## THEATTORNEY GENERAL OF TEXAS

Honorable John C. Mullen, County Attorney Honorable F. B. Lloyd, Jr., DistrictAttorney Jim Wells County Alice, Texas OpinionNo. C-767

Re: Timeliness and legal sufficiency of submitted petition of an independentcandidate 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.

"OnJuly 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 fouryear term for Justice of the Peace, Precinct I will commence January 1, 1967.

"A petitionnominating the formerJustice 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, -3685..Hon. John C. Mullen, HLn. F. B. Lloyd, Jr.. page 2 (C-767)

1966by 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 petitionnominatingMrs. Villanueva as an independent candidate and we also enclose a photocopy of her application tohave her name placed
on the General Election Ballot.

"TheCounty Judge of Jim Wells Countyhas asked us to obtainyour 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 petitionwas 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, therewere in existence for Justice PrecinctNo, 1 of Jim Wells County the two separate offices of Justice of the Peace. PlaceNo, 1 and Justice of the Peace, PlaceNo, 2. Under the provbsions of Article XVI, Section 65 of the Texas Constitution, the Justice of the Peace, PlaceNo. 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 inNovember, 1966, this latter officewas 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 (thedate of the runoff primarywas June 4, 1966). However,by the order of July 12, 1966, these previously existing officeswere abolished and the distinct separate office of Justice of the Peace, PrecinctNo. 1 was brought into existence. Thereupon,any previously-madenominations for the abolished 

## -3686-Bon. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 3 (C-767)

office of Justice of the Peace, PlaceNo. 2 became void, and this
new officebecame subject to fillingby election at the general election thisyear, for a four-year term commencing on (January1, 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 concernedwith the nomination of an independentcandidate for an officewhich came into existence after the statutory filing deadlines in Articles 13.47a and 13.50 of the Texas Election Code. The firstquestion to be settled ls,the timeliness of the petition, Article r3.12a of the Texas Election Code, enacted in 1963, providesmethods and deadlines formaking 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 independentcandidate 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 thatArticle 13.12a does not cover the present situation,but applies only to unexpired terms.

We have, then, a situation not coveredby any statutory provision. Thiswas the legal situation involved in Attorney General's OpinionWW-367 (1958jrwhich dealtwith the methods for making nominations for an unexpired term in the office of County Attorneybefore enactment ofArticle 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 occurredbut itwas contemplated that a vacancy might occur prior to the general election in November of thatyear by resignation of the incumbent. The opinionheld that a politicalparty could make
a nomination at its county convention (ifthe vacancy occurred before the date of the convention) or at its state convention if the county conventionhad not made a nomination, and that persons could also run as independentcandidates or as write-in candidates. A furtherquestion read as follows:

"(3) If it is possible for a candidate to get his name on the ballot as an independent, when must his applicationbe filed and does the general law pertaining to independentsapply to the prerequisites for gettinghis name on the -3687-Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 4 (C-767;

ballot?"

The opinionheld that the candidacy of an independent candidatewould be subject to the general provisions of the Election Code governing independentcandidates (Arts.13.50- 13.52) except as to the deadline for filing the application (petition)and consent to become a candidate. After discussing theholding of the unreported case of Sterrettv. 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 applicationmust be filed in sufficient time to permit the election officers tohave the ballots prepared in accordancewith statutory requirements. What constitutes a reasonable time for candidates to file for the office of County Attorney of Nueces Countywill be a matter for the initialdeterminationof the County Judge, the officerwith whom the applications are to be filed."

We repeat thatwhat constitutes a reasonable time for independentcandidates to file in the present situation is for the inktialdetermination 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 candidatesbe posted for ten days before theballots are ordered tobe printed (Elec,Code,Art. 13.32) and that theballots be printed in time for absentee ; voting tobegin on the 20th day before electionday (Elec.Code, Art. 5.05). These requirements fix the final possible date at .sometime considerablybeyond September 9, the date on which the present petitionwas filed,

Within this possibleperiod,we think the County Judge of Jim Wells County couldhave announced a predetermineddeadline -3688-Hbn. John C. Mullen, Hon. F. B. Lloyd, Jr., Page 5 (C-767).

for receiving applications of independentcandidates, under which any period of at least 30 days following the creation of the office conceivablymight have been deemed a reasonable time,based upon an analogy to the maximum of 30 days available underArticle 13.50 for circulation of the application in instanceswhere it could not be circulated until after the second primarybecause of a runoff contest for a nomination to the office involved. However,we believe the deadline underArticle 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 deadlinehad been fixed,we believe independentcandidates would be entitled to assume in all events that a petition filed by the date of the September state convention of political parties (seeElec. 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 questionwe bear in mind theholding inAttorney General's OpinionNo. WW-509 (19581,based onWeatherlv v. Fulcrham,153 Tex. 481, 271 S.W.2d 938 (1954)and Ferrisv, Carlson, 158 Tex. 546, 314 S.W.2d 577 (19581,with respect to the lack of any authority in the County Judge to lookbeyond 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 possibledeficiencywe detect in the petition nominatingMrs. Villanueva (officiallycalled an application in the Election Code) iswith 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 receiptwill show the signer's full address. In these circumstances,we believe the listing of the street address alone is a substantial and sufficient compliancewith the statutory requirement.

Article 13.52 of the ElectionCode contains the following provision:
**-3689-**Hon. John C. Mullen, Hon. F. B. Lloyd, Jr., page 6 (C-767)

M* * * [A]ny candidatewho is requiredby Art. 13,47a of this Code to file a statement of intent tobecome an independentcandidatemust have filed such statement in compliancewith the provisions of that article, and any candidate not required to file such statementmust filewith the Secretary of State or the county judge, as the case may be, his written consent tobecome a candidate,within thirtydays after the second primary electionday."

The deadline for filing the statement requiredby Article 13.47a is the firstMonday in February preceding the election. An independent candidate for an office created at a date when compliancewith this article is impossible is not required to file
a statement in accordancewith the provisions of that statute. Att'y Gen. Op,WW-1386 (1962).

On September 9, 1966, therewas filedwith the County Judge a document, signedby Mrs.Villanueva and acknowledgedby her on that date,headed "Applicationto Have Name on Election Ballot" and requesting "thatmy name be placed upon the official ballot for the General Election tobe held on the 8th day of November, 1966, as an independentcandidate for the office of Justice of the Peace, Precinct I, Jim Wells County, Texas, Full Term." The document also listsMrs. Villanueva's occupation, age. and post office address. In our opinion, this document constitutes a "writtenconsent to become a candidate" for the office involved,

SUMMARY

Where the two offices of Justice of the Peace, PrecinctNo, 1, Place No. 1 and Place No. 2 were abolished and the separate office of Justice of the Peace, PrecinctNo. 1 was createdby an order of the CommissionersCourt entered on July 12, 1966, an election for a term of fouryears for the new office, tobegin on January 1, 1967, shouldbe held at the general election in November, 1966. Under these circumstances,a person desiring to become an -3690-Hon. John C. Mullen, Hon F. B. Lloyd, Jr., page 7 (C-767)

independentcandidate for the office is not required to filehis application (petition)by the deadline specified inArticle 13.50 of the Texas ElectionCode, and must be allowed a reasonable **time** inwhich to filehis application and consent to run.

In the present instance, the papers filed with the County Judge of Jim Wells County in behalf of the candidatenamed in the voters' petition satisfy the documentary requirements forbecoming an independentcandidate for the office involved.

Yours very truly,

WAGGONER CARR Attorney General

**MRW:ra**

APPROVEL: OPINIONCOMMITTEE

W. V. Geppert, Chairman Pat Bailey Paul Phy Harold Kennedy Alan Minter

APPRWEB FOR THEATTORNEY GENERAL BY: T. B. Wright Mary k, Wall Assistant

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