                        The Attorney               General of Texas
                                          May 1,        1980
MARK WHITE
Attorney General


                   Honorable Patrick J. Ridley                  Opinion No. ML+175
                   Bell County Attorney
                   Bell County Courthouse                       Re: Effect        of   signing      a
                   Belton, Texas 76513                          nominating petition for a candidate
                                                                in a primary election.

                   Dear Mr. Ridley:

                         You ask for an interpretation    of article 13.08(d) of the Election Code.
                   This statute provides that a candidate may have his name placed on a
                   primary ballot through the filing of nominating petitions as opposed to the
                   paying of a filing fee. You wish to know whether a voter who signs a
                   nominating petition for a candidate of one political party ls thereby
                   precluded from participating      in the primary or precinct convention of
                   another political party.

                         Article 13.08(d) of the Election Code provides that the following
                   statement appear at the head of each page of a nominating petition:

                              ‘I know the contents of this petition. I am a qualified
                              voter eligible to vote in the forthcoming primary
                              election of the (fill in name) Party for the office of
                              which (fill in name) is a candidate. I have not signed
                              the petition of a candidate who is running for any
                              office Iinl the primary of any other party.              I
                              understand that by signing this petition I become
                              ineligible to affiliate  with any other party or to
                              participate in the primary elections, conventions, or
                              other party affairs of any other party, including a
                              party which is not holding a primary election, during
                              the voting year in which this election is held, and that
                              I am guilty of a misdemeanor if I attempt to do so.’

                   There is no requirement for the administering of an oath to any person
                   signing a petition under article 13.06(d) of the Election Code.

                          We find no provision which actually prohibits one who has signed such a
                   petition from participating in the primary election or convention of another
                   party. Article 15.41 of the Election Code penalizes one who votes knowing




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Honorable Patrick J. Ridley     -   Page Two      (MW-1751



that he is unqualified, but the offense is a third degree felony rather than the
misdemeanor referred to in the statement.       See also Election Code arts. 15.42 (instigating
illegal voting is a third degree felony); 15.43 (falseswearing   as to qualifications to vote is
a third degree felony); 15.44 (inducing voter to swear falsely is a third degree felony). We
do not believe that a person who signs a petition violates article 15.45 of the Election
Code, which prohibits voting in a primary by one who is not qualified to vote in that
precinct or who votes more than once in the same primary election. Nor do we believe he
violates article 15.49 of the Election Code, which prohibits one who has voted at the
primary or participated in the convention of one party from similar participation in the
primary or convention of the other party. Signing a petition would not constitute voting in
the primary or participating in the convention.        Thus, we do not believe the statement
refers to the misdemeanor offense found in article 15.49 of the Election Code.

       The statement apparently refers to a misdemeanor provision which is no longer in
effect. The predecessor of article 13.08 of the Election Code was former Election Code
article l3.08c, which provided in section (f) that the petition language required under
Election Code article 13.08(d) be administered as an oath to all signers. Acts 1971, 62nd
Leg., lst C.S., ch. 11, at 34. Section (g) of the former article 13.08~ provided that the
signer of a petition “becomes ineligible to affiliate with any other party during the voting
year in which the election is held ” If he participated or attempted to participate in the
primary or convention of any other party during the voting year, he would be guilty of a
misdemeanor.       When the law was amended in 1975 the prohibition was intentionally       or
inadvertently    repealed even though the language of the petition was retained.        In our
opinion, the petition language is tied to the prohibition and misdemeanor penalty which
are no longer effective.     Although it may recite the public policy of the state as adopted
by the legislature, the language of the petition alone does not expressly prohibit the signer
from participating     in the primary election of another party. Consequently, a voter who
signs a nominating petition for a candidate of one political party is not thereby expressly
prohibited from participating in the primary or precinct convention of another party.

       You next ask whether nominating petitions for primary elections in the custody of
political parties are available for public inspection under the Open Records Act. The
primaries of the political parties are financed by public funds. Election Code art. 13.08(e).
Acts 1979, 66th Leg., ch. 843, at 2719. The state executive committee has to submit to
the secretary of state reports of filing fees which it receives. I&

      The Open Records Act applies to information        maintained   by governmental    bodies,
defined to include

            the part, section, or portion of every organization, corporation,
            commission, committee, institution, or agency which is supported
            in whole or in part by public funds, or which expends public funds.
            Public funds as used herein shall mean fun& of the State of Texas
            or any governmental subdivision thereof; . . .

V.T.C.S. art. 6252-17a, S 2(1)(F). A Texas district court has held that the Dallas County
Democratic Executive Committee was a governmental body within the Open Records Act,




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        Honorable Patrick J. Ridley   -    Page Three       (Nw-175)



        relyi% on the fact that it was supported in part by and did expend public funds. Pan
        v. Debusk, Civ. No. 74-2552-C Dist. Ct. of Dallas County, 68th Judicial Dist. +- o Texas,
        May 2, 1974. See Comment, The Texas Open Records Act: A Section-by-Section Analysis,
        14 Houston L.%.    398, 403 (1977). See also Open Records Decision No. 226 (1979) (North
        Texas Commission ls a governmental body under the Open Records Act). We find no
        exception in the Open Records Act that would permit the withholding of the nominating
        petitions which constitute part of the primary election process.       See enerall   Open
        Records Decision No. 146 (1976) (information concerning city elections atois ava      the
        public under the Open Records Act).

                                               SUMMARY

                   The language of the petition form set out in article 13.08(d) of the
                   Election Code states the public policy of the state that a person
                   who signs a petition under that statute for a candidate of one party
                   not participate in the primary and party affairs of another party.
                   However, the specific prohibition against voting in the primary of
                   another party was repealed in 1975, and thus a voter who signs a
                   nominating petition for a candidate of one political party pursuant
                   to article 13.08(d) of the Election Code is no longer expressly
                   prohibited from participating in the primary or precinct convention
                   of another political party.       Nominating petitions for primary
                   elections in the custody of political parties are available for public
                   inspection under the Open Records Act.
                                                                                A




                                                  -     MARK     WHITE
                                                        Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General

        Prepared by Susan Garrison
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman
        Jim Allison




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Honorable Patrick J. Ridley   -   Page Four   (Mw-175)



Susan Garrison
Rick Gilpin
Terry Goodman
Tom Pollan




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