Mr. Frank Lake

Secretary of State Austin, Texas Dear Sir: October 19, 1962

OpinionNo. WW-1451 Re: Nominationsby the ConstitutionParty of Texas You request our opinion on three questionswhich relate to whether you should certify as candidates for the general election in November, 1962, the nominees for certain State and District offices certified to you by the ConstitutionParty of Texas.

Your questions are: "1. Are the provisions of Section 1 of Article 13.&'a,Vernon's Texas Election Code, applicable to the Constitution Party of Texas? "2. a) May nominations for district officesbe made by the Constitution Party of Texas at a State Convention? b) If such question is answered in the negative, then in your opinion which of the offices shown on the attached list are district offices?

“3. May suchparty nominate at its State Convention a person for any office other than the specific office set forth in the applicationwhich such person requested that his name be placed before the Convention?" You have furnished a photostatlc copy of: 1. A Certificateof Nomination dated May 28, 1962, signed and sworn to by the Chairman and Secretary ofMr. Frank Lake, Page 2 (OpinionNo. WW-1451)

the ConstitutionParty State Executive Committee. 2. A letter addressed to you dated June 23, 1962, from the State Chairman of the ConstitutionParty and which is signed and sworn to by him. This letter apparentlywas meant to supplement the original Certificate of Nomination hereinabovementioned.

You informus that the Constitution Party did not have a nominee for Governor in the last preceding general election.We answer your questions in their numerical order.

All Articles referred to are those of Vernon's Texas Election Code.

1.

Our answer to your first question is thatArticle 13.47a, Sec. 1, does apply to all of the nominees certified to you. The Constitution Party did not name a nominee for Governor in the last precedinggeneral election. Therefore, it is classifiedas a kind of party designatedb and controlledby Art. 13.46 and not by either Art. 13.$5 or Art. 13.02. The Constitution Party chose to nominate all of its officersby convention,as authorizedby Art. 13.46. Art. 13.47a, Sec. 1, applies to nominationsby any party of the classnamed In Art. 13.46 when that party nominates for state and district offices by convention.

The revision and recodificationof the election laws in 1951 (Acts 52nd Leg., 1951, Ch. 492, p. 1097) by Sec. 223, which is codifiedby Vernon as Art. 13.46 of the Texas Election Code, createda new class of politicalparties. This article reads:

"The State Committee of political partieswhich are not requiredby law tomake nominationsby a primary election shallmeet at some place in the State to be designated by the chairman thereofon the secondMonday in February andMr. Frank Lake, Page 3 (OpinionNo. WW-1451)

shall decide, and by resolution declare, whether they will nominate State, district and county officers by convention or primary elections, and shall certify their decision to the Secretary of State." The only parties required by law tomake nominationsby a primary election are those described in Art. 13.02,which are thosewhich cast 200,000 votes or more for governor at the last general election.

Art. 13.47a, Sec. 1, reads as follows: "Sec. 1. No person shallbe nomi-~ nated by any state,district, or county conventionheld Tursuant toArticles 222, 223 and 224 of this Code unless he has filed with the chairman of the appropriate executive committeean applicationrequesting that his name be placed before the conventionas a candidate for nomination. The application shall conform to the requirements of Article 190 of this Code (Article13.12, Election Code,Vernon's Texas Civil Statutes), and shall be filed in the samemanner and within the time prescribedby thatArticle, except that it shall request that the candidate'sname be placed before the convention insteadof requesting that his name be placed on the general primary ballot." This Article expressly fovernspoliticalparties coveredby Article 13.4 when suchparties shall convention.

2.

Subdivision a) of your second question asks whether of the.class nominate by

nominations for district officesmay be made by the Constitution Party at a State Convention. Our answer is "NC-".

lArtlcles 13.45, 13.46 and 13.47 of Vernon's Texas Election Code.Mr. Frank Lake, Page 4 (OpinionNo. WW-1451)

Articles 13.47, 13.47a and 13.12 all controlnominations for district offices by politicalparties governedby Art. 13.46 when suchparties nominate by convention. These articles require that nominations for district officesby such parties be made at district and not state conventions.

Art. 13.47 requires that, "Nominationsfor district officesmade by suchparties shall be made by conventions held on the Saturdaypreceding the last Tuesday in May . . .' scoringadded). (underWe have alreadyheld in this opinion that the Constitution Party at this time is governedby Art. 13.46. We further hold that the phrase "suchparties" in Art. 13.47 refers to parties governedby Art. 13.46. Art. 13.47a expressly states that any person nominatedby any state, district, or county conventionheld pursuant to Art. 13.46 and 13.47 is subject to itsprovisions and also to the requirements of Art. 13.12. Art. 13.12 expressly requires that requests of persons desiring nomination, II

. . shall be filedwith the State

chairman in the case of state-wide races, with the district chairman in the case of districts consistingof more than one (1) county, and with the county chairman in case of county and precinct officers;

. . .' Subdivision 3 of Art. 13.12 authorizes such requests as to district offices consistingof more than one county to be filed with the chairman of each county composing the district when there is no chairman of the district executive committee. Art. 13.48 requires that,

"Allnominations somade by a State or district convention shallbe certified by the chairman of the State or district committee of suchparty . . .' These articles considered togethermake clear the Legislative intent that nominations for district officesby the Constitution Party in 1962must have been made at a district and not a state convention. Love v. Miller, 316 S.W.2d 269 (Civ. APP. 1958).Mr. Frank Lake, Page 5 (Qpin~ion No. WW-1451)

3. In answer to Subdivisionb) of your second question which asks which of the offices shown on the Certificate of Nomination are district officers:

The classification "state office" IncludesGovernor, Lt. Governor,Railroad Commissioner, Comptrollerof Public Accounts, State Treasurer,Commissioner of General Land Office, and Commissioner of Agriculture. Also the office of Congressman-at-Largeis a state office in that it also is filled by the choice of voters of the entire State.

District offices are those filledby the voters of a district, as opposed to State, county and precinct offices. The office of Congressmanwe hold to be a "districtoffice" even though two of the congressionaldistricts under consideration,Districts 8 and 22, are each composed of a part only of Harris County. Art. 197a,Vernon's Civil Statutes. The geographicalarea from which Congressmenare electzd is designatedby thisArticle as "CongressionalDistricts

. We hold that the office of State Senator and State Representativesare "districtoffices". Art. 193 and 195,V.C.S. Little v. Sta

@, 75 Tex. 616, 12 S.W. 965 (1890);Bounds v. McCallum, 122:,

Tex. 1.16, 52 S.W.2d 1047 (1932);Hamilton v. Monroe, 287 S 287s,w. 306)#.W.304 (Civ.App. 1926, error dism.w.o.j.,

; Love v.Miller, supra.

4. We answer your third question, "No'. Section 1 of Art. 13.47a (supra)prohibits nominationby the Constitution Party of any person for any office other than the office for which he made application. Though neither Art. 13.47a nor Art. 13.12 states expressly that the person filing the applicationmust specify the particular office for which he applies, yet Art. 13.12necessarily implies that a particular office be designated. The applicationunder Art. 13.47amust conform to the requirements of Art. 13.12.

The following authorities are relevant to your consideration of facts not shown on the face of the Certificate of Nomination and other instruments furnished to you. Weatherly v:, 153 Tex. 481, 271 S.W.2d 938 (1954);and Opinions of the Attorney General Nos. V-1529 (next to last paragraph!, and WW-943 ) WW-1359 (1962)

On October 1 we gave to you our oral answers to the foregoing questions. Upon your request,we have restated- .

Mr. Frank Lake, Page 6

those answerswith our written opinion. (OpinionNo. WW-1451)

reasons in support of

SUMMARY 1. The Constitution Party at this them in this

time is one of the class of political parties controlledby Art. 13.46. 2. Nominationsby this party at this time when made by convention are subject to the provisions of Art. 13.47a. 3. Nominationsby this Party for district officesmay be made at a district and not a state convention. 4. The following are "state offices"within contemplationof Art. 13.47a: Governor, Lt. Governor,Railroad Commissioner,Comptroller of Public Accounts, State Treasurer, Commissioner of General Land Office, Commissioner of Agriculture, and Congressman-atLarge. The following are "districtoffices" under the terms of this Article: Congressman, State Senator and State Representative. 5. At its state and district conventions this party could not nominate any person for any office other than the office for which that person had made application pursuant to Art. 13.47a. Very truly yours, WILL WILSON Attorney General of Texas

By: Assistant Attorney General WEA:pwMr. Frank Lake, Page 7 (OpinionNo. WW-1451)

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Iola Wilcox Gordon Zuber

REVIEWED FOR THE ATTORNEY GENERAL: By: Leonard Passmore