E EY GENE AS

November 10, 1961

Honorable P. Frank Lake OpinionNo. WW-1193 Filing fees in special congressionalelection to be held on December 16, 1961.
as follows: Secretary of State Austin, Texas Re:

Dear Sir: Your opinion request reads

"Your opinion Is respectfullyrequested concerning the statutoryfll~ing fee which must accompany.thaapplication submittedby a person to appear upon the officialballot In the special election to be held in the 13th Congressional District of Texsrson the 16thday of December, 1961, for the purpose of electinga representative in Congress for suchdistrict to serve out the unexpired term of the HonorableFrank N. Ikard. The special election in questionwas called, by Qovernor Daniel on November 8th. The deadline for filing ,anapplication to appear on the ballot in such election is, as I have computed it,mldnight of November 15th. "Article 32a of the Texas Election Code (Article4.10,Vernon's Election Code),which applies generally to applications to appear upon the ballot at special elections,provides that an application to appear on the ballot I * + * must be filed not later than thirty (30)days before any such special election,and must be accompaniedwith a fee of * * * five dollars ($5.00) If a district or county office, * * *.I "Anew article, designatedas Article 32b, was added to the Election Code of Texas by Senate Bill No. 3, Acts 57th Legislature, Second Called Session, 1961. This Act becomes effective on(ww-1193)

after August 14, 1961, the Second Called Honorable P. Frank Lake, page 2

November 13, 1961 (90days the date of adjournment of Session of the 57th Legislature). Section la of Article 32b reads as follows: "'In any special election called to fill a vacancy in the office of United States Representative in any congressionaldistrict of the state, the filing fee shallbe Five Hundred Dollars ($500.00).t "Thequestions specifically submittedare: "1. Will the provisions ofArticle 32a providing for a filing fee of $5.00 apply to applicationsreceived in this officeprior to midnight of November 12? "2
. Will the provisions of Section la of Article 32b providing for a filing fee of $500.00 apply to applicationswhich are received In this officebetweenmidnight of November 12 and the deadline for filing such application In the election; or

“3. Will the provisions of Section la of Article 32b apply to all applicationsreceived in this officeafter November 8 and prior to November 15 deadline?" Article 32b of the Election Code, which becomes effective on November 13, 1961, can have no force as law before that date. Whether it will operate retroactively after its effectivedate on fees paid before that date depends, first, on whether the Legislature Intended to make it retroactive,and, secondly, on whether such retroactive operationwould impairany vested rights. Even if the Legislaturedid so intend, It couldnot be applied to Impair a vested right in violation ofArticle 1, Section 16 of the Texas Constitution,which provides that "no . . .retroactive law
. . . shallbe made." This constitutionalprovision is construedmerely as forbidding the enactment of any law that will prejudiciallyaffect existing;vested rights, or the operation of a law In such a manner as to have that effect.r -

Honorable P. Frank Lake, page 3 (WW-1193)

The inhibition is not ordinarilyextended to a procedural or remedial statute, or, in fact, to any act which does not disturb or impairvested.rlghts. 39 Tex.Jur., Statutes, Sec. 27. In our opinion,a person who files his application as a candidateprior to November 13, and pays the filing fee prescribed In the statute in effect on the date of filing, will not acquire any vested rightwhich would prevent a subsequent change in the electionproceduies.

Since there would be no constitutionalobstacle to making the fee provision of Article 32b operative retroactively in elections calledbefore Its effectivedate, the answer to your questions depends on whether the Legislature Intended for It to have euch operation.

We have found no case construingthe effect of statutory changes in electionprocedureswhich become effeotlve during the intervalbetween the date on which an election Is calledand the date on which it is held. The closest analogy is found in casesdealing with changes in procedure in pending legal proceedings. The Legislaturemay change procedures In pending proceedings,and a statute changing proceedingsprima facie applies to pending proceedings. Walker v. Lylea, 45 S.W.2d 315 (Tex.Civ.App.1931, affirmed 124 T
. ???S.W.2d 1113);Devlin v. Held Bro8., 47 ~.~.2r383 tTex.Clv.App.1932; error diam.).

The election in question is to take place after the effectivedate ofArticle 32b of the Election Code. Further, the filing deadline occurs after the effectivedate of the new law. We believe that It was the intention of the Legislature that all electionprocedures, Including the payment of filing fees, be governedby the provisions of the new law,.The law is prospective In operationand prescribes the entireprocedure for electionsheld after the effective date of the act.

To construe the statute otherwisewould attribute to the Legislaturean intent to allow some candidates to pay a fee of five dollars and to require others to pay a fee of five hundred dollars.

In Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939), the Supreme Court of Texas said:Honorable P. Frank Lake, page 4 (m-1193)

"It Is the settled law.that statutes should be construed so as to carry out the legislative Intent, and when such Intent is,once ascertained, it shouldbe given effect, even though literal meaning of the words used,therel.n Is not followed. Also, statutes shouldnever be given a construction that leads to uncertainty, Injustice, or confusion, if It Is possible to construe them otherwise." We thereforehold that all candidateswho file, regardless of whether they file before or after the effective date of the act,must pay the five hundred dollar filing fee prescribed In Article 32b of the Election Code.

SUMMARY

In the special con ressiona~l election to be held on December 16, iii 19 1, all candidateswho file applications to have.theirnames placed on the ballot must,

pay the five hundreddollar filing fee prescribed In Article 32b of the Election Code, regardless of whether they file before or after the effectivedate of the'act. Yours very truly, WILL WILSON Attorney General of Texas

MKW:afg By: &&-4?L Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Henry Braswell Marvin Thomas Fred Werkenthln IolaWilcox REVIEWEDFORTHEATTORNEYGENERAL BY: Houghton Brownlee