OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

AUSTIN 

Bonorable E. L. Dunoan 

County Attonmy 

Nolan County 

Sweetwater, Toxae 

Dear sir: 

of nlto-in u naiirt in De7llocretio 

0 hio name priatoa 

ent oanaidate ?or 

a ballot r0r the 

or 4th wherrln you 

wa6 a write-in 

primary my have 

r the g6noral aleetioa aa 

opendent, or non-parthan 

Civil Statutee, lQ28, prenaent 6anaiafh98 t0 hare 

oial ballot for general 

omxal4atee for 0rfio0 at a 

own sleotlon may have their 

on the official ballot on appli- ‘~ 

.county ~0ry or town orBan6 foml an4 

rein preaorlbea 

for applicationa to be made to the Yeoretery of 

State in oaae of State or diatrlot lndepandent nomination; providad, that a petition 0r five par oent 

or the entire vote cast In euoh county, oity or 

town at the last general eleotlon shall be required 

ror such nom2riatiOn.” 
Honorable 5. L. Duncan, Rage 2 

The above quoted statute in -providing *auoh applfcation being in the 881~8 form and subject to the same requuirements heroin prescribed for applloationa to bo mada to 

the Seoretflry 0r State in case of State or distrlot lndepenaent nomInatlcn* lncorporatss by reference the following 

clause contained in Article 3159, which reads: 

” . 

who has &d 

and provided, alao, that no parron 

at a primary eleotlon ahall sign 

an application in favor of anyone r0r an 0fri00 

for which a nominctlon was made at such primary 

electIoh.* 

In order to meet the roquleltea proaoribod by tho 

roregolng statute, It is noceasarp that ths Independent oandldate for sheriff present to the oounty judge a petition 8Igned 

by a aurflclent number of qualified votera 0r tho oounty to 

equal floe per cent of the entlro vote oast in aald county at 

the last general eleation, and that all of such slgnatorlos 

have not voted in the last Demooratlo primary oleotlon. 

Aaauming that the oandldata hae met thoao raqulraBlents, wa come now to a conelderatlon of the qua&Ion of whrther he 1s entltled to have his name prInted on the ballot at 

the general election as an lndspendent oandldate, even though 

he partlolpated aa a candidate, and presumably also a6 a voter, 

in the Demooratio primary at which the Damooratlo nominee for 

the orfioe of shsrlfr was selaotsd. 

Artiols 3110, Revised Civil Statutes, 19&S, provides 

for the party pledge to be printed on ballots on primary ela~otion and reads as follows: 

“No 0rfi0iai ballot r0r primary eleatlon ehall 

have on It any symbol or devioe or any printed matter, except a unir0nfi primary test, roadfng as follows: ‘I am a (inserting name of polltlcal 

party or organlmof which the voter ia a member) 

and pledge myself to support the nomlnae of this primary;’ and any ballot which ahall not contain such 

,prInted test above the namea of the candidates thereon, shall be void and shall not be oountod.” 

The Supreme Court of Texan has re~peatedly held that 

the pledge *to support the nomlnso of this primary,* contained 

on the primary ballot a 8 provided by Article 3110, supra, imposes merely a moral and not a legal obligation on the Voter. 
. 

Eonorabla E. L. Dunoan, Face 3 

8.0 Kay v. Sohnolder, 110 Tex. 359, 2l6 8. W. 479, E21 S. 

w. 6601 westorman v. Mlms, 111 Tax. 29, 227 S. W. 1781 Lwa 

v. Wll~o~, 119 Tax. 256 28 9. w, (2d) 515; Lovo v. Buokaor, 

121 Tox. 369, 49 6. W. [24) 425. 

In tho oasa of Westerman v. lcIm#, nuBa, tho supram0 OouHi of Toxaa had before it a question eimilar to the 

ona hors under oonsldaratlon. In that ca6e the roqui8Ito 

aumbor of qua1Ifi.d 9Otorr of Oalraston Count 

f 

who had not 

participated in the Democratic primary, petit aaed‘tbt tho 

name of aubroy Fuller be printed a8 an Indapandont oandldata 

for alstrlat judge on the general election ballot. AubmJ 

Nlor had partlolpated and voted in the Demooratlo primaof that year, at which the Demooratio candldeto Par dirtriot 

judge was nomlmtsd. The cult waa an original l pplioation 

to tho supreme Court for a writ o? numdamus to acmpel the 

Seoratary of State to issue his Inettructionr to tho County 

Clerk dlreotlng that the name of Fuller be prlatod in tha Indepandont column of the OffIOIal ballot. Tha Supz%tm~.Court 

denied the mandamus. The entire oourt oonourred. In the rorult, but Mr. Chief Justice Phillips based hlr daolelon on 

the ground thet the statute preroriblng tho party pl 

1 

dgo to 

support ths nominees of thet party Impo8ass legal du jr upon 

him. Said Judge Phllllpe, at pago 4E!l 

"In virtue of the statutes, the duty to,perform 

tha agraamant booam a legal duty; the right cf Judge 

Street (the Damooratlo nomlhoa for district judge) 

ar a benaflalarp of the duty beoame a legal right; 

and it would oommand the law'8 protaotlon a8 any 

other lagal right.* 

Tho majority of the oourt, however, a8 expraseed In the opinion by bfr. Juetloa Greenwooa, reoognlerd the rule laid aown in 

Kay v. Sohnalder, 110 Tex. 359, Z18 6. W. 479, that tho pledge 

to mupport the party oandidata lmpoaee marely a moral and not 

a legal obligation on %he voter. 

Xr. Juetlor Gremwood dsolared at page 38: 

*In our oplnlon a voter oannot take part in 

a primary or oonvention 0r a party, to name party 

nomlneor, wlthout assuming an obligation binding on 

the voter's honor and coaaclenoe. Suoh obligation 

inhere8 in the very nature of his eat, entirely re- 
Eonorabls x. t. Duos, Fags 4 

gardlsss of any sxprsss~plsdgs, and sntlrsly rsgsrdless OS ths requirsmants of any statute. The 

obligation, like the promlss sxaoted by the ststuts, 

whsn treated as governing future conduot, Is for oooperation in good faith to ssours ths suooess of the 

nOdMe. Thers Is no reasonably oertaln measure of 

bona fide cooperation in matters of this sort. The 

votsr's oonduot must bs detsrmlnsd largely by his 

own peouliar senso of propriety and of-right; Xt la 

ror suoh rsssons that the oourts do not undsrtsks to 

oompal psrrormsnoa o? the obligation. Bslng unsntoroeable through the oourts, the obligation Is a 

moral obligation. . . . 

“We do not say that oiroumstanoes might not aria. 

under whloh ens wbo had p!irtloipatsd in a primary 

would be rsllered of ths moral obligation which is 

ordinarily lnourrsd not to undertake the nomInso*s 

defeat. The present ease doss not call for ths dstsrminstion of the atfeot ot extraordinary olroumstan0es.w 

Mr. Justlos Orssnwood’s opinion dmlsd the matidamu 

on the grounds that the oandldate having vIolatO@ hlo party 

pledge by soeking to bsoome sn lndspsndent candidate at the 

general elsotlon did not OCIPS into a oourt of squlty with 

~olsan handew and thsrofors his applloation for mandamus was 

denied. We oontlnue to quota from the opinlonr 

gearing concludqd that the petition of relatbrs Is grounded on Conduot amounting to 811 lnritation to, and hsnae partlolpation In an aot tlolatirs 

of good faith and OS oonsolonoe, It rollows that relators did not ooms into oourt with aloan hands, a6 

required to entitle thsm to.@s relief prayed for, 

and hence the mandsmus Is d@i'Isd." 

Under the opinion or the ms 

?J 

ority or the oourt in 

Westerman v. Maims, the Demooratio no me has no lsgally snioroeable rlghts in the matter. Wor does ths man who seeks 

to have his name plaoed on the ballot as an independent candldate. In neither case will a mandamus or sn lnjumtion aotion 

lie either to place the aandidate*s name on the tlakst or prevent its being plaoed thsreon. 

Under ths authority of Weatanuan v. YIms, thsrsfors, 

we ara oompellsd to advise you that whether ths'name of Inds- 
484 

*. 

~~ gonoreble :. L. Dunoan, J?eage 5 

p8ndc:nt candid,?t& for sheriff ehculti b? placed on the general 

election bnllot under these ciraumetanccs, Ii: a quectlon to 

; 

be determined by the County Judge. Xle d&oisiOn In the matI ter, In the obsenoe of the exceptional circuzetances referred 

to by Er. Justice Greenwoo:: in the last above ?uotatIon, will 

net be disturbed by the OourtL. He nay base hiu deoislon upon 

Ed detx-mlnatlon of the question of whether cIrcu:ietenoes exist 

(in the vior6s of M.r. Justice Grsenwoti ) Wn$er which one who 

had particlpetsd in a primary would be relieved of the morel 

obli@tIon which le ordlnsrily Incurred not to undertake the 

noml.nse*s 6efaat.” 

ii&plying spe~lficnlly to your questlon, we are of 

the opj.nIon the.t it rests within the dl,so:&tIon of the oounty 

judge whether he will accept the application for the name of 

an Independent oandidate for sherlf f to be printed on the ballot for the general eleotion, where such candidate partiolpeted 

8s a voter or ckndldets in the preceding Drmooratlc primary 

k, eleotlon. Fe wish to point out aRain that such applioatlon, in 

order to meet the requirements of ArtIolss 3159-3162, mu&t be 

signed under oath by n sufficient number of qualified voters 

of the county who did. not partI,cipnte In the primary election 

1, to equal five per oent of the votes cast In the oounty at the 

lest general elsotlon. 

YOWS Very tNly 

%IFK : BBB 

By~&%?~h~ . 

Assietant