Honorable Robert S. Calvert Opinion No.M-1068

Comptroller of Public Accounts State Finance Building Re: Whether payment of Austin, Texas 78711 vouchers may bemade; 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 tomake expenditures for conduct ofprimary elections. Dear Messrs. Calvert and Bullock:

The close relationship between thematters presented by your opinion requests and thedesirability of having replies as soon aspracticable prompts us tomake this joint reply.

On Thursday afternoon, 10 February 1972,Mr. Calvert requested our opinion on twobasic questions: (1)Can payment be lawfully made on three specific vouchers presented forpayment by the Secretary of State, Mr. Bullock. (2) Whether similar payments may lawfully bemade out of appropriations for theOffice of Secretary of State. The vouchers are of differing natures. One covers an expense itemwhich seems authorized by statute and forwhich legislative appropriation has beenmade. The second covers an itemwhich inpart and under proper circumstance might be authorized by law,butwhich thevoucher shows tohave been made by unauthorized persons and for an unauthorized purpose. The third covers an expenditure made contrary to law, for an unauthorized purpose, andby unauthorized persons. The latter two vouchers concern expenses of aprimary election. All present thequestion whether the order of the Federal Court inJohnson v. Bullock, (thefiling 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 toMr. Calvert's second question depends uponwhether requests for "similarpayments"
are requests forpayments 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 ornotArticle 5.05, subdivisions la(S) and (81,is constitutional. Ithas todo with duties of theCounty Clerk and city clerks or secretaries in conducting absentee voting inprimary elections, andwith hiring andpayment of deputies for suchpurpose.

A duscussion of thequestions, their answers, and the background lawviewed by us as compelling those answers appears below.

In summary form: We are of the opinion that one of thevouchers represents an expenditure forwhich payment may bemade, and that the other two vouchers may not be lawfully paid. We are also of the opinion that the Federal Court inJohnson v. Bullock neither intended nor attempted to confer upon the Secretary of State, Mr. Bullock, anypower additional to that conferred upon him by state statute, and thatArticle 5.05, subdivisions la(5) and (81,is constitutional (thoughnopublic funds
are availbable forhiring deputies for conduct of absenteevoting inprimary elections.)

Nominees of themajor political parties inTexas for allmajor offices are required by statute tobe nominated by primary elections. Texas Election Code, Art. 13.02. This has been true since 1905. Acts 29th Leg., 1stC.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 tobe borne by the candidates. Filing fee assessments had grown to the exent that aFederal Court found them unconstitutional. Johnson v. Bullock, %S!Ei~ Carter v. Dies, 321F.Supp. 1358 (N.D.Tex. 1970). Now primaries are required, but thequestion remains, how

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shall they be funded? At least two answers are possible. Either thepolitical parties may pay, or the statemay pay, ifpermissible under law for it todo so. The legislature might choose a scheme placing parts of the cost onboth. We are not concerned with the firstpossibility except to observe that itmight be desirable for the legislature to have opportunity tomake a choice regarding it. We are here concerned only with the latter possibility, the use of state funds.

Three questions must be considered indiscussing 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 fundsbe used at all? The answer to this question turns onwhether or not primary elections
are conducted for apublic purpose within themeaning of Section III,Article 8,Texas Constitution. Waples v. Marrast, 108 Tex. 5, 184 S.W. 180 (1916). Itwas there held that expenditure of state funds for apresidential preference primary was not an expenditure for apublic purpose. If the expenditure isnot for apublic purpose, it isagrant ofpublic monies toprivate interests, and violative of theTexas 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 inWaples, 184 S.W. at 183was:

"Isthe thing tobe furnished by the appropriation of thepublic revenue something which it is the duty of the State, as agovernment, toprovide?"
Waples v.Mar state to ret:rastrecognized that itwas valid for the

-primary elections and that itwas 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

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officers for services rendered in conducting a second Democratic Primary forUnited States Senator. Whether these holdings stand as abar 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 themost desirable means of insuring purity of the nominative process, the legislature could in 1972validly determine that population increases, greater election costs, and the development of theprimary election process over the last 67years (since 1905) into an integral part of the state elective process, now require that the state furnish primaries to thepeople as apublic 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 theWaples cases, unless and until those cases have been distinguished or overruled. We do not consider it sound to ignore stare decisis in amatter of such great public importance, particularly where, ashere, necessity for so doing is doubtful.

The Federal District Court has retained jurisdiction inJohnston v. Bullock, supra, to consider anyproblems arising out of compliance with its order. Ithas also used aproper restraint inattempting to intrude into areas of state lawonly somuch as is absolutely necessary for constitutional reasons. Nor would itbe necessary now for the Federal Court to decide state law in solving thepresent dilemma. The test ofWaples ispublic 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 topreserve, protect and defend the Constitution and the laws of the United States. Texas Constitution, Art. XVI, Sec. 1. Primary elections inTexas have been considered purely political party functions by theUnited States Supreme Court as recently as Grovey v. Townsend, 295U.S. 45 (1935). This casewas expressly overruled by Smith v.Allright., 321U.S. 649 (1944)holding thatparty primaries inTexas 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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A public purpose may be Bob Bullock, page 5 (M-1068)

defined in terms of federal

._. law aswell as state law, andwhat may be apublic purpose under federal law isnot necessarily limited towhat may be defined as apublic purpose under state law (though,
as indicated, we doubt the twowould differ in this instance.) Ifprimary elections are for apublic purpose within a federal definition more refined now than in 1916
or 1935, they arewe believe, for apublic purpose under the Texas Constitution andWaples. 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 toaction.
(2) Is there existing law to authorize use of state funds? Section 6ofArticle VIII of the Constitution of Texas provides that nomoney shall be drawn from the Treasurybut inpursuance of specific appropriations made by law. Manion v. Lockhart, 131Tex. 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 91Tex. 484, 44S.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 44ofArticle III of the Constitution of Texas, the legislature isprohibited from appropriating statemoney 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, 125Tex. 339, 83S.W.2d 660 (1935); Austin National Bank v. Sheppard, 125Tex. 272, 71S.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 therewas novalid pre-existing-law enacted by the legislature authorizing cost ofprimary elections to bepaid by the state. On the contrary, the pre-existing lawprovided fora contrary method of funding primary elections.

(3) IS there any appropriation of state funds for primary election expenses? The legislature hasmade no

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attempt whatsoever tomake any appropriation topay costs inorimarv elections. On the contrarv. asnoted above. the-costs-of holding primary elections.prior toJohnson
v. Bullock, supra, was borne by the candidates through 'filingfeeassessments.
Section 6ofArticle VIII of the Constitution of Texas specifically prohibits anymoney 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 topay costs forholding primary elections was passed by the legislature, nomoney can be withdrawn from the treasury for that purpose. Since the plan for financing primary elections at the time the finalAppropriation Act was enacted was through filing feeassessments, no rider in theAppropriation Bill could be construed as authorizing this expense tobeborne by the state.
Furthermore, only the legislature isauthorized to make an appropriation. Any rider attempting to authorize theGovernor tomake an appropriation would constitute an unlawful delegation of legislative power inviolation of Article II, Section 1of the Constitution of Texas. The situation is different from one inwhich the legislature has appropriated money for a specific purpose and the amount, due toan extraordinary circumstance, proves insufficient. The Governor isappropriated funds toprovide for the lattersituation. But the legislature has made theprior law and appropriated money for the chosen purpose.

Inview of the foregoing, it isour opinion that there isno existing appropriation of state funds that may be used topay expenses forprimary elections.

It is our opinion that in the absence of a judicial determination that the state is authorized topay costs ofholding primary elections, the officials of this state are bound by the construction of the Texas Constitution made by the Supreme Court of Texas inWaples v.Marrast, supra, and Beene v.Waples, supra. There isno valid pre-existing lawauthorizing an appropriation topay

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

such costs. In the event a judicial determination were made that the state isable topay costs inprimary elections, itwould still be necessary for the legislature tomeet and adopt aplan for state held primary elections andpass an appropriation bill inorder for funds tobe withdrawn from the State Treasury.

Your specific questions are answered as follows:

Voucher No. 284 appears tobe 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 andmaintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause tobeprepared and distributed to each county judge, county tax assessor-collector, and county clerk, and to each county chairman of apolitical party which is required tohold primary elections, detailed and comprehensive written directives and instructions relating to andbased upon the election laws as they apply to elections, registration of electors and voting procedures which by laware 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 statewith 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 toeach county clerk. The Secretary of State shall at the same time certify to each county clerk a

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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 tobe placed
on the general election ballot."

Item 8of the appropriation to the Secretary of State is an appropriation by the legislature topay costs of items specified inArticle 1.03. Ifwe are correct in our assumption thatVoucher No, 284 is for sample forms authorized by theprovisions ofArticle 1.03, it is our opinion the expense may be paid out of the appropriation contained in Item 8of 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 todetermine whether the item of expense isone contemplated byArticle l-03 of the Election Code.

Vouchers No. 282 andNo. 283 are obviously expenses incurred in the conduct of aprimary election forwhich there isno appropriation made. You are accordingly advised that these vouchers may not bepaid.

While there isno appropriation forpayment forpostage stamps purchased by aCounty Democratic Executive Committee, even if there were, Voucher No. 282 isnot in compliance with Section 42ofArticle V of the current General Appropriation Bill. Furthermore, itdoes not appear that there has been compliance with the procedure for obtaining printed material prescribed by Section 21 ofArticle XVI, Texas Constitution. See State v. Steck, supra. Having considered the three questions discussed above, wemove on to consideration ofwhether the order of the court inJohnson 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 tomake rules for theprimary elections as are necessary and consistent with Carter v. Dies, supra. Johnson v. Bullock, supra, The Court, apparently through inadvertence, had

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

overlooked the fact that the Secretary of State is given
a supervisory duty inmaking rules and regulations to insure uniformity in the application of the election laws. As amended by its order of 2February 1972, the Order now reads:

"TheCounty and State Executive Committees
are directed tomake such rules for theprimary elections for 1972 as are necessary and consistentwith Carter v. Dies, supra.

"The Secretary of State is likewise hereby authorized tomake such rules and regulations and to take such other action asmay be necessary to effectuate this order and for the uniform operation of primary elections consistent with Carter v. Dies.

"TheCourt retains jurisdiction to consider anyproblems arising out of compliance with this Order."

We feel itwould come as adistinct surprise to the Federal Court if this order were tobe taken as authority for the Secretary of State to choose how primary elections
are tobe funded inTexas, or as authority forhim 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 byboth state and federal constitutions. We do not impugn to it any suchmotive. Nor canwe perceive any legalbasis onwhich the Secretary of State,Mr. Bullock, amember of the executive branch of government, [Texas Constitution, Article IV, Sec. 1,l could be conceived tobe empowered to exercise legislative powers in the place of the Texas Legislature. Indeed, such a conception ofpower iswholly antagonistic to the Texas Constitution, Article II, Sec. 1.

We do not believe that theCourt's Order of 4February 1972, denying plaintiffs' motion to set aside filing fees setby 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,

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would be permissible, and apparently the Court has found nothing in the fee schedule promulgated by the Secretary tobe sounreasonable as to require invalidation. The plaintiffs raised no question concerning thepower of the Secretary of State topromulgate a fee schedule, nor any questions relating towhether 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 theCourt's denial of plaintiffs' motion constituted a ruling on some of the most serious questions possible under our form of government; whether anappointed member of the executive branch of government may substitute himself for the duly elected representatives of thepeople in this exercise of legislative power; is totally unwarranted. In fact, any assumption that theCourt would give cavalier treatment to such an important matter does discredit to the Court.

Inour 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. Diesmanifestly makes no attempt to substitute Mr. Bullock for theTexas 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. Inprimary elections held by political parties for nominating candidates tobevoted on at general and special elections held at the expense of the county, the absentee voting shall be conducted by the County Clerk. Inprimary elections fornominating candidates for city offices, the absentee voting shall be conducted by the city secretary or city clerk.

II

. . . . ,I

. . . . "(8) Compensation of clerk forabsentee voting. Neither the County Clerk nor the city secretary or city clerk shall receive any additional compensation forperforming the duties

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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 asherein 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 bepaid out of the same fund as other expenses of the election arepaid. Employees of the authority calling the election or employees of any political subdivision of the State which isaffected 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 toassist with the conduct of absentee voting inprimary elections were intended tobe paid from county or city funds, or from funds collected by assessment of fees against primary candidates. We believe the latterwas the legislative intent for two reasons. First, such an intent is inkeeping with the general scheme chosen by the legislature for funding primaries, and second, because the former construction would contravene the law as interpreted inWaples v. Beene, supra. In fact, Waples v. Beene considers an almost identical question of statutorv construction and holds that given twopossible constructions, only one of which is constitutional, the one constitutional is tobe chosen. Use of public money topay the deputy clerks contemplated by the above statute, ispresently impermissible.
Only the Texas Legislature has power toprovide for state conduct ofprimary elections, and only the legislature has power to appropriate money for thatpurpose. If the state is topay forprimary elections, itwill be necessary for the legislature to act, and if action by the legislature is tobe effective, itmust be completed before

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

any expenditures aremade or contracted for. There must be prior law to support any payments from the state treasury.

In light of the fact thatMr. Bullock has requested
we not represent his office in thismatter, we suggest thatwe be authorized to request the Federal Court to use itspending jurisdiction todecide whether conduct ofprimary elections is apublic 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 theypresent matters of state law, there is serious question whether there is
apresent means toplace 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 itdesirable tohave a court decision as soon aspossible, so that the Governor may, ifpossible, 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 isour opinion that a court decision isneeded before the statemay confidently fund primary elections. It is our opinion that a special session of the legislature is required in order to authorize the state toassume the costs ofprimary elections.

Because of the extraordinary circumstances of this matter, we are furnishing this opinion to eachmember of the Federal Courts.

SUMMARY

The vouchers presented to theComptroller of Public Accounts for costs ofprimary 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 frompublic funds for conducting absentee primary voting is lacking.

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

Other vouchers may bepaid only where there ispre-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 thatpurpose. Court clarification ofwhether funding ofprimary elections is
an expenditure for apublic purpose isneeded at once,and recommended by this office. 

## .,37 Your'svery truly,

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman

J. C. Davis RexWhite John Reeves Wardlow Lane

SAMUEL D.MCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

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