### EA EY GENERAL

July 12, 1962

HonorableWilliam J. Lowe County Attorney OpinionNO. ~~-1380 Donley County Courthouse Re: Whether a candidate,who Clarendon, Texas failed to timely file a sworn statement of his campaign contributionsand expenditures,as requiredby Art. 14.08 Election Code, may be certified for the Dear Mr. Lowe: General Election ballot.
Your letter requesting an opinion reads in part as follows:

"Therewere two candidateselected for the run-off for the office of Justice of the Peace in the secondprimary, and the candidatewho won the run-off did not timely file his required list of contributions and expendituresof his campaign. The last date on which the candidate couldhave filed such list was April 27, 1962, but he did not file it until May 4, 1962. "Willyou kindly letme know whether or not such candidate can be certified as the Democraticnominee for such office?" Article 14.08, Texas Election Code, reads in part as follows:

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. "(b) Each candidatewhose name appears on the ballot at a first primary election or a special election and each opposed candidate whose name and whose opponent'sname appear on the ballot at a general election shall file a sworn statement,not less than seven (7) nor more than ten (10)days prior to the day of each such election, of all gifts and loans previouslyreceived and of all gifts, loans and paymentsmade and all debts incurred and obligations incurred orHonorableWilliam J. Lowe, page 2 OpinionNo, ~~-1380

contracted for future use in behalf of such person's candidacy for office. The statement must include all such gifts, loans, payments,debts and obligationsmade or incurredwhether before or after the announced or filed candidacy of such person. Notmore than ten (10)days after the election the candidate shall also file a supplementalsworn statement of all gifts and loans received prior to the election and of all gifts, loans and paymentsmade and debts and obligations incurredprior to the electionnot specifically included in the sworn statement filed prior to the election." As amended Acts 1955, 54th Leg., p. 503, ch. 145, Sec. 1. "(c) Each candidatewhose name appears on the ballot at a secondprimary election shall file a similar sworn statementnot less than seven (7) nor more than ten (10)days prior to the day of the election and a similar supplemental sworn statementnot more than ten (10)days after the day of the election." As amended Acts 1955, 54th Leg., p. 503, ch. 145, Sec. 1. II

. . . "(h) Any candidate falling to file such sworn statementat the time provided or swearLng falsely therein shall forfeithis right to have his name placed upon the bal1o.c

at any subsequentprimary, special, or general election." Acts 1951, 52nd Leg., p. 1097, ch. 492, Art. 244. Thorp v. Murchison, 259 S.W.2d 614 (Civ.App.1953) was an election contest in which appellant tried to take advantage of Section (h) of Art. 14.08, Election Code, and contested the right of the appellee to hold the office of Constablewhich he had won in the GeneralElection, on the ground that appellee was not entitled to have his name on the ballot, sincehe failed to file expense accounts in connectionwith his candidacy for such office during the Democraticprimary. The Court held that Section (h), Art. 14.08 was not available to be used by a defeated candidate to contest the right of the winner of the election to hold office.HonorableWilliam J. Lowe, page 3 OpinionNo. WW-1380

Owen v. Longuemare, 268 S.W.2d 701 (Civ..App. 1954) involved an applicationby relator for a writ of mandamus to compel the County Democratic Chairman to print relator'sname on the Democraticprimary ballot. The County Chairmanhad evidencedhis intention to leave relator'sname off the primaryballot because it had beenmade known to the County Chairman that Relator did not filehis sworn statementof gifts, time required in Art. 14.08. loans and payments at the The Court stated at page 701:

The Court directed that a writ ofmandamus issue to compel the County Chairman to place Relator'sname on the primaryballot.

"In our opinion such Code does not place the responsibilityupon the Chairman of the Committee or the Committee, or authorizehim or it to determinewhether or not Art. 14.08 of the Election Code, V.A.T.S.has been violated, and to refuse to place the name of Relator on the ballot. In our opinion the provision of Art. 14.09 of the Election Code, V.A.T.S., providing for a quo warranto proceeding to enforce the provisions of the statute is exclusive,and such provisionhas not been here invoked or compliedwith."

The case of State ex rel. Butchofskyv. Crawford, 269 S.W.2d 536 (Civ.App.1954) appears to be the first case filed in themanner requiredby the Election Code. The DistrictAttorney brought the suit in the name of the State, in behalf of one Butchofsky, against Crawford, to determine the right of Crawford to have his name placed on the ballot as a candidate for Justice of the Peace. Mr. Crawford then held that office,was seeking Fe-election,and no other personhad filed at the closing date fixed by law for such filing. In 1954, Sec. (b) of Art. 14.08, Election Code, provided that sworn statementsbe filed by candidates at intervals of twenty (20)days, beginning on the 60th day next preceding the day of election. May 25, 1954. The 60th day before the primarywas Mr. Crawford did not file a statementwith the County Clerk on that day, 1954. but did file It at 9 a,.m.onMay 26,

!the Court held thatwith respect to whether a sworn statement was filed at all, the statute is mandatory, and a sworn statementmust be filed..,TheCourt also held that the exact time of filing is directory,but that a candidatemust reasonably and substantiallycomplywith the time of filing. The CourtHonorableWilliam J. Lowe, page 4 OpinionNo. ~~-1380

held that in this instance, the candidatewas only one day late and that he had substantiallycompliedwith the statute. The Court directed County Chairman Longuemare to print the name of the candidate Crawford on the ballot for the Democratic primary. The Court stated at page 542:

"Inholding that the statute ismandatory in requiring a candidate to file this statementand is directory as to the time when such statementmust be filedwe do not mean that a candidatemust not substantially complywith the provisionsof the act as to time of filing this statement. This he must do, and his failure to do so will be grounds for excludinghis name

The Court also stated the reason for requiring sworn statements of expenses, loans and gifts, when it said at page 542:

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. . . The purpose of requiring such statements to be filed is that the same may be open to public inspection that the voters may determinewhat persons are influencingby contributingmoney or credit, or other substantialaid to a candidate, that the publicmay lntelligentlydeterminewhether or not they should support such candidate.

. . .' The first Primarywas held on May .5,1962. If the candidate who was late in filing his expense accounthad not filed such sworn statement until after the Primary electionhad alreadybeen held, it would have certainlyviolated the purpose of the statute as set out above. Whether or not filing such statement on the day before the election, instead of not later than seven (7) days before the election as requiredby the statute, constitutes "reasonable" and "substantial"compliance is a fact question to be determined in the light of all the circumstances. Neither the County Chairman nor the County Executive Committee are authorized to make this determination. The County Chairman and County Executive Committee must certify the name of the candidatewho received a majority of votes insthe Second Primary,without regard to whether ornot he failed to timely file his sworn statementHonorableWilliam J. Lowe, page 5 OpinionNo. WW-1380

c-----~--. --- --- ----- \-, -._- of expenses,gifts and loans as orovided for Sn Sets. (h\ anA (c) of Art. 14.08, Election C Any determinationof these facts, to have

_ _ effect,must be determinedby the courts. ode. Owen v. Longuemare,.supra.

!any legal and binding

SUMMARY The County Chairman and the County Executive Committeemust certify the candidatewho received themajority of votes in the Second Primary as the party'snominee for Justice of the Peace, even though such candidatedid not timely file his sworn statement of expenses,gifts and loans as provided for in Sections (b) and (c),Art. 14.08, Election Code. Whether filing of a sworn statement of expenses, gifts and loans, only one (1) day before the election, instead of at least seven (7)days before the election, constitutes reasonable and substantial compliancewith Sections (b) and (c) of Art. 14.08, Election Code, is a fact question, which can only be determinedby the courts.
Yours very truly,
WILL WILSON Attorney General of Texas

F3F:rk
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Elmer McVey Tom Hunter
REVIEWED FOR THE ATTORNEY GENERAL BY: Le,onardPassmore Riley Ebgene Fletcher Assistant