

“We hold that In this situation 

the State Convention had the power 

to select a candidate for district 

office and that it legally exercised 

that ,power. It seems to be uncontroverted that relator does have a regular certificate of nomination from 

the State Democratic Convention.” 

The Court ruled in favor of Mr. Williams, who had been selected 

as the Democratic nominee by the Democratic State Convention, 

While we find no case in which the State Convention of a 

party has selected a nominee for an office, which is purely of 

a county or precinct nature, nevertheless, we are of the opinion 

that the following conciuslons may be drawn from the above cases: 

1. A political party is entitled 

to have a nominee for every office 

which is to ‘be voted on by the people 

at a General ELection. 

2. If the Election Code provides 

a method of selecting such party nominee, the method provided in the Election Code is exclusive, and must be 

followed; otherwise, there will be no 

party nominee for such office. 

3. If the sit.uation is one in 

which there Is no applicable law, 

then ‘IO . e the party itself has 

the right to prescribe rules and 

regulations governing Itself.” 

4. The state convention of a 

political party /)a O s is the most 

authoritative body of the party 

. . e ,wlth respect to the affairs J 

of the party within the state O D . 

and has authority to attend to the 

business of the party in such way as 

It sees fit, subject to such regulations and limitations as have been 

imposed by t.he statutes.” 

In answer to your ‘first q,uestion, we hold that the various 

bona fide political parties have the authority to nominate a 
ii 

Honorable Jules Damiani, Jr., page 8 Opinion No. W'W-1384 

nominee for the office of 

Galveston County, for the 

Oberndorfer, the names of 

Assessor and Collector of Taxes of 

unexpired term of the late John H. . _^ 

sucn nominees to ce printed in their 

respective party columns on the General Election ballot in the 

General Election of November, 1962. Such nominations may be 

,made at the state conventions of such parties, 

While it is not necessary to answer your second question 

in detail, we point out that a method must be provided for voters 

to express their choice by write-in vote, since the voters are 

not required to cast their votes for either a party nominee or 

independent candidates, whose names are printed on the ballot. 

If the voters prefer someone whose name is not printed on the 

ballot at all, the will of the voters must prevail. Note the 

statutory provisions authorizing write-in votes for paper ballots In Art. 6.06, Election Code, 

Sec. 16, Art. 7.14, Election Code. 

and for voting machines in 

SUMMARY 

Where a County Tax Assessor-Collector died in 

office In the middle of his term, during an election year when he was not required to run, after 

the party primary eiectlon has been held, but 

prior to the General Election to be held that year, 

there being no applicable statutes in the Election 

Code governing such a situation in the case of a 

county office, the various bona fide political 

oarties have the authority to nominate nominees 

for such office, the names of such nominees to 

be printed in their respective party columns on 

the General Election ballot as candidates for 

the remainder of the unexpired term of such office. Such nominations may be made at the state 

conventions of such parties. 

A method must be provided for voters to 

express their choice by write-in vote, since the 

voters are not required to cast their votes for 

either a party nominee or independent candidates, 

whose names are printed on the ballot. If the 

voters prefer someone whose name Is not printed 

on the ballot at all, the will of the voters must 

prevail. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 
Honorable Jules Damiani, Jr., page 9 Opinion No. WW-1384 

-Y 

Riley &gene Fletcher 

Assistant 

REF:rk 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

L. P. Lollar 

Sam Stone 

Grady Chandler 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore