, . 

Hon. John E. Fitzgibbon 

County Attorney 

Webb County Courthouse 

Laredc, Texas 

Opinion No. M- 1188 

Re: Whether, pursuant to 

Sec. (h) of Article 

14.08, Texas Election 

Code, a party nominee 

who failed to timely 

file sworn expense 

statements is precluded 

from having his name 

placed on the general 

Dear Mr. Fitzgibbon: election ballot. 

Your recent letter requesting ,the opinion of this 

office concerning the referenced matter states, in part, as 

follows: 

"The events that resulted in this request 

are as follows: Alfonso 'Poncho' De La Garza was 

the Democratic winner of the Second Primary held 

on June 3. 1972, over his opponent, and consequently is now the Democratic nominee for the 

office of the County Commissioner of Precinct 1, 

Webb County, Texas. 

"The First Primary was held on May 6, 1972. 

In accordance with Article 14.08 of the Texas 

Election Code, he filed timely on the 20th day 

of April, 1972, an expense account with the 

County Clerk for Webb County. After such electi,on he was required by such article to file a 

supplemental sworn statement, not more than ten 

days after the election. This he failed to do, 

but he did fi,le a supplemental expense statement 

-5797- 
, 

Hon. John E. Fitsgibbon, page 2, (M-1188) 

with the Democratic County Chairman on the 11th 

of Hay. 1972. Article 14.08 also requires a 

candidate whose name is appearing on the ballot 

at the second primary to file a similar sworn 

statement with the County Clerk not less than 

seven days nor more than ten days prior to the 

election, and a similar supplemental sworn statement not more than ten days after the election. 

He failed to file such statement with the County 

Clerk prior to the election, and failed to file 

such statement after the election. He did, however, file a statement with the Democratic Chairman prior to the second primary on the 24th day 

of Nay, 1972, and filed a statement after the 

election with the Democratic Chairman on the 7th 

day of June, 1972. On or about the 5th day of 

July, 1972, the Democratic Chairman sent these 

statements over to the office of the County 

Clerk of Webb County, and such statements were 

duly filed in such office, on the 5th day of 

July, 1972 . . . 

"In the County of Webb, there will appear 

on the ballot at the General Election a Republican candidate for the office of the County Commissioner of Precinct 1, of Webb County, Texas. 

Therefore, because of the omission of such filings 

with the office of the County Clerk, the question 

now being directed to the Attorney General is 

whether or not Alfonso 'Poncho' De La Garza is 

eligible to have his name placed on the ballot in 

the November general election . . .II 

The above facts recite that the candidate at issue 

timely prepared all legally required sworn statements of 

contributions received by him, pursuant to Sections (b) and 

(c) of Article 14.08, Texas Election Code, but that he mistakenly filed these statements with the county Democratic 

chairman, rather than properly filing them with the County 

Clerk. It was solely for this reason that the statements 

-5798- 
Hon. John E. Fitsgibbon, page 3, (M-1188) 

were not timely filed with the County Clerk. Your request must 

be viewed, therefcre, in light of this salient fact. 

The penalty for failing to timely file the sworn 

statements with the County Clerk is set forth in Article 14.08, 

Texas Election Code, as follows: 

-'[h) Any candidate failing to file such sworn 

statement at the tim? provided or swearing falsely 

th?eebn~ sh,a1.1 be jub3ect to forfeiture, in accordani!:! wi,th the prccedJre stated in Section 245 of 

this code (Art;cle 14.09>, of his right to have 

his name placed upon the ballot at any subsequent 

runoff or general election which would be necessary 

for nomination or election to the term of office 

which the candidate is seeking." 

Article 14.09, Texas Election Code, provides, in 

pertinent part, as follows: 

"Any candidate who shall knowingly permit or 

assent to the violation of any provision of this 

Chapter by any campaign manager or assistant campaign manager, or other person, shall thereby 

forfeit his right to have his name placed upon 

the primary ballot, or if nominated in the primary 

election, to have 'his name placed on the official 

ballot at the general election . . . 

"Proceedings by quo warrant0 . . . may be 

instituted at the suit of any citizen in the 

district court of any county . . . against any 

candidate who may be charged in such proceedings 

with any such violation . . .' 

The foregoing provisions of the Texas Election Code 

have been construed many times by the courts of this State, 

and three decisions are particularly apposite to the facts 

set forth in your request. 

-5799- 
Hon. John E. Fitzgibbon, page 4. (M-1188) 

In Thorp v. Murchison, 259 S.W.Zd 614 (Tex.Civ.App. 

1953, no writ), Murchison received 24,956 votes for constable 

of Travis County in the general election. His opponent, Thorp, 

received 29 write-in vo,tes. Thcrp claimed Murchison had failed 

to comply with Section (b) of Article 14.08. In Thorp, the 

court stated that Section (h) of Article 14.08 was a penalty 

statute, and therefore, had to be strictly construed (see, 

also, Ramsey v., D'Jnloo, 146 Tex. 196, 205 S.W.Zd 979 (1947)), 

and that a candidate who received a majority of the votes in 

the general election did not entitle the candidate with the 

second highest number of ,votes to be declared elected. 

In State v. Crawford, 269 S.W.Zd 536 (Tex.Civ.App. 1954, 

no writ) 

kf 

a quo warrant0 proceeding, the winning candidate for 

iustice the peace in El Paso County filed his sworn statement one day past the time limit required by Section (b) of 

Article 14.08. The Court of Civil Appeals adopted the opinion 

of the trial court, and held as follows concerning Section (h) 

of the Article: 

II’. . . We believe on such consideration of the 

statute, the word "shall" and "must" as used here is 

mandatory as to the filing of the statement, but is 

directory only as to the time when it shall be filed. 

"'In holding that the statute is mandatory in 

requiring a candidate to file this statement and is 

directory as to the time when such statement must be 

filed we do not mean that a candidate must not 

reasonably and substantially comply with the provisions of the act as to time of filing this statement. 

This he must do, and his failure to do so will be 

grounds for excluding his name from the ballot, and 

whether or not the candidate has reasonably and substantially complied with the provisions of the act will 

be determined under the facts and circumstances of the 

case as presented. 

II I . . . The purpose of requiring such statements 

to be filed is that the same may be open to public 

inspection that the voters may determine what persons 

are influencing by contributing money or credit, or 

other substantial aid to a candidate, that the public 

-5800- 
, I 

Hon. John E. Fitzgibbon, page 5 (M-1188) 

may intelligently determine whether or not they should 

support such candidate . . .I" 269 S.W.Zd at 542. 

(Emphasis added.) 

Thus, the Crawford court held that Section (h) of Article 

14.08, insofar as it relates to the time of filing, was directory, 

not mandatory, and that the test of whether a candidate forfeits 

his place on the ballot is whether he has substantially complied 

so that the public may be informed of the nature and source of 

his campaign contributions so as to cast an informed vote for or 

against him. The candidate at issue in your request, in our 

opinion, has met the criteria of the Crawford decision, inasmuch 

as his sworn statements are now duly filed with the County Clerk 

several months prior to the general election. 

Moreover, the candidate at issue in your request certainly meets the test of Gray v. State, 406 S.W.2d 934 (Tex.Civ.App. 

1966, error dism.). In Gray, the winning candidate did not file 

his sworn statement until six days after the primary election. 

That court stated that: 

"The prime legislative aim in the enactment of 

the Election Code of the State of Texas was 'that the 

will of the people shall prevail and that true 

democracy shall not perish from the Lone Star State.' 

V.A.T.S., Election Code, Art. 1.01. Any question 

arising under the provisions of the Code should be 

decided with due consideration given that objective. 

"A question posed by the situation in the case 

before us relates to the meaning, if any, to be 

attributed to the word 'knowingly' in Art, 14.09 

of the Election Code as applied to an occasion of 

'nonfeasance', i.e., when the guilt or fault on the 

part of the candidate for public office (or nomination 

for public office) amounts only to a want of 'timely 

compliance' with the provisions of Art. 14.08(b) . . . 

It* * l 

"We are convinced that only in an instance where 

a candidate would intentionally and culpably delay 

filing the required statement (in other words when he 

would do so with actual or implied knowledge that the 

electorate would be deceived concerning the identity 

of those who were aiding him in his efforts to win 

-5801- 
. . 

Hon. John E. Fitzgibbon, page 6 (M-1188) 

a nomination or elective office and/or the amount of 

aid being received therefrom) that such 'sin of 

omission' should justify judicial deprivation of any 

victory won in the subsequent election. If we are 

correct in this conclusion then the word or term 

'knowingly' . . . would mean that such delay or 

omission was caused or permitted in an attempt to 

influence the election." 406 S.W.2d at 935-36. 

The rationale of the foregoing three court decisions 

is also supported by Attorney General's Opinion No. W-1380 

(1962), which held that a county Democratic chairman and a 

county Democratic executive committee had the duty to certify 

the candidate who received the majority of votes in the second 

primary, even though the candidate did not timely file his sworn 

statement pursuant to Sections (b) and (c) of Article 14.08. 

In view of the foregoing authorities, and under the 

facts submitted in your request, you are advised that Alfonso 

"Poncho" De La Garza is eligible to have his name,placed on the 

ballot in the general election to be held on November 7, 1972. 

SUMMARY 

In the instant fact situation, the candidate 

at issue timely prepared all required sworn statements, as required by Article 14.08, Texas Election 

Code, but mistakenly filed them with the county 

Democratic chairman, rather than the county clerk. 

Under the circumstances, this office is of the 

opinion that the candidate has met the "substantial 

compliance" test of previous court decisions, and 

is eligible to have his name placed on the ballot 

for the general election to be held on November 7, 

1972. 

truly yours, 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

-5802- 
Hon. John E. Fitzgibbon, page 7 (M-1188) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Jim Swearingen 

Bill Flanary 

Bob Gauss 

Scott Garrison 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-5803-