                     THEATTORNEYGENERAL

                                 OF      TEXAS

                                Ausniw    H.   -,-EXAS

   WILL     WILSON
A’FTORNRX     URNERAL
                                      August 30,         1960



       Honorable Jules Damiani, Jr.                       Opinion No. m-908
       District Attorney
       Courthouse                                         Re:   Method by which names
       Galveston, Texas                                         of candidates for the
                                                                office of Drainage
                                                                Commissioner can be
                                                                placed on the election
                                                                ballot.
       Dear Mr. Damianl:
                     Your opinion request reads as follows:
                  "Galveston County has an existing drainage
             district designated as Galveston County Drainage
             District No. 2, which has been in existence for
             a number of years. Said District has had three
             commissioners serving in the capacity of Drainage
             Commissioners of said district. At the last Demo-
             cratic Primary Election, three Incumbents and a
             fourth party had their names placed on the ballot
             of the Democratic Primary and were voted on at
             said Primary. The fourth person seeking office
             for the first time received a greater number of
             votes in the Democratic Primary than one of the
             three incumbents.
                   "There are three questions on which I would
              like to have your opinion, to-wit:
                  "Question number one: Are candidates for
             office of Drainage District Commissioner required
             to run in the Democratic Primary for such office?
                  "Question number two: Should the Democratic
             Chairman certify the three persons receiving the
             highest number of votes in the Democratic Primary
             to the County Clerk to have their names placed on
             the ballot at the general election?
                  "Question number three: If, in your opinion,
             a person seeking the offlce of Drainage Commissioner
             does not run In the Democratic Primary, then what
             method should a person seeking such office use to
             have his name placed on the ballot at the general
             election?"
Honorable Jules Damlani, Jr., page 2 (w-908)

          Drainage districts are established and operated
under the provisions of Articles 8097-8176 of the Revised
Civil Statutes. The original act on which these articles
are based was passed in 1907, and the substance of Article
8119 was added by an amendment In 1909. Article 8119 pro-
vides for the election of drainage commissioners in the fol-
lowing language:
          "Art. 8119.   Election of commissioners
          "After a district Is so established, upon
     the petition of a majority of the real property
     taxpayers of the district, praying for the elee-
     tlon of three drainage commissioners, the Court1
     shall Immediately order an election for said pur-
     pose at the earliest legal time, to be held as
     other elections hereunder, and shall declare the
     three persons receiving the highest number of votes
     to be elected. If the third highest vote be tied,
     the Court shall elect the third commissioner from
     those tying for the place. Such commissioners so
     elected, when duly qualified hereunder, shall be
     the legal and rightful drainage commlssfoners for
     such district within the full meaning and purpose
     of this law. Such commissioners shall hold office
     until the next regular election for State and county
     officers, and shall then and thereafter be elected
     every two years at such general election."
No other provision Is made In these statutes with respect to
the holding of the biennial elections or the manner in which
persons may become candidates for the office of drainage
commissioner.
          The general  election referred to in Article 8119 is
the election held on the first Tuesday after the first Monday
in November of each even-numbered year, as provided in Article
2.01 of the Texas Election Code. In order for a candidate's
name to appear on the ballot for a regular term of office at
the general election for state and county officers, he must
have been nominated either as a party nominee or as a non-
partisan or independent candidate in accordance with the pro-
visions of the Election Code. Chapter 13 of the Election Code
                  nomination of party candidates through primary
                  13.01-13.43) and party conventions (Arts.
             13.54), and for nomination of non-partisan or


     '"Court"   means the commissioners court.   Art,   8097,
R.C.S.
.   -




        Honorable Jules Damlani, Jr., Page 3 (w-908)

        independent candidates by petitions of qualified voters filed
        within 30 days after the second primary election day (Arts.
        13.50-13.53).
                   The basic question Involved in the answer to your
         uestions is whether the intent of the provision in Article
        % 119 that the drainage commissioners shall be elected "at
        such general election" is to make the election of drainage
        commissioners an integral part of the general election for
        state and county officers and subject to the same regulations,
        or whether the intent Is to provide that the election is to be
        held on the same day and at the same polling places as the gene-
        ral election for state and county officers but is to be con-
        ducted as a separate election. (See Article 2774b, V.C.S., as
        an example of a statute providing for the latter type of elec-
        tion.) Our study of this question has led us to the conclusion
        that the Legislature intended to make the election a part of
        the general election for state and county officers.
                  In the construction of a statute which is susceptible
        of different meanings, regard may be had to custom and legis-
        lative policy at the time of Its enactment, and also to the con-
        sequences of a particular construction. If the literal meaning
        of the language used would be inconsistent with the existing
        legislative policy, or would make administration of the statute
        Impracticable or unsuitable to a proper accomplishment of its
        object, the literal Import may be departed from in order to
        give the statute a meaning in keeping with what appears to have
        been the true intent of the Legislature. 39 Tex.Jur., Statutes,
        BB 95, 117-119, 122. In the light of present-day legislative
        policy with respect to the election of conservation district
        officers and of certain difficulties in conducting this elec-
        tion as a part of the general election for state and county
        officers, it would not be unreasonable to conclude that the
        Legislature Intended to make this a separate election. hut
        the legislative policy which must be looked to Is that existing
        at the time of enactment, and difficulties of administration
        alone are usually not sufficient reason to infer a legislative
        intent at variance with the literal meaning of the statutory
        language.

             2Throughout Chapter 13 there are references to state, dis-
        trict, county and precinct offices. The districts therein re-
        ferred to are congressional, legislative and judicial districts
        (and since the establishment of the elective State Board of
        Education, the districts for election of members of that Board).
        Various other political subdivisions of the State are known as
        districts, such as school districts, junior college districts,
        road districts, and the numerous types of conservation dis-
        tricts (including drainage districts), many of which have elec-
        tive officers; but the term "district office" as used in the
        Election Code does not embrace these political subdivisions.
                                                                 -   .




Honorable Jules Damiani, Jr., page 4 (w-908)

          Drainage districts may be established without
reference to the boundaries of the commissioner, justice
and election precincts Into which the county Is divided and
“may or may not include villages, towns and municipal corpora-
tions; or any portion thereof.” Art. 8097, R.C.S.; Halt v.
State, 176 S.W. 743 (Tex.Clv.App. 1915, error ref.). Thus,
a portion of the voters of an election precinct are not eli-
gible to vote for drainage commissioners If the boundaries
of the district are not coterminous with the boundaries of
one or more election precincts, and consequently the poll
list kept for persons voting on state and county offices
would not serve for the election of drainage commissioners.
Also, in such districts the same ballot could not be used
without alteration by the election officers, as persons not
entitled to vote for drainage commissioners should n t be
furnished a ballot which would enable them to do so.3 These
difficulties are not insurmountable, but do tend to impede
the orderly conduct of the election and to create a likeli-
hood of irregularities which might Invalidate it. There are
also other difficulties and incongruities both in the mechan-
ics of conducting the election and in the nomination of candi-
dates for drainage commissioner under the procedures appli-
cable to state and county officers. However, we are of the
oplnlon that these difficulties standing alone are not suf-
fleient reason for concluding that the Legislature intended a
separate election.
          The customary legislative practice in this State is
to provide for election of officers of political subdivisions
similar In nature to drainage districts through elections un-
related to nomination by political parties and the other nomi-
nation procedures for state and county officers as set out In
Chapter.13 of the Election Code. So far as we have been able
to find, for no other type of conservation district are the
officers elected at the general election for state and county


     3The 1909 act providing for election of drainage com-
missioners restricted voting to property taxpayers. The
courts have since held that statutory provisions restricting
voting at elections for officers of conservation districts
to property taxpayers is unconstitutional, Snelson v. Murray,
252 S.W.2d 720 (Tex.Civ.App. 1952, error rep, n.r,e.) and cf.
King v. Carlton Independent School District, 156 Tex. 365,
925 s W 24 408 (lY261  b t th        titutional provision can
be considered in deteki:ing ~e~%%%ve     intent. This restric-
tion created a further reason why the same poll list and bal-
lot form were not appropriate under the voting qualifioations
which the Legislature sought to impose.
Honorable Jules Damiani, Jr., page 5 (W-908)

officers or under the nomination procedures for that elec-
tion, and the election of drainage commissioners through
political party nominations is now an anomaly. However,
our research has revealed that It was not so anomalous in
1909, when Article 8119 was originally enacted.
          Conservation districts as separate political sub-
divisions originated In 1905, their creation having been
first authorized by an amendment to Section 52 of Article III
of the Constitution in 1904. In 1905 the Legislature enacted
a statute for creation of drainage districts governed by a
board of trustees to be elected biennially, the date of the
biennial elections in each district being determined by the
first election following creation of the district. Ch. 110,
Acts 29th Leg., Reg. Sess., 1905. The,same Legislature also
enacted a statute for creation of irrigation districts, whose
officers were to be elected on the first Tuesday in February
of each even year. Ch. 122, Acts 29th Leg., Reg. Sess., 1905.
In 1907, the Legislature passed a new law for creation of
drainage districts, on which the present law is based, which
as originally enacted provided only for appointment of drain-
age commissioners. See Art. 8118, R.C.S. This law was amended
in 1909 to provide the alternate method of selection through
elections as now provided in Article 8119. Ch. 13, Acts jlst
Leg., Reg. Sess., 1909. The two types of districts created
under the 1905 enactments were the only types of conserva-
tion districts having elective officers which were in exist-
ence in 1909. So it Is seen that at the time Article 8119
was originally enacted the general pattern for election of
conservation district officers as it exists today had not
become firmly established, and in making the election a part
of the general election for state and county officers the
Legislature was not departing from a long-standing general
pol+cy to the contrary as would be the case today.
             Contemporaneous administrative construction of a
statute may be considered in attempting to arrive at its in-
tended meaning. At the present time there Is a variance.in
the manner of conducting the election among the several
counties in which drainage districts are located, perhaps
influenced in some Instances by the manner In which elections
for other types of conservation districts are held. We have
not been able to ascertain whether there was a uniformity of
construction Immediately after enactment of the statute In
1909 and during the early years of its existence; but, sig-
nificantly, the County Clerk's Office of Galveston County has
informed us that from 1910 forward the election of drainage
commissioners    in that county has been held as a part of the
general election and nominations have customarily been made
in the Democratic primaries.
          From a reading of the opinion in Cantwell v. Suttles,
196 S.W. 656 (Tex.Civ.App. lgl'j'),
                                  the only case we have found
Honorable Jules Damianl, Jr., page 6 (w-908)

which might shed any light on judicial or administrative
construction of the statute, It could be Inferred that the
election of drainage commissioners there Involved had been
conducted as a separate election. In that case, the drainage
district included a part of election precincts Nos. 4, 5, 6
and 11 of Liberty County, but voting for drainage commissioners
for the entire district was conducted only at the polling place
for precinct No. 11. Since voters residing in election pre-
cincts 4, 5 and 6 were by law required to vote for state and
county officers In the precinct of their residence, It could
be inferred that a separate ballot had been prepared and a
separate poll list kept In precinct No. 11 for the electionof
drainage commissioners--in other words, that it had been con-
ducted as a separate eleotlon. We have obtained the record in
Cantwell v. Suttles and have found that the election was held
as a part of the general election. Although all residents of
the district were required to vote for drainage commissioners
in election precinct No. li, the office was listed on the
regular general election ballot which was used in precinct No.
11, and a separate poll list was not kept for the voters who
voted only on this office. All the candidates for drainage
commissioner were running as write-in candidates, but the of-
fice title was listed under the party columns as well as under
the Independent and write-in columns, and some of the voters
cast their write-in votes in the party columns. The County
Clerk's Office of Liberty County has informed us that for a
number of years the election of drainage commissioners has
been held in that county as a part of the general eleotion
and candidates customarily are nominated in the Democratic
primaries, but they were unable to say how far back this pra@-
tice went. In view of the evidence establishing the admlnls-
tratlve construction placed on the statute in 1916, it may
reasonably be assumed that this has always been the practice
In that county. While our research has necessarily been limit-
ed, we have not uncovered any evidence of a contrary construc-
tion during the immediate years following enactment of the law
in 1909.
          To restate OUP holding, we are of the opinion that
the biennial election of drainage commissioners is to be con-
ducted as a part of the general election and that nominations
for the office are to be made under the same rules as for the
general election for state and county officers. We shall now
turn to answering the specific questions you have asked.
          Your first question is whether candidates for the
offioe of drainage commissioner are required to run in the
Democratic primary. Although candidates for state and county
offices usually run as the nominee of a political party, they
may also run as independent or non-partisan candidates in ae-
cordance with the method set out in Articles 13.50-13,53 of
Honorable Jules Damlatii,Jr., page 7 (W&908)

the Election Code. We take your question to mean whether
candidates may run and be nominated in the Democratic prl-
mary; In other words, whether political parties may make
nominations for this office. This question is answered in
the affirmative. Party nominations may be made in the same
manner as nominations for county and precinct offices.
          In answer to your third question, we are of the
opinion that persons seeking this office may also run as
independent or non-partisan candidates upon compliance with
the provisions of Articles 13.50-13.53of the Election Code
relating to county and precinct offices. In our opinion, the
petition must be signed by 5 per cent (or 500, whichever Is
the lesser number) of the qualified voters of the drainage
district as determined by the number of voters residing in
the district who voted at the last preceding general election.
Cf. Dancy v. Hunt, 294 S.W.2d 159 (Tex.Civ.App. 1954, error
ref. n.r.e.).
          Petitions of independent candidates must be filed
within 30 days after the second primary election. Art. 13.50.
Since the final filing date for the 1960 general election has
already passed, we shall state for the benefit of the officers
of any county wherein the county officers have been conducting
the election under different filing rules, that in our opinion
the County Judge may still accept applications of independent
candidates for this office in the coming general election. In
Sterrett v. Hyer, Cause No. 16,058 In the Dallas Court of Civil
Appeals, decided on October 5, 1956 (opinion not reported), the
Court held that the statutory deadline was not controlling
under the circumstances of that case. A vacancy had occurred
in the office of Judge of a County Court at Law in Dallas
County on September 1, 1956. Prior to the statutory deadline,
which occurred on September 24 (30 days after the second prl-
mary held on August 25), an individual attempted to file his
application to run for the unexpired term as an independent
candidate, but the County Judge refused to accept the appli-
cation because of a ruling by the District Attorney that the
office could not be filled by the voters at the general elec-
tion In 1956. The candidate brought an action for a writ of
mandamus against the County Judge to compel him to accept the
application, and the district court granted the writ. An ap-
peal was taken to the Court of Civil Appeals, and on September
28, 1956, the Court of Civil Appeals affirmed the judgment of
the trial court. Sterrett v. Morgan, 294 S.W.2d 201. After
rendition of the Court of Civil Appeals decision, the person
who had been appointed to fill the vacancy also attempted to
file his application as an independent candidate, but the
County Judge refused to accept it because the statutory dead-
line had already passed. Thereupon, the appointee brought an
original mandamus action in the Court of Civil Appeals to compel


                                                                 .
Honorable Jules Damlanl, Jr., page 8 (W-908)

the County Judge to acoept,hls appl&cation. In Sterrett v.
Iier supra, the Court held that unher the circumstances of”
  e case the appointee had not had a reasonable opportunity
&--
to comply with the letter of the law In the matter of filing
of his application, and that the County Judge should receive
and act upon It in the asme manner as if It had been filed
within thirty days after the second primary.
          By similar reasoning, where the prospective can’di-
dates for the office of drainage commissioner have been under
the impression that they did not have to file in compliance
with Articles 13.50-13.53because of the legal Interpretation
which had been followed by the local officials, they should be
allowed a reasonable opportunity to file their applications
after the change in interpretation, We are of the opinion
that the candidates should be allowed a reasonable time for
the circulation of their petitions after announcement of the
change In filing requirements.
          In your second question you have asked whether the
Democratic Chairman should certify the three persons who re-
ceived the highest number of votes in the Democratic primary
to the County Clerk to have their names placed on the ballot
at the general eleotlon. In view of the fact that our office
cannot give advice for the guidance of party officials’~b.ut:~is
limited to advlsing the county offlcr%?L concerning their of-
ficial duties, we shall answer this quastlon from the stand-
point of whether the County Clerk should place the names of
these candidates on the general election ballot.
          Attorney General’s Opinion No. V-1529 (1952) held
that the county clerk acts in a ministerial capacfty in re-
ceiving certificates of nomination and in placing names of
nominees on the election ballot, and where the certificate
is regular on its face he does not have the duty or authority
to determine questions of irregularfty or illegality in the
nomination which would depend upon an ascertainment and de-
termination of extraneous facts. This holding is fn accord
with the general rule in other jurisdictions, See 29 C.J.S.,
Elections, ia 147, 155, 156, 162.
          In Weatherly v. Fulgham, 153 Tex. 481, 271 S.W,2d
938 (195&), the Supreme Court quoted with approval the fol-
lowing excerpt from a New York ease involving the authority
of the Election Commission of New York to make ffndlngs of
fact as to the signers of the petitions of independent
candidates:
          I’** * Therefore it is Its duty to refrain
     from acting upon papers purporting to be certi-
     flcates of nomination which do not appear on the
Honorable Jules Damiani, Jr., page 9 (bhkgo8)

    face thereof to be executed In the form and
    manner required by law. In other words, It
    must refrain from acting upon a certificate
    which Is Invalid on its face; but the board
    has no judicial power to Investigate or de-
    cide with respect to the validity of such a
    certificate depending on matters dehors the
    record. + * *'
The Weather1 case held that In acting on petitions of ln-
deped     candidates the Secretary of State could ascertain
irregularities and defects that may be shown upon the face
of the petition and the records, but he had no authority to
inquire-into facts dehors the record. Ferris v. Carlson,
314 S.W.2d 577 (Tex.Sup. 1958), and Baker v. Porter, 333
S.W.2d 594 (Tex.Sup. 1960), announced a similar rule with
respect to the authority of a party executive committee in
acting on applications for a place on the primary ballot.
From these cases, we think the records which 'theCounty Clerk
of Galveston County could examine in this instance are the
certificate of nomination which has been filed with him and
the returns of the primary which have been filed In his of-
fice pursuant to Articles 13.23 and 13.24 of the Election Code.
We are of the opinion that the County Clerk would have no au-
thority to question the regularity of the nominations, and It
would be his duty to place the names of the nominees on the
general election ballot unless otherwise directed by judgment
or order in a judicial proceeding.
                          SUMMARY
         The biennial election of drainage commls-
    sioners provided for In Article 8119, R.C.S.,
    Is a part of the general election for state and
    county officers, and nominations for the office
    may be made in the same manner as nominations for-
    county and precinct offices. Political parties
    may make nominations for the office in accordance
    with the requirements for nominating county and
    precinct candidates. Independent candidates must
    file their applleations in accordance with the
    provisions of Articles 13.50-13.53relating to
    county and precinct offices.
          The county clerk acts In a minfsterial
     capacity in receiving certificates of nomina-
     tion and In placing names of nominees on the
     general election ballot. He does not have the
     duty or authority to raise and determine ques-
     tions of irregularity or illegality in the
Honorable Jules Damianl, Jr., page 10 (WW-908)

    nomination which do not appear on the face of
    the certificate or from an examination of of-
    ficial records.
                                Yours very truly,
                                WILL,WILSON
                                Attorney General of Texas

                                    7%bgczo&
                                BY                      Jx/
                                       Mary K. wall
                                       Assistant
MKW:bh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Charles Cabaniss
J. C. Davis, Jr.
Grundy Wllllama
REVIEWED FOR THE ATTORNEY GENERAL
BY:
        Houghton Brownlee, Jr.
