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                       subdivision la(S) and
Secretary of State                           (81, Texas Election
State Capitol                               Code, is constitutional;
Austin, Texas 78711                         and, concerning the au-
                                            thority of the Secre-
                                            tary of State to make
                                            expenditures for con-
                                            duct of primary elec-
                                            tions.
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 pay-
ment 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 ap-
propriations 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 legis-
lative 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 per-
sons. The latter two vouchers concern expenses of a pri-
mary 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, sub-
divisions la(S) and (81, is constitutional.  It has to do
with duties of the County Clerk and city clerks or secre-
taries 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 Fed-
eral 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 absen-
tee 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



                           -5216-
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 pur-
pose. If the expenditure is not for a public purpose, it
is a grant of public monies to private interests, and vio-
lative of the Texas Constitution, Article III, Sec. 51.
[Article III, Sec. 52, makes the same prohibition appli-
cable 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 appropria-
     tion of the public revenue something which it is
     the duty of the State, as a government, to provide?"

Waples v. Mar:rast recognized that it was valid for the
state to ret-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 Dem-
ocratic 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 val-
idly 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 pre-
 sent dilemma. The test of Waples is public purpose. The
 requirements of the Federal Constitution are supreme. In-
 deed, the oath of office of every member of the Texas Leg-
 islature 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 Con-
 stitution, 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) hold-
 ing that party primaries in Texas had become such an in-
 tegral part of the state elective process that they constitute
 state action. The two cases taken together demonstrate
 constitutional evolution and refinement.


                           -5218-
Hon. Robert S. Calvert, Hon. Bob Bullock, page 5   (M-1068)



     A public purpose may be 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 in-
stance.) 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 at-
tempt 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 au-
thorization 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 Trea-
sury 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 with-
drawn 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 pro-
vide 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 legisla-
ture 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 applica-
    tion, operation and interpretation of the
    election laws. In carrying out this respon-
    sibility, 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 elec-
    tion laws.    He shall assist and advise all
    election officers of the state with regard
    to the application, operation and interpreta-
    tion 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 nom-
     inated for state and district offices and all
     other candidates whose names have been certi-
     fied 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 assump-
tion 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 par-
ticular 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 post-
age 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 addition-
al 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 con-
sistent with Carter v. Dies, supra. Johnson v. Bullock,
supra, The Court, apparently through inadvertence, had



                           -5222-
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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 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 consist-
     ent 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 neces-
    sary to effectuate this order and for the uni-
    form operation of primary elections consistent
    with Carter v. Dies.

         "The Court retains jurisdiction to con-
    sider 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 legis-
lative 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. Bull-
ock, 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 appar-
ently 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 govern-
ment; 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 legis-
lative 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 con-
stitutional.  It is there provided:

          "(5) Primary elections.   In primary
     elections held by political parties for
     nominating candidates to be voted on at gen-
     eral and special elections held at the expen-
     se 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 con-
     ducted 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 addi-
     tional 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 permis-
     sion 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 con-
duct of absentee voting in primary elections were intended
to be paid from county or city funds, or from funds col-
lected 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 neces-
sary for the legislature to act, and if action by the leg-
islature is to be effective, it must be completed before



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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 opin-
ions, 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 situa-
tion. 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 elec-
     tions 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 con-
     ducting 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 appropria-
            tion of funds. Only the legislature may
            choose for the state to fund primary elec-
            tions. 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




                                     -5227-
