Honorable Llnton S. Savage      Opinion No. NW-509
County Attorney
Nueces County                   Re:   Authority of the County
CorDu.sChri~sti,Texas                 Judge with respect to
                                      sufficiency of appiica-
                                      tions of independent can-
                                      didates for the office of
Dear Mr. Savage:                      County Attorney.
         Your request for an opinion reads as follows:
          "Four applicants for the ~office of County At-
    torney have heretofore filed with the County Judge
    their four several petitions to have-their names
    placed upon the baliot In the general election on
    Novemb.er4, 1958, under the column for 'independ-
    ents:. These petitions were purportedly filed pur-
    suanc to the provisions of Art. 13.53, Election
    Code.
         "The incumbent County Attorney resigned Sep-
    tember 19, 1958, and the vacancy was filled on the
    same date by appointment by the Commissioners Court.
         "Four applicants filed petitions to have their
    names placed on the ballot as heretofore set out.
    One petition was not signed by five per cent of the
    entire vote cast in Nueces County at the last gen-
    eral election. The other three petitions apparently
    have more than five per cent of the number of votes
    so cast, but in many cases names were signed by
    friends, husbands or wives, rather than by the in-
    dividual rzihose
                   name appears on the petition. Also
    in many cases the applicant notarized the signatures
    of many of the signers, and notaries acknowledged
    the signatures of their husband or wife, and rela-
    tives.
          "None of the petitions, except the one which
     did no,tbear a sufficient number of signatureqwas
     accompanied by a five dollar fee pursuant to Art.
     4.10 of the Election Code.
Honorable Linton S, Savage, page 2 (WW-509)

         "A careful perusal of the Election Code seems
    to indica.tetha,:.
                     AX-%.13-53 pertains to 'nominationsl,
    whereas Art. 4.10 pertains to elections. That is,
    Art. 13.53 pertains to the method by which a candi-
    date might secure a nomination to appear on the gen-
    eral election ballot.in the general election as an
    'independent' candidate, a party candi.dateon the in-
    dependent ticket. 7%~ is further borne out by the
    very wording of the Art.icleitself, the last sentence
    of which reads: 'And provided further, in elections
    for a-city or town office, it shall not be necessary
    that independent.candidat.esbe nomina+ed, but anyone
    otherwise qualified may have his name printed upon
    the official ballot for a particuiar office by filing
    his sworn application with the Mayor at least thirty
    (30) days prior to the election day and by paying
    such filing fees as may be required by statute or by
    charter provision. I
         "And, Art. 13.50 of t.heCede makes the same in-
    ference of 'independents as a party by stating 'the
    name of a non-partisan or independent candidate'.
         "Keeping in mind that we have a vacancy of term
    and not of office here, and the offi~ceof County Attor-
    ney was not subject to being filled by election, at
    this general election, it would seem that the proper
    way to fill it would be on a non-partisan basis by spe-
    cial election prusuant t,oArt. 4.10 of the Election
    Code, one of the requirements of which is the payment
    of a five dollar filing fee.
         "Premises considered we r~equestanswer to the fol-
    lowing questions: One. Can names be counted if not
    signed by the individual whose name appears? Two.
    Can the names be count.edwhen the applicant notarizes
    the signatures of the signers? Three. Can the names
    be counted~if the notary acknowledges the signatures
    of husband, wife or relative? ?=I;?. Can signatures
    obtained on a petition prior to the date of resigna-
    tion of the County At~tornsybe counted? Five. Must
    the County Judge certify the applicants'names to ap-
    pear on the general election ballot in the column
    marked independent if the five dollar fee.required
    under Art. 4.10 of the Election Code did not accompany
    the petition?'
          In Attorney General's Opinion ~~-367 (1958), this
office held that Articles 13.50-13.53, Vernon's Texas Election
Code, govern the candidacy of independent candidates for an
.   r




        Honorable Linton S. Savage, page 3 (\$fif-gC?)

        unexpired term in the office of County Attorney, except in
        certain respects not here material.
                    Article 13.53 requires that the application on
        behalf of an independent candidate for a county office be
        signed by five per cent of the entire vote cast in the county
        at the last general election, The signers must be qualified
        voters of the county who have not voted at a primary election
        at which a nomination for that office was made and must take
        the oath required by Article 13.51. The application of's
        'candidatefor a county office is filed with the County Judge,
        who, upon determination that an application conforms to the
        statutory requirements, issues an instruction to the County
        Clerk to place the candidate's name on the ballot in the
        independent column.
                     The purpose ofTthe requested opinio; is for ad-
        vice to ~the County Judge in acting on the applications. The
        questions will be answered from the standpoint of the au-
        thority of the County Judge to act on the applications rather
        than from the standpoint of their sufficiency as tested in a
        court. The County Judge acts in an administrative capacity
        only in passing on the applications. Dancy v. Hunt, 294 S.W.2d
        159 (Tex. Civ. App.,1956) (concurring opinion).
                    Your first question is: Can names be counted if
        not signed by the individual whose name appears?
                     It is not clear from your statement of facts
        >lhichof the following sit.l?ationsobtains in this instance:
         (1) ths signatures were purportedly written by the persons
        whose  names are signed and an inference that they were signed
        by someone else can be drawn from similarity in handwriting
        between these and other signatures on the application; (2)
        the signatures were purportedly written by the persons whose
        names are signed but proof that they were written by someone
        else depends entirely on evidence outside the application;
         (3) the application shows on its face that the names were
        signed by some other person as agent for the voter. However,
        we are of the opinion that the result is the same in each of
        these possible situations and that the County Judge has no
        authority to refuse to count the names.
                    In Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d
        938 (1954). the Suareme Court considered the authoritv of the
        Secretary of State to determine, among other things, whether
        signatures on the application of an independent candidate for
        a district office were forged and to disregard signatures
        which he found to be forgeries in ascertaining whether the
        requisite number of qualified voters had signed the application.
.




    Honorable Linton S. Sava&e, page 4 (WW-509)

    The Court held that the.Secrefary of State (whose authority
    with respect to applications f?r state and district offices
    is the same as that of tineCounty Judge with respect to
    county offices) may make cert;in factual determinations from
    an examination of the application and the records, but that
    he has no authority to cond?lctan independent factual investi-
    gation. The ruling was in t~ie langu%ge:
               "Impliedly Fe flecretzry of Statd is
          authorized to review the records, to check
          the signer's name against the poll tax or
          certificate of exempt:;ion
                                   lists and to ascer-
          tain if the signer is disqualified from having
          voted in the prima.ryin8 other irregularittes
          or defects that may be shown upon t5e face of
          the petition and t:heresords. T?:eSecretary of
          State is in no position to conduct an independent
          factual investigaticn nor woiildtime permit. He
          has before him, so far as the contested issues
          of fact in this case are concerned, only those
          affidavits submitted by the interested parties.
          In some of these affidavits it is recited by
          the affiant tiizthe did not appear before a
          notary public and was unaware of-the purpose of
          the petition, while other affidavits are made
          by persons on hearsay. If in fact signatures
          have been obtained by means of fraudulent repre-
          sentations and by forgery and by the taking of
          false affidavits t?.ewrongdoers may be subjected
          to criminal pen.alties.Indeed it appears that
          indictments have already been returned by the
          grand jury against certain of the notaries public
          for making false certificates."
               The Court also said:
               "As to the 30 signatures which were stricken
          by the Secretary of State on the ground that they
          were obtained by means.oi fraudulent .and untrue
          representations, we are of the opinion that the
          Secretary of State is not clotled with the au-
          thority to determine disputed questions of fact."
                From this case and Ferris v. Carlson, 314 S.W.2d
    577 (Tex.Sup. 19583, it appears that the records which the
    officer is authorized to exaimline
                                     are official .records only.
                Under the holding in the Weatherly case, we think
    the County Judge has no authority to eliminate names from the
    application on the ground that signatures purportedly signed
Ronorable Linton S, Savage, page 5 (W-509)

by t‘nevoter himself are not enuine. Also see In re Murphy,
178 N.Y.S. 236 (App.Div. 1919 . This would be true whether
the proof of falseness of the signature depended wholly on
evidence outside the application or was partially supported
by inference drawn from the application, since in the latter
instance full p~roofof forgery would depend on extraneous
evidence.
             We also think that the County Judge has no au-
 thority to disregard signatures which are shown to have been
'signed by'someone else as agent. In our opinion, the signa-
 ture of a voter on the application is not required by way
 of providing a means of identification and authentication of
 the genuineness of the individual's signature, but merely by
 way of showing that he is supporting the candidacy of the
 person whose application he signs. In Attorney General's
 Opinion V-1513 (1954) we expressed the opinion that the pur-
 pose of requiring a minimum number of signatures is to show
 that there is a. sufficient number of qualified voters sup-
 porting the nomination of the proposed candidate to justify
 granting him a place on the ballot. Even where one purpose
 of signatures is to provide a means of identification, as is
 the case, for example, on applications and affidavits for
 absentee ballots and on ballot stubs, someone else may sign
 the voter's name for him in certain instances. See Article
 5.05, Subdivisions 2, 3, 4 and 6, and Article 8.15 of the
 Rlection Code. It is our opinion that a person eligible to
 sign the application of an independent candidate but incapable
 of signing his name by reason of physical disability clearly
 may aut‘norizesomeone else to sign his name for him, with a
 showing on the face of the application that his name is signed
 for him by the other individual, provided he himself actuaily
 makes the oath required of signers. Regardless of whether a
 voter could authorize someone else to sign for him under
 other circumstances, we think that in instances where the ap-
 plication shows that the name was signed for the voter by
 someone else a prima facie presumption would obtain that the
 signature was made upon proper authorization of the vo.ter
 whose name appears and that the oath'was properly administered
 to the person for whom the signature was made. In such in-
 stances, the County Judge would have no authority to conduct
 an investigation to establish a contrary fact, under the
 principles of the Weatherly case.
             It is not necessary to consider whether a signa-
ture , properly authorized to be made by someone else, would be
iniialidfor lack of a showing on the application that it was
in fact written by someone else, since proof that the signa-
ture was not the voter's own signature would first have to
be established and, as already seen, the County Judge could
                                                                         .




    Honorable Linton S. Savage, page 6 (W-509)

    not inquire into the genuineness of the signature. The false-
    ness oftthe signature, lack sf proper authorization to someone
    else to make the signature, and all other matters considered
    in this opinion wherein the Weatherly holding is applicable,
    would have to be established in a judicial proceeding before
    the County Judge would be authorized to disregard a signature.
                Your second question is: Can the names be counted
    when the applicant notarizes the signatiuresof the signers?
                 It is stated in 31 Tex.Jur., Notaries,B 3, p. 346,
    that, generally speaking, one who is a party to or substantially
    interested in a transaction cannot act as notary with reference
    thereto. He do notethink the candidate is a party to the appli-
    cation in the sense tnere used; only the signer is the party
    thereto, although the candidate must signiUy his written con-
    sent to the candidacy. Clearly a notary could not administer
    his mown oath as a signer of the application, but the fact
    that he was a signer would not prevent his administering the
    oath to other signers.
                 With regard to whether interest in the subject
    matter disqualifies a notary, there appears to be a distinction
    between the taking of acknowledgments and depositions and the
    administration of oaths. While a notary may be disqualified
    from administering an oath because of his interest in or con-
    nection with the subject matter in certain instances (e.g.,
    an attornel in a criminal case may not take the affidavit of
    his client5 , we are not aware o- f any general rule in this State
    disqualifying a person from administering an oath because he
    has an interest in tinema++
                              ,,er or of any specific rule dis-
\   qualifying a candidate from acting as a notary in administering
    the oath to signers of his applic&tion.    Tne rule is to the
    contrary in some jurisdictions, but the rule in Texas seems
    to be that interest does not disqualify a notary from adminis-
    tering an oath, the act being minis:erial in nature. .Thisis
    especially true where the form and confents of the oath are
    prescribed by statute, as in this instance. See 2 Tex.Jur.,
    Affidavits, 8s 9, 11; Note, 74 A.L.R. 774; Komisky v. Raymond,
    51 S.W. 51 (Tex.Civ.App. 1899, error dism.); Walden v. Locke,
    49 S.W.2d 832 (Tex.Civ.App. 1932, error ref.). Most of the
    cases involve an oath administered by an attorney to a client,
    but in some of the cases it affirmatively appears that the at-
    torney's comlsensation was directly affected by the outcome of
    the suit. Nany of the cases holding that an attorney is not
    disqualified to ta'kethe oath of his client, even though he
    has a pecuniary interest in the matter, question the propri.ety
    of the practice Lut recognize that it is not illegal.
                In Norris v. Dunn, 164 S.W.2d 564 (Tex.Civ.App.
    1942, error ref. w.o.m.), it was held that an absentee ballot
 .




     Honorable Linton S. Savzge, page 7 (W-5C9)

     was not invalidated because the affidavit was taken by a
     notary,public who was a candidate on the ballot, in the ab-
     sence of a showing of undue persuasion, fraud or undue in-
     fluence exercised by the candidate. The court referred to
     the rule stated in 31 ,Tex.Jur.346 and further said that the
     distinction between an acknowledgment and an affidavit was
     not material to the question before it. The court's ruling
     was based on the pri~iple t&t where there is no showing of
     fraud, a mere irregularity -wiil not prevent the counting of
                              -0sire of the voters can be as-
     votes where the will and U-
     certained from the ballots and where there is no law pro-
     hibiting the ccunting of such ballots.
                 We are cf the opinion that a candidate is not
     disqualified to act as a notary in administering the oath to
     signers of his application because of his interest therein,
     and that the signatures are nc.t~
                                     invalid on this ground alone.
     Tnis conclusion eliminates-the necessity of considering whether
     the identity of names of the notary and the candidate would
     presumptively establish their identity in person or whether
     the County Judge could inquire into the identity.
                     A signature which is obtained by fraud or undue
     influence is invalid, whether the i’ra-xd or undue influence
     was exerted by the notary or     b ";$"g
                                   lg40y,        ;;g -;y;;~"&"g;
     16 A.2d 206 (N.Hamp. Sup.
     the officer with whom the application is filed has no authority
     to investigate and determine the existence of fraud or undue
     influence (Weatherly v. Faigham, supraj; it is our opinion
     that the County Judge may not inquire into the existence of
     these elements.
.\
                 Your third question is: Can the names be counted
     if the notary ackccwledges the signatures of husband, wife, or
     relative?
                 'Anotary is not disqualified from administering
     an oath bedause of his kinship to the perscn making the oath.
                 Notary Public 8 23; Kirkland v. Ferris, 145 Ga.
     zz %iJ?h:   680 (1916). Therefore, this question is answered
     in'the affirmative . We might add that, even if the rule were
     different, the County ;udge would not hav~eauthority to elimi-
     nate names on this ground if establishment of kinship depended
     on proof outside the records he is authorized to examine.
     Weatherly v. Fuigham, supra.
                 Your fourth question is: Can signatures obtained
     on 2 petition prior to the date of resignation of the County
     Attorney be counted?
.




    Honorable Linton S. Savage, p2ge   a (wbr-,509)

                 In view of the pilrpsseof requiring a minimum
    number of signatures on an application of an independent
    candidate, we are of the opinion that the fact that the ap-
    plication was signed in anticipation cf the vacancy but
    before it actually occurred would not be material and that
    the signatures may be counted. The fact that the voters
    signed the application befcre the vacancy occurred does not.
    affect their willingness to endorse the candidacy of the
    person in whose behalf the s.pplicationis made.,
              _ Your fifth question is: Must the County Judge
    'certify the applicants' names tiJappear on the general elec-
     tion ballot in the col>umnmarked independent if the five dol-
     lar fee required under Art. fi..iC,
                                      of the Election Code did not
     accompany the petition?
                Article 4.10 f the Election Code prescribes a
    filing fee for candidates iln special elections only. The
    statutes relating to spec-a
                             3 1 elections are not applicable to
    an election to fiil a vacancy in the office of County Attorney,
    which is filled at the generai election. Att'y Gen. Ops. o-2965,
    O-5093, 0-6300, ~~-367. No fee is required of independent candi-
    dates in the general election for state, district, county and
    precinct offices held under Article 2.01 of the Election Code.
    Accordingly, failure to accompany the application with a filing
    fee is not a ground for refusing to certify the candidate,
    since no fee is required.
                You stated in your opinion reqJ';est
                                                   that one of the
    applications was not signed by five per cent of the entire vote
    cast in tne county at the last general election. You have not
    asked whether this 2pFlicstion shouid be considered, but in
    order to leave no doubt on the matter we will state that the
    County Judge is authorized (2nd indeed, it is his duty) to as-
    certain that the application contains the requisite number of
    signatures, and he is not authcrized to certify a candidate
    if the application does net contain this minimum number.
                               SUMMARY
                The officer with whom the application of an
           independent ca.r.didate
                                 is filed has no authority
           to investigate and determine the existence of
           facts which depend upon proof outside the appli-
           cation and official records. Therefore, the
           County Judge may not refuse to count signatures
           appearing on the application of an independent
           candidate for the office of County Attorney on
           the ground that they are not genuine or were not
           made upon proper authorization of the voter.
. .




      Honorable Link?   S. Savage, page 9 (WIti-509)

                  A notary public is not disqualified to
             administer an oit& because he ks ac interest
             in the subject matter to which the oath per-
             tains, and sigpatwes notarized by the candi-
             date are not invalid per se. Signatures ob-
             tained by fraud or ur~~~fl~~ence   are invalid,
             but the County Jitdgekas no authority to in-
             quire into the existence of these elements.
                  A notary public is not disquaiified to
             adrriinister
                        oat% tc persons who are related
             to him.
                   Signatures on the applica-tionof a candi-
             date for an unexpired term are not invalid be-
             cause  they were obtained in anticipation of a
             vacancy but before%he vacancy actually occurred.
                  No filing fee is required of independent
             candidates in the general election fcr state,
             district, county acd precinct offices.
                                       Yours very truly,
                                       WILL WILSON
                                       Attorney General of Texas




                                            Assistant
      APPROVED:
      OPINION COMMITTEE
      Morgan Nesbitt, Chairman
      Gordon C, Cass
      Marvin R. Thomas, Jr.
      REVIZWED FOR THE ATTORNEY
      GENXRAL BY:
         W.V. Geppert
