June 23. 1952 

Hon. J. R. Alamia Opinion No. V-1472 

Criminal District. Attorney 

Hidalgo ;county Re: Procedure for nominaEdinburg,. Texas tion of sheriff where 

unopposed candidate 

dies before primaryand 

before assessment is 

Dear Sir:~ paid. 

Your request for an opinion is based on the following 

facts: 

.W. R. Doan. Sheriff of Hidalgo County, unopposed as 

candidate for re-election. died on June 17, 1952. He had regularly filed as a candidate in the Democratic primary to be 

held on July 26 of this year. The Hidalgo County Democratic 

Executive Committee set the filing fees for the ‘candidates in 

that election on June 16. 1952, as it was required to do under - 

Section 186 of the Election Code. On the evening of June 16. 

Mr. Doan authorized and directed his chief deputy to pay his 

filing fee. Mr. Doan died at. 7:20 A.M. on June 17.. No filing 

fee has yet been paid by Mr. Doan or anyone else for the office of Sheriff of Hidalgo County. 

Section 186 of the Election Code provides that assessments made, by the county executive committee for this~year’s’ 

primary must be paid on or before June 21.1952. Section 193 

provides that no person’s name shall be placed on the ballot 

who has not paid the amount assessed against him. The official ballot for the primary will be made up on June 23. 1952. 

according to Section 192. 

Based on these facts, you ask the following questions: 

li Can anyone legally pay the filing fee of W. R. 

Doan? 

2. Should the name of W. Fl. Doan be placed upon the 

ballot as a candidate for sheriff at the Democratic primary if 

someone pays his filing fee? 

3. If the filing fee should not be paid, can the name of 

W. R. Doan be placed on the ballot? 
sggj Hon. J. R. Alamia. page 2 (V-1472) 

4. If his name is placed on the ballot and if the should 

receive a majority of the votes, what procedure should be followed in designating the Democratic nominee in the general 

election? 

: 

/ 

/ 

Sections 186 and 193 of the Election Code do not specifically state that the assessment against a candidate for his . 

share of the primary expenses must be paid by him personally. Section 186 provides that the county executive committee 

“shall, by resolution, direct the chairman to immediatelymailtoeach person whose name has been requested to be .placed on the official ballot a statement 

of the amount of such expenses so apportioned to him, 

with the request that he pay the same to the county 

chairman on or before the Saturday before the fourth 

Monday in June thereafter. It shall be sufficient to 

‘meet the requirements of this law to mail by registered letter to the chairman before the deadline herein provided. as shown by the postmark on the letter, 

a money order, a certified check, or a good personal 

check.” 

‘Section 193 reads: 

.‘No person’s name shall be placed on the ballot 

of a district. county or precinct office who has not 

paid to the county executive committee. the amount 

of the estimated expense of holding such primary 

apportioned to him by the county executive committee as hereinbefore provided. . ‘. .* 

-,We do not think the language of either of these sections 

requires personal payment by the candidate himself. It may be 

noted that Section 190 of $.he Election Code permits others to 

file the request, on behalf of a candidate, for a place on the ballot. So it would not be’ contrary to the general scheme of these 

filing provisions to allow payment of the candidate% filing fee 

by someone else. However, in this connection the provisions 

,of the Election Code relating to campaign expenditures must 

also be considered. Section 239 reads, in part: 

“No candidate,‘campaign manager, nor assistant champaign manager shall by himself or by any 

other person, directly or indirectly, make or authorize any other person, tie make any campaign expenditure except for the following purposes only. to wit: 
Hon. J. R. Alamia, page 3 ~-(V-1472) 

~‘b.’ The payment of fees or charges for pbcing the name .of the candidate upon the :primary ballot, and for holding and making returns of the election.’ 

-: 

It is seen from this provision that the assessment 

for having the candidate’s name placed on the primary ballot is classified as a campaign expenditure. Clearly, the 

payment of the assessment could Abe made either by the candidate himself or by a campaign manager who had been appointed in accordance with Section 238 of the Election Code. 

It is our .opinion that the assessment could also be paid by 

an agent upon authorization by the candidate or the campaign manager. 

Under the present facts, the candidate before his 

death had authorised.an agent to make the payment for him. 

The question presents itself., was this authorization revoked 

by the death.of the candidate before the payment was made? 

The general rule is that the authority of an’agent ceases upon the death of the principal; and this would’seem to be the 

rule even though the agency is for the performance of a 

specific act. .Cleveland v. Williams, 29 Tex. 204 (1867); 

Crow v. Day, 96 S.W.Zd 100 (Tex. Civ. App. 1936). Under the 

rule announced in these cases, we must hold that the agent 

designated by .Mr. Doan before his death now has no authority-as such to act for. Mr. Doan in making this payment. 

As to whether anyone other than the candidate himself, his campaign manager, or an agent of one of these persons may pay the assessment, the answer must be found in 

the provisions of Section 240 of the Election Code. Subsection (b) of this section provides: 

“It shall be lawful for any person to expend 

a Amy which shall not in the aggregate exceed 

Twenty-five Dollars ($25) for postage. or telegraph or telephone tolls, or for costs of any 

correspondence, or any other lawful purpose 

out of his own furiiidate, where the sum is not to be repaid to him.” 

(Emphasis added;) . .’ 

Our understanding of this provision is that a number 

of persons may join together to pay for a single item of expense so long as no one person exceeds a total of $25 for 

that and all other purposes during the campaign. Since the 

payment of the assessment would constitute a lawful purpose. 

we think it would be lawful for the assessment to be paid in 

this manner. 
r_s ;,r: 

rs: ‘*1 Hon. J. R. Alamia. page 4 (V-1472) 

In your second question you ask whether Mr. Doan’s 

name should be placed on the ballot in the primary election 

if someone pays his filing fee. 

In adopting the Election Code, the Legislature added 

a new paragraph to the former statute, the new paragraph 

reading as follows: 

*If a candidate in the first primary dies after 

the deadline for filing, his name shall be printed 

on the primary ballot and the votes cast for him 

shall be counted and returned for him. If such a 

deceased candidate receives a majority of the 

votes, the proper executive committee shall 

choose a nominee and certify such name to the 

County Clerks concerned to be printed on the 

general election ballot. If such a deceased candidateis one of the two (2) highest candidates 

in that race in the first primary and if no one 

has a majority vote. the two (2) living candidates 

withthe highest votes shall be certified to have 

their names printed on the second primary bal- 

. lot.’ 

We thinkyour fact situation comes squarely within 

this provision. While a candidate’s name cannot appear on 

the ballot unless he pays the amount of then expenses assessed 

to him, the ~status of a candidate for a county office’bas become fixed before the time for payment of the assessment. 

In other words, payment of the assessment is not a condition. 

precedent to his being a candidate within the meaning of Section 104.. 

Our interpretation of this provision of Section 104 is 

that the death of the candidate shall not cause his name to be 

removed from the ball,ot. It does not mean that the deceased 

candidate’s name must be placed on the ballot even though he 

would have been ineligible to have his name on the ballot if he 

had lived. We do not believe Section 104 was intended to obviate the necessity for payment of the asses~sment for expenses 

of holding the. election. If the candidate had lived, his name 

could not,have been placed on the ballot unless the assessment 

was paid. We are of the -opinion that the fee must still be paid. 

after his death, if his name is to appear on the ballot. Consequently, we answer your second .question ‘Yes”; and your third 

question--whether Mr. Doan’s name may be placed on the ballot if the fee is not paid-- we.answer “No.” 
‘Hon. J. R. Alamia, page 5 (V-1472) I-,‘.. &;t 3 

In your fotirtb question you’ask’what procedure 

should be followed: in designating the Democratic nominee 

in the general election, in the event Mr. Doan’s name is 

placed on the primary ballot and he receives a majority of 

the votes. Section 104 states’that if such deceased candidate receives a majority of the votes, the ‘proper executive 

cdmmittee shall choose a nominee and certify such name to 

the County Clerks concerned to be. printed one the general 

e&action ballot.’ : 

Section 233 of the Election Code, which deals with 

.nomination by’an executive committee where the nominee 

dies after the primary.. provides in part: 

. .:. the executive committee of a party, 

or a majority of them for the State, district or 

county, as the office to be nominated may require. may nominate a candidate to supply the 

vac~ancy by filing withthe Secretary of State in 

the case of State or district officer, or with the 

county judge. in the case of county or precinct 

officer, a certificate duly signed and ~acknowl; 

edged by them, setting forth the cause of the 

vacancy, the name of the new nominee, the office for which he:was nominated and when and 

.how he was nominated.” 

It is our opinion that the selection of a nominee for a ,county 

office under .Section 104 should be made by the county executive committee, as is prwided in Section 233. 

Section 233 provides that the certiiication is to be 

made to the county judge in the case of a county office, wherea6 Section 104 provides that the certification is to be made to 

the county clerk. The reason for the difference in these certification requirements for county offices is apparent when we 

consider them along with Section 203. That section prwides 

that the county executive committee shall certify to the county 

clerk the nominees selected at the primary. Since under- 

-104 the candidate’s death has already occurred, if the committee so desired it could select a new nominee at the same 

meeting at which the election results are canvassed and certify his name along with the other nominees regularly selected 

at the primary. In any event the name of the new nominee 

should be certified to the county clerk not later than 30 days 

before the general election (10 days before commencement of 

absentee voting). See Sec. 210, Election Code; Austin vr City 

of Alice, 193 S.W.2d 290 (Tex. Civ. App. 1947. error ref. n.r.e.). 
Hon. J. R. Abmia. page 6 (V-1472) 

The committee should include in the certificate a recitation 

of the circumstances under which the new nominee was selected, as set out in Section 233. 

SUMMAFtY 

Under Sec. 104. Election Code. the name of 

a candidate for a county office in the first primary who dies after the deadline for filing, but 

before the assessment of his share of the election expense is paid, should be printed on the pri- 

~mary ballot if the assessment is subsequently 

paid within the time prescribed by Sec. 186. Election Code. In such a case, the assessment may be 

paid by other persons in accordance with subset. 

(b) of Sec. ~2.40. If the deceased candidate becomes 

the party nominee, the county executive committee 

may name a new ,nominee for the general election. 

Yours very truly, 

i APPROVED: ~b PRICE DANIEL 

J. C. Davis,‘Jr. 

Attorney General 

County Affairs Division 

E. ,Jacobson ,,. 

Reviewing~ Assistant 

Charles D. Mathews 

First Assistant 

%2@& BY a? 

Mary K. all 

Assistant 

MKW:wb:b