June23. 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 onthe 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. Onthe 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 ofthe Election Code provides that assessments made,by the county executive committee for this~year’s’ primary must be paid on or before June21.1952. Section 193 provides that no person’s name shall be placed onthe ballot who has not paid the amount assessed against him. The official ballot for the primary will be made up on June23. 1952. according to Section 192.

Based onthese 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 uponthe ballot as a candidate for sheriff at the Democratic primary if someone pays his filing fee?

3. Ifthe filing fee should not be paid, can the name of W. R. Doanbe placed onthe ballot?

## sggj Hon. J. R. Alamia. page 2 (V-1472)

4. Ifhis name is placed onthe ballot and iftheshould receive a majority of the votes, what procedure should be followed in designating the Democratic nominee in the general election?

:

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

. share of theprimary expenses must be paid by him personally. Section 186provides thatthe 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 ofthe 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 Junethereafter. 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 onthe letter, a money order, a certified check, or a good personal check.”

‘Section 193 reads:

.‘No person’s name shall be placed onthe ballot of a district. county or precinct office who has not paid tothe county executive committee. the amount ofthe estimated expense of holding such primary apportioned to him by the county executive committee as hereinbefore provided.

. ‘

. .* -,Wedo not think the language of either of these sections requires personal payment by the candidate himself. It may be noted that Section 190 of $.heElection Code permits others to file the request, onbehalf of a candidate, for a place ontheballot. So itwould 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 ,ofthe Election Code relating to campaign expenditures must also be considered. Section 239 reads, in part:

“No candidate,‘campaign manager, nor assistant champaignmanager shall by himself or by any other person, directly or indirectly, make or authorize any other person, tiemake any campaign expenditure except for the following purposes only. to wit:Hon. J. R. Alamia, page 3 ~-(V-1472)

~‘b.’ The payment offees or charges for pbcing the name .ofthe candidate uponthe:primary ballot, and for holding and making returns of the election.’ -: Itis seen from this provision that the assessment for having the candidate’s name placed onthe 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 ofthe Election Code. Itis our .opinionthat 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 hadauthorised.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 thatthe authority of an’agent ceases upon the death of the principal; and this would’seem to be the rule even thoughthe 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. Doanbefore his death now has no authority-as such toact for. Mr. Doan in making this payment.

As to whether anyone other thanthe 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 ofthe Election Code. Subsection (b) ofthis section provides:

“It shall be lawful for any person to expend aAmy 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 outof his ownfuriiidate, where the sum is not to be repaid to him.” (Emphasis added;)

. .’
Our understanding of this provision is that a number ofpersons may join together to pay for a single item of expense so long as no one person exceeds a total of $25 for that andall other purposes during the campaign. Since the payment of the assessment would constitute a lawful purpose. we thinkit 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)

Inyour second question you ask whether Mr. Doan’s name should be placed ontheballot in the primary election if someone pays his filing fee.

Inadopting 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 onthe primary ballot andthe votes cast for him shall be counted and returned for him. If such a deceased candidate receives a majority ofthe 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. Ifsuch a deceased candidateis one of the two (2) highest candidates inthat race inthe 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 onthe 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~statusof a candidate for a county office’bas become fixed before the time for payment ofthe assessment. Inother words, payment of the assessment is not a condition. precedent to his being a candidate within the meaning of Section 104..
Our interpretation ofthis provision of Section 104is thatthe death of the candidate shall not cause his name to be removed from the ball,ot. Itdoes not mean thatthe deceased candidate’s name must be placed onthe ballot even though he would have been ineligible to have his name onthe ballot if he hadlived. We do notbelieve Section 104was intended to obviate the necessity for payment of the asses~sment for expenses of holding the.election. Ifthe candidate had lived, his name could not,have been placed onthe ballot unless the assessment was paid. We are ofthe-opinionthat the fee must still be paid. after his death, if his name is to appear onthe ballot. Consequently, we answer your second .question ‘Yes”; and your third question--whether Mr. Doan’s name may be placed onthe ballot if the fee is not paid-- we.answer “No.”‘Hon. J. R. Alamia, page 5 (V-1472) I-,‘

.. &;t 3

Inyour 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 onthe 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&actionballot.’ :

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, 

### ora 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~ancyby filing withthe Secretary of State in the case of State or district officer, 

### orwith the countyjudge. 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 andwhen and .howhewas 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 thatthe 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 thatthe 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. Inany event the name ofthe new nominee should be certified to the county clerk not later than 30 days before the general election (10days before commencement of absentee voting). See Sec. 210, Election Code; Austin vr City ofAlice, 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 inthe first primary who dies after the deadline for filing, but before the assessment ofhis share of the electionexpense is paid, should be printed onthe pri- ~maryballot if the assessment is subsequently paidwithin the time prescribed by Sec. 186. Election Code. Insuch a case, the assessment may be paid by other persons in accordance with subset. (b) of Sec. ~2.40. Ifthe 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

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