THEATTORNEY GENERAL 

OF TEXAS 

Honorable John C. Mullen, County Attorney 

Honorable F. B. Lloyd, Jr., District Attorney 

Jim Wells County 

Alice, Texas 

Opinion No. C-767 

Re: Timeliness and legal sufficiency of submitted petition of an independent candidate for office of Justice 

of the Peace, Precinct 1 of 

Jim Wells County. 

Gentlemen: 

your opinion request on the above-captioned subject 

reads as follows: 

"Prior to July 12, 1966, Justice of the 

Peace Precinct I of Jim Wells County contained 

two Justices of the Peace, designated as Places 

I and II. 

"On July 12, 1966, the Jim Wells County 

Conmkssioners' Court abolished Places I and II, 

declared a vacancy in the Office of Justice of 

the Peace, Precinct I, and appointed a Justice 

of the Peace to serve the unexpired term. A 

new four year term for Justice of the Peace, 

Precinct I will commence January 1, 1967. 

"A petition nominating the former Justice 

of the Peace, Precinct I, Place I, as an independent candidate for the Office of the Justice 

of the Peace, Precinct I, to be filled at the 

General Election on November 8, 1966, was presented to the Jim Wells County Judge on September 9, 

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Hon. John C. Mullen, HLn. F. B. Lloyd, Jr.. page 2 (C-767) 

1966 by someone other than the candidate in 

person. The petition contains a sufficient 

number of signatures, If valid, to constitute 

more than 5% of the votes cast for Governor in 

the last General Election in Justice of the 

Peace Precinct I. 

"We enclose a photocopy of one page of the 

petition nominating Mrs. Villanueva as an independent candidate and we also enclose a photocopy of her application to have her name placed 

on the General Election Ballot. 

"The County Judge of Jim Wells County has 

asked us to obtain your formal opinion as to 

whether or not the form of the petition and the 

application are legally sufficient to constitute a nomination of Mrs. Villanueva as an independent candidate for the Office of Justice 

of the Peace, Precinct I, Jim Wells County, 

Texas: and whether or not the petition was 

presented to him in sufficient time to qualify 

that person as a candidate for the Office of the 

Justice of the Peace at the November 8th General 

Election and we hereby request such opinion," 

Prior to the order of July 12, 1966, there were in 

existence for Justice Precinct No, 1 of Jim Wells County the 

two separate offices of Justice of the Peace. Place No, 1 and 

Justice of the Peace, Place No, 2. Under the provbsions of 

Article XVI, Section 65 of the Texas Constitution, the Justice 

of the Peace, Place No. 1 was serving a four-year term expiring 

on December 31, 1968, and the Justice of the Peace, Place No, 2 

was serving a four-year term expiring on December 31, 1966. 

Therefore, at the general election in November, 1966, this latter 

office was subject to being filled for a new four-year term 

commencing on January 1, 1967, and it would have been proper 

to make nominations for that office at the primary elections 

held on May 7, 1966 (the date of the runoff primary was June 4, 

1966). However, by the order of July 12, 1966, these previously 

existing offices were abolished and the distinct separate office 

of Justice of the Peace, Precinct No. 1 was brought into existence. Thereupon, any previously-made nominations for the abolished 

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Bon. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 3 (C-767) 

office of Justice of the Peace, Place No. 2 became void, and this 

new office became subject to filling by election at the general 

election this year, for a four-year term commencing on (January 1, 

1967. Brown v, Meeks, 96 S.W.Zd 839 (Tex.Ci.v.App. 1936, error 

dism.); Tex. Const., Art. XVI, Sec. 65: Att'y Gen. Ops. WW-1292 

and 1386 (1962). 

In this opinion, therefore, we are concerned with the 

nomination of an independent candidate for an office which came 

into existence after the statutory filing deadlines in Articles 

13.47a and 13.50 of the Texas Election Code. The first question 

to be settled ls,the timeliness of the petition, Article r3.12a 

of the Texas Election Code, enacted in 1963, provides methods and 

deadlines for making nominations for unexpired terms in offices 

where the vacancy giving rise to the unexpired term occurs after 

the deadline for filing in the primaries. Under paragraph (5) 

of Article 13.12a, for a vacancy occurring on July 12, 1966, 

the petition of an independent candidate could be filed at any 

time up to midnight of October 3, 1966 ("not later than thirtyfive days before the day of the general election"). However, 

we are of the opinion that Article 13.12a does not cover the 

present situation, but applies only to unexpired terms. 

We have, then, a situation not covered by any statutory 

provision. This was the legal situation involved in Attorney General's Opinion WW-367 (1958jr which dealt with the methods for 

making nominations for an unexpired term in the office of County 

Attorney before enactment of Article 13.12a, where the vacancy 

occurred too late for nominations to be made in the primaries. In 

that opinion, dated September 15, 1958, the vacancy had not yet 

occurred but it was contemplated that a vacancy might occur prior 

to the general election in November of that year by resignation of 

the incumbent. The opinion held that a political party could make 

a nomination at its county convention (if the vacancy occurred 

before the date of the convention) or at its state convention if 

the county convention had not made a nomination, and that persons 

could also run as independent candidates or as write-in candidates. A further question read as follows: 

"(3) If it is possible for a candidate to 

get his name on the ballot as an independent, 

when must his application be filed and does the 

general law pertaining to independents apply to 

the prerequisites for getting his name on the 

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Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 4 (C-767; 

ballot?" 

The opinion held that the candidacy of an independent 

candidate would be subject to the general provisions of the 

Election Code governing independent candidates (Arts. 13.50- 

13.52) except as to the deadline for filing the application 

(petition) and consent to become a candidate. After discussing 

the holding of the unreported case of Sterrett v. Bver, Cause 

No. 16,058, Dallas Court of Civil Appeals, decided October 5, 

1956, the opinion concluded: 

I'* * * By similar reasoning, we think 

candidates are entitled to a reasonable time 

within which to file their applications after 

the vacancy occurs, but in any event the application must be filed in sufficient time to 

permit the election officers to have the ballots 

prepared in accordance with statutory requirements. What constitutes a reasonable time for 

candidates to file for the office of County 

Attorney of Nueces County will be a matter for 

the initial determination of the County Judge, 

the officer with whom the applications are to 

be filed." 

We repeat that what constitutes a reasonable time for 

independent candidates to file in the present situation is for 

the inktial determination of the County Judge, However, we will 

offer some suggestions in regard to guidelines for determining 

what constitutes a reasonable time. 

The statutory requirements referred to in the preceding 

quotation are that the names of candidates be posted for ten days 

before the ballots are ordered to be printed (Elec, Code, Art. 

13.32) and that the ballots be printed in time for absentee 

; voting to begin on the 20th day before election day (Elec. Code, 

Art. 5.05). These requirements fix the final possible date at 

.some time considerably beyond September 9, the date on which the 

present petition was filed, 

Within this possible period, we think the County Judge 

of Jim Wells County could have announced a predetermined deadline 

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Hbn. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 5 (C-767). 

for receiving applications of independent candidates, under which 

any period of at least 30 days following the creation of the office 

conceivably might have been deemed a reasonable time, based upon 

an analogy to the maximum of 30 days available under Article 

13.50 for circulation of the application in instances where it 

could not be circulated until after the second primary because 

of a runoff contest for a nomination to the office involved. However, we believe the deadline under Article 13.12a, noted above, 

would provide a more appropriate analogy for the County Judge's 

guidance in fixing a deadline ahead of its occurrence. And where 

no deadline had been fixed, we believe independent candidates 

would be entitled to assume in all events that a petition filed 

by the date of the September state convention of political parties 

(see Elec. Code, Art. 13.38) would be timely, since party nominations could be made through that date. 

You have asked also whether the form of the petition 

and Mrs. Villanueva's application are legally sufficient to 

constitute a nomination. In answering this question we bear 

in mind the holding in Attorney General's Opinion No. WW-509 

(19581, based on Weatherlv v. Fulcrham, 153 Tex. 481, 271 S.W.2d 

938 (1954) and Ferris v, Carlson, 158 Tex. 546, 314 S.W.2d 577 

(19581, with respect to the lack of any authority in the County 

Judge to look beyond the face of the petition itself and official 

records in passing on the sufficiency of a petition and the 

validity of signatures appearing thereon. 

Ths only possible deficiency we detect in the petition 

nominating Mrs. Villanueva (officially called an application in 

the Election Code) is with reference to the requirement in 

Article 13.50 that the application show the address of each 

voter signing it. A street address is shown for each signer', 

but the city or town is not shown. However, a Jim Wells poll 

tax receipt number is listed for each signer, and the list of 

qualified voters as well as the duplicate receipt will show the 

signer's full address. In these circumstances, we believe the 

listing of the street address alone is a substantial and sufficient compliance with the statutory requirement. 

Article 13.52 of the Election Code contains the following 

provision: 

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Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 6 (C-767) 

M* * * [A]ny candidate who is required by 

Art. 13,47a of this Code to file a statement of 

intent to become an independent candidate must 

have filed such statement in compliance with 

the provisions of that article, and any candidate not required to file such statement must 

file with the Secretary of State or the county 

judge, as the case may be, his written consent 

to become a candidate, within thirty days after 

the second primary election day." 

The deadline for filing the statement required by Article 

13.47a is the first Monday in February preceding the election. An 

independent candidate for an office created at a date when compliance with this article is impossible is not required to file 

a statement in accordance with the provisions of that statute. 

Att'y Gen. Op, WW-1386 (1962). 

On September 9, 1966, there was filed with the County 

Judge a document, signed by Mrs. Villanueva and acknowledged by 

her on that date, headed "Application to Have Name on Election 

Ballot" and requesting "that my name be placed upon the official 

ballot for the General Election to be held on the 8th day of 

November, 1966, as an independent candidate for the office of 

Justice of the Peace, Precinct I, Jim Wells County, Texas, Full 

Term." The document also lists Mrs. Villanueva's occupation, 

age. and post office address. In our opinion, this document 

constitutes a "written consent to become a candidate" for the 

office involved, 

SUMMARY 

Where the two offices of Justice of the 

Peace, Precinct No, 1, Place No. 1 and Place 

No. 2 were abolished and the separate office 

of Justice of the Peace, Precinct No. 1 was 

created by an order of the Commissioners Court 

entered on July 12, 1966, an election for a 

term of four years for the new office, to begin on January 1, 1967, should be held at the 

general election in November, 1966. Under these 

circumstances, a person desiring to become an 

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Hon. John C. Mullen, Hon F. B. Lloyd, Jr., page 7 (C-767) 

independent candidate for the office is not 

required to file his application (petition) by 

the deadline specified in Article 13.50 of the 

Texas Election Code, and must be allowed a reasonable time in which to file his application 

and consent to run. 

In the present instance, the papers filed 

with the County Judge of Jim Wells County in 

behalf of the candidate named in the voters' 

petition satisfy the documentary requirements 

for becoming an independent candidate for the 

office involved. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

MRW:ra 

APPROVEL: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Paul Phy 

Harold Kennedy 

Alan Minter 

APPRWEB FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

Mary k, Wall 

Assistant 

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