Honorable Jules Damianl, Jr. OpinionNo. 

### Ed-1384

CriminalDistrict Attorney GalvestonCounty Courthouse Galveston, Texas Re:

Dear Mr. Damiani: Whether a politicalparty has authority to nominate a candidatefor the'office of County Tax AssessorCollector to go on the GeneralElection ballot, rrhere the Incumbent Tax Assessor-Collectordied withmore 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

"JohnH. Oberndorferwas - __ elected to the office of Assessor-Collectorof Taxes of Galveston County, for a period of four years, at the General Election In November, 

### 1960.as providedby 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 themiddle of his term of office

. "Thevacancy in the office of AssessorCollector of Taxes has been filled by appointmentby the CommissionersCourt as provided for by Art. 2355, R.C.S. until the next general election.
"The office of Assessor-Collectorof Taxes was not on the ballot at the Democratic Primary election of Saturday,May 5th, 1962."

You have asked the followingquestions!

"As therewasno nominee for the offlee of Assessor-Collectorof Taxes on .Honorable Jules Damianl, Jr., page 2 Opinion No. NW-1384

the May PrimaryElection ballot, the queetlon arises, does any politicalparty (eitherDemocratic, Republican or otherwise) have the authority to meet and nominate a nominee,whose names would be printedupon the OfficialBallot at the ,~ General Election to be held on November 6th, lg62? "Secondly - should the Attorney General hold and/or should a court of competent jurisdictiondecide that a politicalparty does not have the authority to nominate a candidatewhosename would go upon the General Election ballot In November, and further shouldno petition of an Independent candidatebe filed with the county judge, as providedby Art. 13.53, Election Code, would the Electoral Board have the authority to place the office of AssessorCollector of Taxes on the GeneralElection 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 votingmachine laws; GalvestonCounty having adopted and are using votingmachines In all elections?"

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

"If a nominee dies or declineshis nomination, and the vacancy so created shallhave been filled, and such facts shallhave been duly certified in accordance with the provisionsof this Code, the Secretary of State or Cocunty Judge, as the casemay be, shallpromptlynot!fy the officialboard createdby this law to furnish election supplies that such vacancy has occurredand the name of the new nominee shall then be printed upon the officialballot, If the ballots are not alreadyprinted. D e .:
"If a state or district official who is serving a four (4) or a six (6)HonorableJules Damiani, Jr., page 

### 3 Opinion No.

### W-1384

year term should die or resign on the even numberedyear 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 politicalparty in the case of state officersand the appropriatedistrict committee for each politicalparty 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 electionboard to have the name printed on the general elec.- tlon ballot. 0

. .”
Art. 

### 13.56,Texas Election Code, reads as follows:

“A nomineemay decline and annul his nominationby delivering to the officerwith 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,yof them for the State, district or county, as the office to be nominatedmay 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 certificateduly signedand acknowledgedby 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 addewHonorableJules Damlanl,

### Jr.,Page 4 OpinionNo. 

### WW-1384

Art. 

### 6.04,Election Code, provides the procedure to be followed If an-officeholde&who holds a state or district office should d’Feor resiiz ____~- ~..~

~~~ -n In themiddle of his four or six -term. Art. 

### 13.56sets out the procedure to be followed in the case of death of a party nominee, or declination of nomination by a party nominee. Mr. Oberndorferdid 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’sterms of office to expire. No party nominees were selected In the Primary elections of 

### 1962. Had Mr. Oberndorfer’sdeath 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’sdeath occurredafter the First Primary election of May 

### 5, 1962. The person appointed by the CommissionersCourt serves only until the General Election of November, 

### 1962. His successorwill be selectedat that election, and will serve out the remainder of Mr. Oberndorfer’sterm. This situation is clearlynot covered: by the Election Code. In Brewsterv. Massey, 232 S.W.2d 

### 678 (Clv.App.1950;Mand. overruled) the courtswere facedwith 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 

### 67thDistrict 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 .themiddle of his term, and sincehis death occurredafter the Democratic primary electionwas held that year, no one was nominated in the 1950 primary election for such office.

“At the regular state convention of the Democratic Party heldfn Mineral“

.

HonorableJules Damlani, Jr., page 

### 5 OpinionNo. 

### WW-1384

Wells on September 12, 1950,Harris Brewster, the relator in this proceeding,was nominatedby the convention for the office In question as the party nominee to appear on the Ncvember ballot. Tne nomination by the conventionwas made on recommendationof and pursuant to a resolution adoptedby v.le state executive committee of the party, and the nomination was duly certifiedby 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 nominationsbe 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 couldhave been made in the primary election for judge of the 

### 67thDistrict Court in 1950, while the Incumbentwas still alive and serving, and had been elected for a term which was not t'oexpire 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 principleswhich we have referred to undoubtedlyhas aluthority to attend to the business of the party in such way as it sees fit, subject to such regulations and limitationsas have been Imposedby the statutes. There was presented to the state convention a situationwhere an importantpublic office was to be filled in the general election. S , SUnder all the pronouncements of our courts, we feel compelled to hold that the nominationwasHonorable Jules Damiani, Jr., page 6 OpinionNo. W-1384

valid.

. . . The right of the party and of all itsmembers to .havea nomlnee on the November ballot cannot be ignored,."

In 1951 the Texas Election Code was enacted, and included thereinwas 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 themiddle 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 resolutionby 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 Committeewas the Democraticnominee, and not Mr. Krichamer,who had been selectedat the state convention.
'Ihe case of Williams v. Huntress, 153 Tex. 443, 272 S.W.2d 87 (19.54)

presented another situationnot coveredby 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 selectedby the Democratic County Convention to be the nominee, and Mr. Williams was selectedby the Democratic State Convention to be the Democratic nominee for such office. The Court stated at page 88:

,I

. . .We have found no statute specificallyplacing the power of appointment for a district office where the need for appointmentarises from the fact that a new officehas been created In such a fashion that the nominee is not selectedat the regular primary.
"The law is 'settledthat where the legislature has not specifically regulatedparty affairs, the party itself has the right to prescribe rules and regulationsgoverning itself.

. . . II

. . . \ :. .

Honorable Jules Damlani, Jr., page 

### 7 OpinionNo. 

### WW-1384

“Wehold that In this situation the State Conventionhad the power to select a candidate for district office and that it legally exercised that,power. It seems to be uncontroverted that relatordoes 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 Democraticnominee by the Democratic State Convention,
While we find no case in which the State Convention of a partyhas selected a nominee for an office,which is purely of a county or precinctnature, nevertheless,we are of the opinion that the following conciuslonsmay be drawn from the above cases:

1. A politicalparty 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, themethod 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 itselfhas the right to prescribe rules and regulationsgoverning Itself.”
4. The state convention of a political party /)aO s is themost authoritativebody of the party

. . e ,wlthrespect to the affairs J of the party within the state O D

. and has authority to attend to the business of the party in suchway as It sees fit, subject to such regulations and limitationsas have been imposedby t.hestatutes.”

In answer to your ‘firstq,uestion, we hold that the various bona fide politicalpartieshave the authority to nominate aii

HonorableJules Damiani, Jr., page 

### 8 OpinionNo. 

### 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.

. _^ sucnnominees to ce printed in their respectiveparty columns on the General Election ballot in the GeneralElection of November, 

### 1962. Such nominationsmay be ,made at the state conventions of suchparties,
While it is not necessary to answeryour 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 theirvotes for either a party nominee or independent candidates,whose names are printed on the ballot. If the voters prefer someonewhose name is not printed on the ballot at all, the will of the votersmust prevail. Note the statutory provisions authorizingwrite-in votes for paper ballots In Art. 

### 6.06,Election Code, Sec. 16, Art. 

### 7.14,Election Code. and for votingmachines in

SUMMARY
Where a County Tax Assessor-Collectordied in office In themiddle of his term, during an election year when he was not required to run, after the party primary eiectlonhas been held, but prior to the General Election to be held that year, therebeing no applicable statutes in the Election Code governing such a situation in the case of a county office, the various bona fide political oartieshave the authority to nominate nominees for such office, the names of suchnominees to be printed in their respectiveparty columns on the General Election ballot as candidates for the remainder of the unexpired term of such office. Such nominationsmay 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 theirvotes for either a party nominee or independentcandidates, whose namesareprinted on the ballot. If the voters prefer someonewhose name Is not printed on the ballot at all, the will of the votersmust prevail.

Yours very truly,

WILL WILSON Attorney General of TexasHonorableJules Damiani, Jr., page 9 OpinionNo. 

### WW-1384

-Y Riley &gene Fletcher Assistant
REF:rk
APPROVED:
OPINIONCOMMITTEE W. V. Geppert, Chairman

L. P. Lollar Sam Stone Grady Chandler

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore