Honorable Robert S. Calvert Opinion No. M-1068 

Comptroller of Public Accounts 

State Finance Building Re: Whether payment of 

Austin, Texas 78711 vouchers may be made; 

whether Article 5.05, 

Honorable Bob Bullock 

Secretary of State 

State Capitol 

Austin, Texas 78711 

subdivision la(S) and 

(81, Texas Election 

Code, is constitutional; 

and, concerning the authority of the Secretary of State to make 

expenditures for conduct of primary elections. 

Dear Messrs. Calvert and Bullock: 

The close relationship between the matters presented 

by your opinion requests and the desirability of having 

replies as soon as practicable prompts us to make this 

joint reply. 

On Thursday afternoon, 10 February 1972, Mr. Calvert 

requested our opinion on two basic questions: (1) Can payment be lawfully made on three specific vouchers presented 

for payment by the Secretary of State, Mr. Bullock. (2) 

Whether similar payments may lawfully be made out of appropriations for the Office of Secretary of State. The 

vouchers are of differing natures. One covers an expense 

item which seems authorized by statute and for which legislative appropriation has been made. The second covers an 

item which in part and under proper circumstance might be 

authorized by law, but which the voucher shows to have 

been made by unauthorized persons and for an unauthorized 

purpose. The third covers an expenditure made contrary to 

law, for an unauthorized purpose, and by unauthorized persons. The latter two vouchers concern expenses of a primary election. All present the question whether the order 

of the Federal Court in Johnson v. Bullock, (the filing fee 

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, . 

Hon. Robert S. Calvert, Hon. Bob Bullock, page 2 (M-1068) 

case, No. CA3-5373-C, &rthern District of Texas), confers 

on the Secretary of State, Mr. Bullock, any power greater 

than, or different from, that conferred upon him by the 

Texas Election Code. The answer to Mr. Calvert's second 

question depends upon whether requests for "similar payments" 

are requests for payments similar to those authorized by 

law, or similar to those unauthorized by law. 

On Friday afternoon, 11 February 1972, Mr. Bullock 

requested our opinion whether or not Article 5.05, subdivisions la(S) and (81, is constitutional. It has to do 

with duties of the County Clerk and city clerks or secretaries in conducting absentee voting in primary elections, 

and with hiring and payment of deputies for such purpose. 

A duscussion of the questions, their answers, and the 

background law viewed by us as compelling those answers 

appears below. 

In summary form: We are of the opinion that one of 

the vouchers represents an expenditure for which payment 

may be made, and that the other two vouchers may not be 

lawfully paid. We are also of the opinion that the Federal Court in Johnson v. Bullock neither intended nor 

attempted to confer upon the Secretary of State, Mr. 

Bullock, any power additional to that conferred upon him 

by state statute, and that Article 5.05, subdivisions 

la(5) and (81, is constitutional (though no public funds 

are availbable for hiring deputies for conduct of absentee voting in primary elections.) 

Nominees of the major political parties in Texas for 

all major offices are required by statute to be nominated 

by primary elections. Texas Election Code, Art. 13.02. 

This has been true since 1905. Acts 29th Leg., 1st C.S., 

1905, ch. 11, sec. 117, p. 549. The plan chosen by the 

state legislature for financing primary elections cannot 

be used this election year. Johnson v. Bullock, supra. 

This plan required substantially all the expenses of the 

primary elections to be borne by the candidates. Filing 

fee assessments had grown to the exent that a Federal 

Court found them unconstitutional. Johnson v. Bullock, 

%S!Ei~ Carter v. Dies, 321 F.Supp. 1358 (N.D. Tex. 1970). 

Now primaries are required, but the question remains, how 

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Hon. Robert S. Calvert, Hon. Bob Bullock, page 3 (M-1068) 

shall they be funded? At least two answers are possible. 

Either the political parties may pay, or the state may pay, 

if permissible under law for it to do so. The legislature 

might choose a scheme placing parts of the cost on both. 

We are not concerned with the first possibility except to 

observe that it might be desirable for the legislature to 

have opportunity to make a choice regarding it. We are 

here concerned only with the latter possibility, the use of 

state funds. 

Three questions must be considered in discussing the 

possible use of state funds. 

(1) Can state funds be used at all? 

(2) Is there existing law to authorize use of state 

funds? 

(3) Is there any appropriation of state funds for 

primary election expenses? 

(1) Can state funds be used at all? The answer to 

this question turns on whether or not primary elections 

are conducted for a public purpose within the meaning of 

Section III, Article 8, Texas Constitution. Waples v. 

Marrast, 108 Tex. 5, 184 S.W. 180 (1916). It was there 

held that expenditure of state funds for a presidential 

preference primary was not an expenditure for a public purpose. If the expenditure is not for a public purpose, it 

is a grant of public monies to private interests, and violative of the Texas Constitution, Article III, Sec. 51. 

[Article III, Sec. 52, makes the same prohibition applicable to counties and other political subdivisions of the 

state]. 

The question posed in Waples, 184 S.W. at 183 was: 

"Is the thing to be furnished by the appropriation of the public revenue something which it is 

the duty of the State, as a government, to provide?" 

Waples v. Mar 

state to ret 

:rast recognized that it was valid for the 

-primary elections and that it was valid 

for the state to regulate those elections. In Beene v. 

Waples, 108 Tex. 140, 187 S.W. 191, 193 (1916) the Texas 

Supreme Court held that the state could not pay election 

-5217- 
Hon. Robert S. Calvert, Hon. Bob Bullock, page 4 (M-1068) 

officers for services rendered in conducting a second Democratic Primary for United States Senator. Whether these 

holdings stand as a bar to state expenditure at this time 

is subject to considerable doubt. In 1916 the State was 

much smaller, expenses of elections less, and constitutional 

requirements less refined. It is conceivable that if the 

legislature could permissibly require primary elections 

in 1916 as the most desirable means of insuring purity of 

the nominative process, the legislature could in 1972 validly determine that population increases, greater election 

costs, and the development of the primary election process 

over the last 67 years (since 1905) into an integral part 

of the state elective process, now require that the state 

furnish primaries to the people as a public service. We 

believe such a legislative determination would be upheld 

by the courts of this state. We could not, however, and 

do not, advise a course of conduct contravening the rule 

laid down in the Waples cases, unless and until those cases 

have been distinguished or overruled. We do not consider 

it sound to ignore stare decisis in a matter of such great 

public importance, particularly where, as here, necessity 

for so doing is doubtful. 

The Federal District Court has retained jurisdiction 

in Johnston v. Bullock, supra, to consider any problems 

arising out of compliance with its order. It has also 

used a proper restraint in attempting to intrude into areas 

of state law only so much as is absolutely necessary for 

constitutional reasons. Nor would it be necessary now for 

the Federal Court to decide state law in solving the present dilemma. The test of Waples is public purpose. The 

requirements of the Federal Constitution are supreme. Indeed, the oath of office of every member of the Texas Legislature and all officers of state government requires the 

best ability of each to preserve, protect and defend the 

Constitution and the laws of the United States. Texas Constitution, Art. XVI, Sec. 1. Primary elections in Texas 

have been considered purely political party functions by 

the United States Supreme Court as recently as Grovey v. 

Townsend, 295 U.S. 45 (1935). This case was expressly 

overruled by Smith v. Allright., 321 U.S. 649 (1944) holding that party primaries in Texas had become such an integral part of the state elective process that they constitute 

state action. The two cases taken together demonstrate 

constitutional evolution and refinement. 

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Hon. Robert S. Calvert, Hon. 

A public purpose may be 

Bob Bullock, page 5 (M-1068) 

defined in terms of federal . _. 

law as well as state law, and what may be a public purpose 

under federal law is not necessarily limited to what may 

be defined as a public purpose under state law (though, 

as indicated, we doubt the two would differ in this instance.) If primary elections are for a public purpose 

within a federal definition more refined now than in 1916 

or 1935, they are we believe, for a public purpose under 

the Texas Constitution and Waples. We believe the Federal 

Court should be requested to clarify this point. We attempt to act as attorney for the state agencies in these 

matters and therefore will await your request for such 

action, just as any attorney would await his client's authorization prior to action. 

(2) Is there existing law to authorize use of state 

funds? Section 6 of Article VIII of the Constitution of 

Texas provides that no money shall be drawn from the Treasury but in pursuance of specific appropriations made by 

law. Manion v. Lockhart, 131 Tex. 175, 114 S.W.2d 216 

(1938); Texas Department of Public Safety v. Morris, 426 

S.W.2d 290 (Tex.Civ.App., 1968, revd. on other gds., 436 S.W. 

2d 124); Pickle v. Finley 91 Tex. 484, 44 S.W. 480 (1898); 

Lightfoot v. Lane, 104 Te:. 447, 140 S.W. 89 (1911). 

It is settled as the law of this state that under the 

provisions of Section 44 of Article III of the Constitution 

of Texas, the legislature is prohibited from appropriating 

state money unless at the very time the appropriation is 

made, there is already in force some pre-existing valid 

law authorizing the appropriation. Fort Worth Cavalry 

Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660 (1935); 

Austin National Bank v. Sheppard, 125 Tex. 272, 71 S.W.2d 

242 (1934); State v. Steck, 236 S.W.2d 866 (Tex.Civ.App. 

1951, error ref..); State v. Connecticut General Life 

Insurance Co., 382 S.W.Zd 745 (Tex.Sup. 1964). 

At the time the current General Appropriation Act 

was passed there was no valid pre-existing-law enacted by 

the legislature authorizing cost of primary elections to 

be paid by the state. On the contrary, the pre-existing 

law provided for a contrary method of funding primary 

elections. 

(3) IS there any appropriation of state funds for 

primary election expenses? The legislature has made no 

-5219- 
Hon. Robert S. Calvert, Hon. Bob Bullock, page 6 (M-1068) 

attempt whatsoever to make any appropriation to pay costs 

in orimarv elections. On the contrarv. as noted above. 

the-costs-of holding primary elections.prior to Johnson 

v. Bullock, supra, was borne by the candidates through 

'filing fee assessments. 

Section 6 of Article VIII of the Constitution of 

Texas specifically prohibits any money from being withdrawn from the state treasury in the absence of an 

appropriation by the legislature. Manion v. Lockhart, 

supra; Texas Department of Public Safety v. Morris, w; 

Pickle v. Finley, supra; Lightfoot v. Lane, supra. Since 

no item of appropriation to pay costs for holding primary 

elections was passed by the legislature, no money can be 

withdrawn from the treasury for that purpose. Since the 

plan for financing primary elections at the time the 

final Appropriation Act was enacted was through filing 

fee assessments, no rider in the Appropriation Bill 

could be construed as authorizing this expense to be borne 

by the state. 

Furthermore, only the legislature is authorized to 

make an appropriation. Any rider attempting to authorize 

the Governor to make an appropriation would constitute an 

unlawful delegation of legislative power in violation of 

Article II, Section 1 of the Constitution of Texas. The 

situation is different from one in which the legislature 

has appropriated money for a specific purpose and the 

amount, due to an extraordinary circumstance, proves 

insufficient. The Governor is appropriated funds to provide for the latter situation. But the legislature has 

made the prior law and appropriated money for the chosen 

purpose. 

In view of the foregoing, it is our opinion that 

there is no existing appropriation of state funds that 

may be used to pay expenses for primary elections. 

It is our opinion that in the absence of a judicial 

determination that the state is authorized to pay costs 

of holding primary elections, the officials of this state 

are bound by the construction of the Texas Constitution 

made by the Supreme Court of Texas in Waples v. Marrast, 

supra, and Beene v. Waples, supra. There is no valid 

pre-existing law authorizing an appropriation to pay 

-5220- 
. 

Hon. Robert S. Calvert, Bon. Bob Bullock, page 7 (M-1068) 

such costs. In the event a judicial determination were 

made that the state is able to pay costs in primary 

elections, it would still be necessary for the legislature to meet and adopt a plan for state held primary 

elections and pass an appropriation bill in order for funds 

to be withdrawn from the State Treasury. 

Your specific questions are answered as follows: 

Voucher No. 284 appears to be an item of state 

expense and not a cost of conducting primary elections. 

Article 1.03 of the Election Code provides: 

"Subdivision 1. The Secretary of State 

shall be the chief election officer of this 

state, and it shall be his responsibility to 

obtain and maintain uniformity in the application, operation and interpretation of the 

election laws. In carrying out this responsibility, he shall cause to be prepared and 

distributed to each county judge, county tax 

assessor-collector, and county clerk, and 

to each county chairman of a political party 

which is required to hold primary elections, 

detailed and comprehensive written directives 

and instructions relating to and based upon 

the election laws as they apply to elections, 

registration of electors and voting procedures 

which by law are under the direction and control of 

of each such respective officer. Such directives 

and instructions shall include sample forms of 

ballots, papers, documents, records and other 

materials and supplies required by such election laws. He shall assist and advise all 

election officers of the state with regard 

to the application, operation and interpretation of the election laws. 

"Subd. 2. At least thirty days before 

each general election, the Secretary of State 

shall prescribe forms of all blanks necessary 

under this code and shall furnish same to each 

county clerk. The Secretary of State shall at 

the same time certify to each county clerk a 

-5221- 
Hon. Robert S. Calvert, Hon. Bob Bullock, page 8 (M-1068) 

list of all the candidates who have been nominated for state and district offices and all 

other candidates whose names have been certified to the Secretary of State to be placed 

on the general election ballot." 

Item 8 of the appropriation to the Secretary of State 

is an appropriation by the legislature to pay costs of items 

specified in Article 1.03. If we are correct in our assumption that Voucher No, 284 is for sample forms authorized 

by the provisions of Article 1.03, it is our opinion the 

expense may be paid out of the appropriation contained in 

Item 8 of the appropriation to the Secretary of State's 

Office. We do not pass on the question whether the particular voucher is in sufficient form for the Comptroller 

to determine whether the item of expense is one contemplated 

by Article l-03 of the Election Code. 

Vouchers No. 282 and No. 283 are obviously expenses 

incurred in the conduct of a primary election for which 

there is no appropriation made. You are accordingly 

advised that these vouchers may not be paid. 

While there is no appropriation for payment for postage stamps purchased by a County Democratic Executive 

Committee, even if there were, Voucher No. 282 is not in 

compliance with Section 42 of Article V of the current 

General Appropriation Bill. Furthermore, it does not 

appear that there has been compliance with the procedure 

for obtaining printed material prescribed by Section 21 

of Article XVI, Texas Constitution. See State v. Steck, 

supra. 

Having considered the three questions discussed 

above, we move on to consideration of whether the order 

of the court in Johnson v. Bullock, supra, confers on 

the Secretary of State, Mr. Bullock, any authority additional to that conferred upon him by the Texas Election Code. 

Whether the Federal Court could do this seems to us not 

at issue, because it seems obvious the Federal Court has 

not done it. In its original order, the Federal Court 

ordered the County and State Executive Committees to make 

rules for the primary elections as are necessary and consistent with Carter v. Dies, supra. Johnson v. Bullock, 

supra, The Court, apparently through inadvertence, had 

-5222- 
. 

Hon. Robert S. Calvert, Hon. Bob Bullock, page 9 (M-1068) 

overlooked the fact that the Secretary of State is given 

a supervisory duty in making rules and regulations to 

insure uniformity in the application of the election 

laws. As amended by its order of 2 February 1972, the 

Order now reads: 

"The County and State Executive Committees 

are directed to make such rules for the primary 

elections for 1972 as are necessary and consistent with Carter v. Dies, supra. 

"The Secretary of State is likewise hereby 

authorized to make such rules and regulations 

and to take such other action as may be necessary to effectuate this order and for the uniform operation of primary elections consistent 

with Carter v. Dies. 

"The Court retains jurisdiction to consider any problems arising out of compliance 

with this Order." 

We feel it would come as a distinct surprise to the 

Federal Court if this order were to be taken as authority 

for the Secretary of State to choose how primary elections 

are to be funded in Texas, or as authority for him to 

expend funds from the state treasury without either legislative authorization or appropriation. The Federal Court 

has done nothing in disrespect of the doctrine of separation 

of powers recognized by both state and federal constitutions. 

We do not impugn to it any such motive. Nor can we perceive 

any legal basis on which the Secretary of State, Mr. Bullock, a member of the executive branch of government, [Texas 

Constitution, Article IV, Sec. 1,l could be conceived to be 

empowered to exercise legislative powers in the place of 

the Texas Legislature. Indeed, such a conception of power 

is wholly antagonistic to the Texas Constitution, Article 

II, Sec. 1. 

We do not believe that the Court's Order of 4 February 

1972, denying plaintiffs' motion to set aside filing fees 

set by the Secretary of State, unless approved by the 

Court upon notice and hearing, is any indication of Court 

intent contrary to the above. The Court originally stated 

that reasonable fees, related to legitimate state interest, 

-5223- 
Hon. Robert S. Calvert, Hon. Bob Bullock, page 10 (M-1068) 

would be permissible, and apparently the Court has found 

nothing in the fee schedule promulgated by the Secretary 

to be so unreasonable as to require invalidation. The 

plaintiffs raised no question concerning the power of the 

Secretary of State to promulgate a fee schedule, nor any 

questions relating to whether requirements of due process 

were honored in its implementation. The plaintiffs apparently assumed the Secretary could promulgate and enforce 

some fee schedule. To assume that the Court's denial of 

plaintiffs' motion constituted a ruling on some of the 

most serious questions possible under our form of government; whether an appointed member of the executive branch 

of government may substitute himself for the duly elected 

representatives of the people in this exercise of legislative power; is totally unwarranted. In fact, any 

assumption that the Court would give cavalier treatment 

to such an important matter does discredit to the Court. 

In our opinion, the power of the Secretary of State, 

Mr. Bullock, remains the same as that given him under 

state law, modified only to comply with Carter v. Dies -- 

and Carter v. Dies manifestly makes no attempt to substitute 

Mr. Bullock for the Texas Legislature. 

We turn now to the question whether Texas Election 

Code, Article 5.05, Subdivisions la(S) and (8) is constitutional. It is there provided: 

"(5) Primary elections. In primary 

elections held by political parties for 

nominating candidates to be voted on at general and special elections held at the expense of the county, the absentee voting shall 

be conducted by the County Clerk. In primary 

elections for nominating candidates for city 

offices, the absentee voting shall be conducted by the city secretary or city clerk. 

II . . . . 

,I . . . . 

"(8) Compensation of clerk for absentee 

voting. Neither the County Clerk nor the city 

secretary or city clerk shall receive any additional compensation for performing the duties 

-5224- 
. 

Hon. Robert S. Calvert, Hon. Bob Bullock, page 11 (M-1068) 

devolving upon him under this Section, but 

additional deputies necessitated thereby may 

be appointed and compensated under the General 

Law pertaining to appointment of deputies. 

Except as herein required or expressly authorized, 

the County Clerk shall not conduct absentee 

voting in any election. In all elections 

where some person other than the County Clerk 

or city secretary or city clerk conducts the 

absentee voting#the authority calling the 

election shall fix the compensation of such 

person and his deputies, if any, which shall 

be paid out of the same fund as other expenses 

of the election are paid. Employees of the 

authority calling the election or employees 

of any political subdivision of the State which 

is affected by the election, with the permission of its governing board, may be appointed 

to serve as clerk or deputy,clerk for absentee 

voting without additional compensation." 

We believe that to some extent this statute is ambiguous. 

It is unclear whether deputies hired to assist with the conduct of absentee voting in primary elections were intended 

to be paid from county or city funds, or from funds collected by assessment of fees against primary candidates. 

We believe the latter was the legislative intent for two 

reasons. First, such an intent is in keeping with the 

general scheme chosen by the legislature for funding 

primaries, and second, because the former construction 

would contravene the law as interpreted in Waples v. 

Beene, supra. In fact, Waples v. Beene considers an 

almost identical question of statutorv construction and 

holds that given two possible constructions, only one of 

which is constitutional, the one constitutional is to be 

chosen. Use of public money to pay the deputy clerks 

contemplated by the above statute, is presently 

impermissible. 

Only the Texas Legislature has power to provide for 

state conduct of primary elections, and only the legislature 

has power to appropriate money for that purpose. If the 

state is to pay for primary elections, it will be necessary for the legislature to act, and if action by the legislature is to be effective, it must be completed before 

-5225- 
. . . 

Hon. Robert S. Calvert, Hon. Bob Bullock, page 12 (M-1068) 

any expenditures are made or contracted for. There must 

be prior law to support any payments from the state 

treasury. 

In light of the fact that Mr. Bullock has requested 

we not represent his office in this matter, we suggest 

that we be authorized to request the Federal Court to 

use its pending jurisdiction to decide whether conduct 

of primary elections is a public function required of 

the state. At the same time, we would request that the 

Court make some determination of the other questions 

considered in this opinion. While they present matters 

of state law, there is serious question whether there is 

a present means to place them immediately before the Texas 

Supreme Court. Original jurisdiction of the Texas Supreme 

Court is limited, and that court does not render advisory 

opinions. Neither do federal courts render advisory opinions, but the Federal Court having jurisdiction in this case, 

would, we feel, furnish necessary clarification concerning 

the thrust of its orders. 

We believe it desirable to have a court decision as 

soon as possible, so that the Governor may, if possible, 

be assured, whether the legislature must be called. We 

are confident the Governor will give proper consideration 

to, and take proper action in, this extraordinary situation. It is our opinion that a court decision is needed 

before the state may confidently fund primary elections. 

It is our opinion that a special session of the legislature 

is required in order to authorize the state to assume the 

costs of primary elections. 

Because of the extraordinary circumstances of this 

matter, we are furnishing this opinion to each member 

of the Federal Courts. 

SUMMARY 

The vouchers presented to the Comptroller 

of Public Accounts for costs of primary elections may not be legally paid. The Texas 

Election Code, Article 5.05, Subdivisions la(5) 

and (8) is constitutional, though funding for 

payment of deputies from public funds for conducting absentee primary voting is lacking. 

-5226- 
. . . . 

Hon. Robert S. Calvert, Hon. Bob Bullock, page 13 (M-1068) 

Other vouchers may be paid only where there 

is pre-existing authorization and appropriation of funds. Only the legislature may 

choose for the state to fund primary elections. Only the legislature may appropriate 

funds for that purpose. Court clarification 

of whether funding of primary elections is 

an expenditure for a public purpose is needed 

at once,and recommended by this office. 

.,37 

Your's very truly, 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

J. C. Davis 

Rex White 

John Reeves 

Wardlow Lane 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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