              E        ORNEY       GENERAL
                      OF%-EXAS



                           April 2, 1962


Honorable William Hunter          Opinion No, NW-1294
District Attorney
69th Judicial District            Re:   Failure of candidate
319 Denrock Avenue                      to pay assessment as
Dalhart, Texas                          required by Art. 13.08
                                        and 13.15, Texas Election
Dear Mr. Hunter:                        Code.
    You have asked the following question:
      "Article 13.08 of the Election Code pro-
   vides for determining the amount of assess-
   ment of the candidate and how that is paid,
   and further provides for the final date of
   payment. Art. 13.15 requires a filing fee
   to be paid before the name is placed on the
   ballot. If a candidate paid no assessment
   by the final hour and date, but is the only
   candidate for that position, should his name
   appear in the list of candidates on the ballot
   for that party in the November Election?"
    Article 13.08,Texas Election Code, reads in part
as follows:
      "Prior to the assessment of the candidates,
   the county committee shall carefully estimate
   the cost of printing the official ballots,
   ..., compensation of election officers and
   clerks .... and all other necessary expenses
   of holding the general and second primaries
   in such county and on the second Monday in
   February preceding each primary, shall appor-
   tion such cost in such manner as in their judg-
   ment is just and equitable among the various
   candidates for nomination for district, county
   and precinct offices, only ... The committee
   shall, by resolution direct the chairman to
   immediately mail to each person against whom
   an assessment is made a statement of the amount
   of such expenses apportioned to him, with the
   request that he pay the same to the county
   chairman on or before the Saturday before the
Honorable William Hunter, Page 2     Opinion No. WW-1294


         third Monday in February thereafter. Candi-
         dates filing subsequently shall pay the same
         assessment prescribed for other candidates
         for the office they seek, and shall have
         one (1) week from the date they file in
         which to pay said assessment. It shall be
         sufficient to meet the requirements of this
         law to mail by registered letter to the
         chairman before the deadline herein provided,
         as shown by the postmark on the letter, a money
         order, a certified check, or a good personal
         check."
     Article 13.08a, Texas Election Code, which is applicable
only to counties having a population of 800,000 or more inhabitants,
appears to be more stringent in its terms than Art. 13.08, since
Art. 13.08a states, "The application and payment must be delivered
to the proper party chairman or secretary by the deadline for
making application for a place on the ballot, and it shall not be
sufficient for the application and payment to have been mailed
before the deadline unless they are actually delivered by the
deadline." ,&&phasis addedJ    Article 13.0tIais not involved in
this opinion.
     Section (a) of Article 13.15, Texas Election Code, with
reference to the Primary, reads as follows:
           "No person's name shall be placed on the
         ballot for a district, county or precinct
         office who has not paid to the county
         executive committee the amount of the
         estimated expense of holding such primary
         apportioned to him by the county executive
         committee as hereinbefore provided."
     Art. 6.01, Texas Election Code, in referring to the ballot
to be used in a General Election, states:
           I,
                  The names shall appear on the
         balioi &der the head of the party that
         nominates them. I . ."
     We assume from your question that you
                                        . are ^^.
                                               referring
                                                     .   to
candidates for district, county ana precinct ofsice wno are
required by law to pay their assessment to the chairman of the
county executive committee, and not to candidates for state office
or for the Court of Civil Appeals or Congressman at Large, who
pay their filing fees to the state executive committee.
 Honorable William Hunter,   Page 3      Opinion No. WW-1294


       It has been held in King v. Fitch, 181 SW2d 926 (Civ.
X App. 1944) and Fisher v. Dallas County Democratic Executive
  Committee, 333 SW2d bo4 (Civ. APP., 1960) that payment of the
  assessment two days after the deadline and one day after the
  deadline, respectively, was substantial compliance with the
  statute. But nowhere do we find that an announced candidate
  may wholly fail to pay any assessment at all, and still be
  entitled to have his name placed on the primary ballot. To
  hold that such was the law would be contrary to the language
  of the statute, and would prevent the holding of any primary
  at all, since the assessments pay the expenses of the primary.
  Your question skips over the primary and goes to the General
  Election to be held in November. Certainly, no candidate's
  name should appear as a nominee of his party on the General
  Election ballot, if he is not selected as a nominee in the
  primary except in cases of death of the nominee as provided
  in Art. A .22, Election Code). Of course the voters may select
  a nominee by write-in votes. But in the situation you have
  outlined in your first question, the candidate has filed his
  application for a place on the party ballot for the general
  primary, and has not paid his assessment. We hold, therefore,
  in answer to your question that if the candidate will not make
  substantial compliance with Art. 13.15, Texas Election Code,
  his name cannot appear on the primary ballot. If, thereafter,
  he is not chosen *by the voters as their nominee by write-in
  votes in the primary, his name cannot appear in the party
  column on the General Election ballot as the nominee of the
  party, as provided in Art. 6.01, Texas Election Code.
      You have also asked the following question:
         "If a party holds primary elections only
      in part of the precincts in a county, but not
      all, can or must a winning candidate's names
      for that party appear on the November ballot?"
      This question has already been answered by Attorney General's
 Opinion No. V-1529, written in 1952 to County Attorney R. C.
 Marshall of Hutchinson County, copy of which opinion is enclosed,
      Your third question reads:
         "Can a person convicted of a felony, who,
      thereunder, served a penitentiary sentence and
      had not received a pardon, have his name on the
      Election Ballot, and if elected, is such candidate
      qualified to hold the office?"
      This last uestion has been answered by Attorney General's
 Opinion No. O-2;t
                 98, written in 1940 to County Attorney J. W.
 Strawn of Willacy County, copy of which is enclosed.
Honorable William Hunter, Page ;4       Opinion No. WW-1294


                          SUMMARY

              A candidate who files for district,
         county or precinct office, and who refuses
         to pay the assessment set by the county
         executive committee, is not eligible to
         have his name printed on the ballot for the
         general primary, as provided by Art. 13.15,
         Texas Election Code.
              Only the nominees of the party are
         entitled to appear in the party column on
         the General Election ballot. Art. 6.01,
         Texas Election Code.
                               Yours very truly,
                                WILL WILSON
                                Attorney General of Texas


                                By: @%      ++=
                                     Riley Eugene Fletcher
                                     Assistant

REF/cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Elmer McVey
Morgan Nesbitt
Gordon Zuber
Pat Bailey
REVIEWED FOR THE ATTORNEY GENERAL:
By: Houghton Brownlee, Jr.
