Honorable Doug Crouch                Opinion No. M- 1018
District Attorney
Tarrant County Courthouse            Re:   Whether the inclusion of
Fort Worth, Texas 76102                    a presidential preferential
                                           question on the official
                                           primary election ballots of
                                           the political parties in
                                           Tarrant County would result
                                           in invalidation of the of-
                                           ficial ballots as to the
Dear Mr. Crouch:                           other races on the ballot.

       You have requested an opinion from our office on the fol-
lowing question:

             "Whether or not the inclusion of a presiden-   "
       tial preferential question on the official primary
       election ballots of the political parties in Tarrant
       County would result in the invalidation of the
       official ballots as to the other races on the bal-
       lot."

       The Texas Election Code provides the sole and exclusive
method for the conduct and the holding of primary elections.
Article 1.011 provides as follows:

            "The aim in adopting this Code is to state
       in plain language the laws governing the nomina-
       tion and election of officers and of holding other
       elections, to simplify, clarify and harmonize the
       existing laws in regard to parties ,,~~,suffrage
                                                     nom-
       inations, and elections, and to safeguard the pur-
       ityexllot         box against error, fraud, mistake
       and
       -   corruption, to the end that the will of the




1 All articles referred to are V.A.T.S., Election Code, unless
  otherwise stated.

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Honorable Doug Crouch, page 2     (M-1018)



      ~people shall prevail and that true democracy
       shall not perish from the Lone Star State.
       To that end the provisions of this Code shall
       apply to all elections and primaries held in
       this State, except. as otherwise provided herein."
       (Emphasis added.)

       Article 6.05 provides for the form of the official bal-
lot in all elections in which presidential candidates' names
appear on the ballot.  Subdivision 4 of this Article specifies
that the names of the candidates for President and Vice Presi-
dent shall appear on the ballot at the head of their respective
tickets.

       Article 6.07 provides a method for the legislature to
submit proposed constitutional amendments or other questions to
be voted upon by the electorate in primary elections. Article
13.33 provides that the official ballot as prescribed by~Article
6.05 be used in the primary election and further specifies the
exclusive method of submitting special referendum questions on
the official primary ballot. Article 13.33 provides, in part,
as follows:
            II
                 .,z   state executive committee rnx
             ' at the general,primary election, %
      submit;,
      demand _,
              for specific legislation on any sublect,
      or any other matter, which may be proposed for
      inclusion in the platform or resolutions -~-
                                                of the
      party," and uponpetition  offive per cent of the
      voters of the party, as shown by the total number
      of votes cast for Governor at the last preceding
      general.primary, the state executive ,committee
      shall submit any such question or questlons to
      the voters at the next general prim,ary~,1'
       (Bmphas.isadded.)

       The Election Code does not provide for presidential pref-
erential questions to be included on the official primary bal-
lot.

       The courts have held that the election laws, even though
they may be mandatory in form, are construed as directory in
the absence of fraud or unless then departure or irregularity
has affected or changed the results of the election. Whiteside
v. Brown, 214 S.W.2d 844 (Tex.Civ.App. 1948, error dis.);
Minthorn v. Hale, 372 S.W.2d 752 (Tex.Civ.App. 1964, no writ).


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.




    Honorable Doug Crouch, page 3      (M;1018)



    Sawyer v. Board of Regents of Clarendon Junior College, 393
    S.W.2d 391 (Tex.Civ.App. 1965, no writ).

            Irregularities or minor departures from the express pro-
    visions of the Election,Code do not normally affect the outcome
    of an election. However, in a situation which might arise,, we
    are not presented with what irregularities, minor or gross in
    their nature, exist. Thus, we are faced with.a hypothetical
    fact situation, wholly conj,ectural and ~speculative. It is con-
    trary to the settled policy of this office to render an opinion
    on ,purely conjectural, hypothetical, or speculative questions.

           We are unable to say whether or not a presidential pref-
    erential question willfully ,included on the official primary
    ballot of Tarrant County in direct contravention of the Elec-
    tion Code would constitute ,a fraud or would affect the outcome
    of the election.  This factual determination would have to be
    made after a full investigation of all the relevant facts
    surrounding the election.  This office has no authority to pass
    on.questions of fact.

                            SUMMARY

                There is no statutory authority to authorize
          the inclusion of a .presidential preferential
          .question on the official primary election bal-
           lots of the political payties of any.county.of
           the State.

                It is contrary to the policy of this office
           to render qpinions based on fact situations wholly
           conjectural and speculative, i.e. whether such an
           irregularity as the inclusion of a presidential
           preferential question on the primary ballot of
           political parties might affect the outcome of the
           election.




                                         C. MARTIN
                                         General of Texas

    Prepared by E. L. Hamilton
    Assistant Attorney General


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Honorable Doug Crouch, page 4       (M-1018)



APPROVED:
OPINION COMMITTEE

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

W. 0. Shultz
William J. Craig
Fisher Tyler
Lonny Zwiener

SAM MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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