, .

Hon. John E. Fitzgibbon County Attorney Webb County Courthouse Laredc, Texas Opinion No. M- 1188
Re: Whether, pursuant to Sec. (h)ofArticle 14.08,Texas Election Code, aparty nominee who failed to timely file sworn expense statements isprecluded fromhaving his name placed on the general Dear Mr. Fitzgibbon: election ballot.

Your recent letter requesting ,theopinion of this office concerning the referenced matter states, inpart, as follows:
"Theevents that resulted in this request are as follows: Alfonso 'Poncho' De LaGarza was the Democratic winner of the Second Primaryheld on June 3. 1972, over his opponent, and consequently isnow the Democratic nominee for the office of the County Commissioner of Precinct 1, Webb County, Texas. "TheFirst Primary was held onMay 6, 1972. In accordancewith Article 14.08 of theTexas Election Code, he filed timely on the 20th day ofApril, 1972, an expense account with the County Clerk forWebb County. After such electi,onhewas 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,lea supplemental expense statement

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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 isappearing 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 5thday of July, 1972, the Democratic Chairman sent these statements over to the office of the County Clerk ofWebb County, and such statements were duly filed in such office, on the 5thday of July, 1972
. . . "In the County ofWebb, there will appear on theballot at theGeneral Election aRepublican candidate for the office of the County Commissioner of Precinct 1,ofWebb County, Texas. Therefore, because of the omission of such filings with the office of the County Clerk, the question now being directed to theAttorney General is whether or not Alfonso 'Poncho'De LaGarza is eligible tohave his name placed on theballot 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 byhim, pursuant to Sections (b)and (c)ofArticle 14.08, Texas Election Code, but that he mistakenly filed these statements with the county Democratic chairman, rather than properly filing themwith the County Clerk. Itwas solely for this reason that the statements

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were not timely filedwith 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 inArticle 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,ththeprccedJre stated in Section 245 of this code (Art;cle 14.09>, ofhis right tohave his name placed upon theballot 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 tohave his name placed upon theprimary ballot, or ifnominated in theprimary election, tohave 'hisname placed on the official ballot at thegeneral 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 maybe charged in such proceedings with any such violation
. . .' The foregoing provisions of the Texas Election Code have been construed many timesby the courts of this State, and three decisions are particularly apposite to the facts set forth inyour request.

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

InThorp v. Murchison, 259 S.W.Zd 614 (Tex.Civ.App. 1953, nowrit), Murchison received 24,956 votes for constable of Travis County in the general election. His opponent, Thorp, received 29write-in vo,tes. Thcrp claimed Murchison had failed to complywith Section (b)ofArticle 14.08. InThorp, the court stated that Section (h)ofArticle 14.08was apenalty statute, and therefore, had to be strictly construed (see, also, Ramsey v.,D'Jnloo,146Tex. 196, 205 S.W.Zd 979 (1947)), and that a candidate who received amajority of the votes in the general election did not entitle the candidate with the second highest number of ,votestobe declared elected.

In State v. Crawford, 269 S.W.Zd 536 (Tex.Civ.App. 1954, nowrit)kfa quowarrant0 proceeding, thewinning candidate for iustice thepeace in El Paso County filedhis sworn statement one daypast 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 theArticle:

II’.. . We believe on such consideration of the statute, theword "shall" and "must" asused here is mandatory as to the filing of the statement, but is directory only as to the time when it shallbe filed.
"'Inholding that the statute ismandatory in requiring a candidate to file this statement and is directory as to the time when such statementmust be filedwe 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. Thishemust do, and his failure todo sowill be grounds for excluding his name from theballot, and whether or not the candidate has reasonably and substantially complied with the provisions of the actwill be determined under the facts and circumstances of the case aspresented. II I
. . . The purpose of requiring such statements tobe filed is that the samemay be open to public inspection that thevoters may determine what persons are influencing by contributing money or credit, or other substantial aid to a candidate, that thepublic

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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, notmandatory, and that the test of whether a candidate forfeits his place on the ballot iswhether he has substantially complied so that the public may be informed of the nature and source of his campaign contributions soas to cast an informed vote foror against him. The candidate at issue inyour request, inour 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 inyour request certainly meets the test of Gray v. State, 406 S.W.2d 934 (Tex.Civ.App. 1966, error dism.). InGray, thewinning candidate did not file his sworn statement until sixdays after the primary election. That court stated that:

"Theprime 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 theprovisions of the Code should be decided with due consideration given that objective.
"Aquestion posed by the situation in the case before us relates to themeaning, if any, to be attributed to theword 'knowingly' inArt, 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 forpublic office (ornomination forpublic office) amounts only to awant of 'timely compliance' with the provisions of Art. 14.08(b)
. . .

It* * l "Weare convinced that only in an instance where a candidate would intentionally and culpably delay filing the required statement (inother words when he would do sowith actual or implied knowledge that the electorate would be deceived concerning the identity of those who were aiding him inhis efforts towin

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

a nomination or elective office and/or the amount of aid being received therefrom) that such 'sinof omission' should justify judicial deprivation of any victory won in the subsequent election. Ifwe are correct in this conclusion then theword 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 theduty to certify the candidate who received themajority ofvotes in the second primary, even though the candidate did not timely file his sworn statement pursuant to Sections (b)and (c)ofArticle 14.08.

Inview of the foregoing authorities, and under the facts submitted inyour request, you are advised thatAlfonso "Poncho" DeLa Garza is eligible tohave his name,placed on the ballot in thegeneral election tobe held onNovember 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, butmistakenly filed themwith the county Democratic chairman, rather than the county clerk. Under the circumstances, this office isof the opinion that the candidate hasmet the "substantial compliance" test of previous court decisions, and is eligible to have his name placed on theballot for the general election tobe held on November 7, 1972. trulyyours,

Prepared byAustin C. Bray, Jr. Assistant Attorney General

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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

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