                    June 25, 1956




Honorable Tom .Reavley        Opinion Nc.~S-202
Secretary.of State
Austin, Texas                 Re:   Statements of campaign
                                    contributions and expendi-
                                    tures which candidates
                                    are requi,redto file.
Dear Mr. Reavley:
          We are in receipt of your request for anopinion,
reading as follows:
         "Article 14.08 of Vernon's Election Code     _
    relates to statements of campaign contributions
    and expenditures which candidates for office
    ape required to file, and provides that the
    statements of candidates for district and state
    offices, as defined in Chapter 14 of the Election
    Code, shall.be flled~with the Secretary-of:State.
    Article 269 of the Penal Code also-relates to
    statements of contributions and :expenditures to
    be filed by candidates for nomination in pri-
    mary elections, their campaign managers and.
    assistant campaign managers, and provides that
    the statements required of candidates for state
    and district nomination and their campaign
  : managers shall be filed with the Secretary of
    State.
          "In Attorney General's Opinion S-132, dated
     June 29, 1954, your office held that Article 269,.
    ,of the Penal Code was repealed by the enactment
     of Article 14.08 of the Election Code.

          ('Inthe case of Ex parte Sanford, decided
    .on May 2, 1956, the Court of Criminal Appeals
    held that the Election Code in providing that
    'nothing in this Act shall be cdnstrued as re-
    pealing or in any way affecting the'legality of
Honorable Tom Reavley, page 2     (S-202)


        any penal provision of the existing law,"
        thereby exempted Article 265 of the Penal
        Code.from repeal and left such article in
        full force and effect.' The Court held
        further that the statutes involved in that
        case (Articles 14.04 and 14.06 of the
        Election Code and Article 265 of the Penal
        Code) were in irreconcilable conflict both
        as to the offense denounced and the penal-
        ties applied to a vlolation thereof, and
        as a consequence both the Election Code
        provisions and the Penal Code provisions
        were invalid Insofar as they prescribed
        a criminal offense and a penalty there-
        for.
              "It appears that under the Courtts
        ruling in Rx parte Sanford It must be
        concluded that Article 269 of the Penal
        Code has not been repealed and that this
        decision overrules the holdzng in Attorney
        General's Opinion S-132. It also.appears
        that Article 14.08 of the Election Code.
        and Article 269 of the Penal Code are not
        In Irreconcilable conflict and that both
        statutes are now In full force. In order
        .that this office may knowwhat our duties :
        are with respect to the acceptance and filing
        of campaign'expenditure statements, we shall '~    "'.
        appreciate your advising us whether candi- -. ~.
        dates are required to file s'tatements.in.
        accordance with the provisions of both oft
        these statutes."
           You are correct Ln concluding that our holding
in.Oplnlon S-132 that Article,269 of the Penal Code had
been repealed by the enactment of the Election Code-of
1951 has been overruled by the decision in Ex parte San-
ford, ~289 S.W. 2d 776. (Tex..Crlm.1956). Nor was It
repealed by the act of the 54th Legislature amendlng~
Article 14.08 of the Election Code (Ch. 145, Acts 54th
h3., 1955, P. 503).
          The next question to consider is whether Article
14.08 of the Election Code and Article ~269 6f the Penal
Code are in irreconcilable conflict and hence void as to
either criminal or civil liability for violation of their
provisions, under the prlnclple.on which Ex parte 'Sanford
was decided.
  Honorable Tom Reavley, Page 3   (S-202)



           ' Article 269 of the Penal Code requires each
  candidate for nomlnatlon In a primary election, and
  each campaign manager or assistant campaign manager
  for a candlcate, to file a sworn statement of contri-
  butlons and expenditures not more than 30 days nor
  less than 25 days prior to the date of the primary
  election, and another sworn statement not more than
  12 days nor less than 8 days prior to the.date of the
  primary. The penalty for violation of this article is
  set out In the following paragraph:
            "Whoever shall wilfully and corruptly
       make any false oath, affidavit or sworn;
       statements in complying with the require-
       ments of this article shall be fined not
       to exceed $1000.00 or be confined In jail
       for not more than one year, or both, or be
       confined in the penitentiary not less than
  -    one nor more than five years."
 The civil statutes requiring the filingof this setof
 reports and provldlng the civil penalty for violation.-
 '(Articles 3172 and 3173, 'R.C.S. 1925) were expres.slz',re-
 pealed by the Election Code.                           _

             Article 14.08 of the Election Code, as ,amended.
  by the 9th Legislature, requires each candidate (wfth:
  exceptions which.we need not note) at a primary, special,
   or general electionto file a sworn statement of contri-.
  butlons and expendltures not less than 7 nor more,,than10
;. days prior to the day of the election and a supplemental
   statement not more than 10 days after the day of the
   election. Violation of this article by failure to file
   the statements or by swearing falsely In any statement
   subjects the candidate-to.civil llablllty to opposing
   candidates for double.the amount or value of the unre-
   ported Item, to forfeiture of his right to.have his name
   placed on the ballot at a subsequent election, and to
   the following drimlnal liability:
            "If any candidate fails to file such
       sworn statement at the time provided herein
       or swears falsely therein, he shall be subject
       upon conviction to a fine not less.than One
       Hundred Dollars ( 100) nor more than Five
       Thousand Dollars t$5,000), or be Imprisoned
       in the penitentiary not less than one (1) nor'
       more than five (5) years, or be both so fined
       and imprisoned."
    Honorable Tom Reavley, page 4 (S-202)
    ..            ..

              Since no civil liability attaches for violation
    of Article 269 of the Penal Code we do not believe any
    conflicts In the criminal asoecti of these two statutes
    would affect civil liability-under Article 14.08 of the
    Election Code.
              It is seen that the criminal penalties provided
    in the two statutes are at variance. But is there an
    Irreconcilable conflict in the offenses to which these
    penalties attach? Unlike the situation in Ex parte Sanford,
    a person may comply fully with the requirements of each
    statute without having in any way infringed upon the other.
    Under the statutes involved In Ex parte Sanford a person
    who spent between $10 and $25 for campaign purp&es was
    doing a lawful act under one statute but an unlawful act
    under the other. Also, an expenditure in excess of $25 was
    a violation of each statute, but the penalties provided
    were different. But the filing of statements under Arti-
    cle 14.08 df the Election Code is not p'rohibitsdby Article
    269 of the Penal Code, and vice versa, nor is the failure
    t.c,
       file ~statementsunder one statute a violation of the
    other. While both statutes evidently were enacted to sub-
    serve.the same purpose In primary elections,..theyare not
.   in direct and irreconcilable conflict as to the offense
    deenounced. Two different sets of offenses are created,
    neither being In conflict with the other,-aridthe fact
    that.the penalties for these offenses are not Identical
    ia not.a ground for declaring either statute invalid.
       .-.
              We are therefore of the opinion that both statutes
    are Inforce and neither Is Invalid because of the existence
    of the other.
              Article 269 of the Penal Code states unequivo-,
    tally that the candidates and campaign managers ara re-
    quired to file the statements, but the only penalty attached
    to a violation of this article is for making.any false oath,
    affidavit or sworn statements in complying with the re-
    ~quirementsof the article. Article 3 of the Penal Code'pro-
    vides that "no person shall be punished for any act or
    omission, unless the same is made a penal offense, and a
    penalty is affixed thereto by the written law of this
    State." In order that a person be punished for an act
    or omission, a penalty therefor must be prescribed by
    statute. 12 Tex. Jur., Criminal Law, $16, and cases there
    cited. Consequently, a candidate who falls to file state-
    ments required by Article 269 of the Penal Code will not
                                                             ‘7s

Honorable Tom Reavley, page 5 (S-202)



subject himself to either civil or criminal liability for
such failure. However, while there Is no penalty for
failure to file, the filing of these statements Is au-
thorized by law and it is your duty to accept and file
statements which are tendered to you under Its terms.
          It is also your duty to accept and file state-
ments which are tendered to you under the terms of Article
14.08 of the Election Code. Candidates who are required
to file statements In accordance with Article 14.08 will
subject themselves to both civil and criminal liability by
failing to file them.
          Your office is not directly concerned with
Article 252 of the Penal Code, but we would like to append
a statement regarding It. This statute reads as follows:
          "Any candidate for any public'offlce,
     whether elected or not, who falls to file with
     the county judge of his county within ten days
     after the date of a general election an
     itemized statement of all money.or thin& .of :
     value paid or promised by him before or durlng
     hi8 'candidacyfor such office, lncludlng his.'
     traveling expenses, hotel hllls'and money paid
     to newspapers, and make.an affidavit to the 1.::
     correctness of-suchaccount, showing to whom:'
 .   paid or promised, shsll~be.fined.not less thrln
     two-.hundrednor more than-five hundred dollars."
          ' In Opinion V-l&  “(1952) this office expressed
-the vie& that Article 252 had been repealed by the enact-
 ment of Article 14.08 of the Election-Code, but cautioned
 thst "because of our uncertainty that this view would be
 sustained by the courts, It Is our advlce that candidates,
 Zn order to be sure of compliance with statutory require-
 merits,also file the statement described In Article 252 of
 the Penal Code." In the light of the decision in Rx parte
 Sanford, the view expressed in our opinion was erroneous.
 All candidates for public office in the general election
 are required to file the statement required by,thls
 article. It is our opinion that the supplemental state-
 ment to be filed within 10 days after the general election
 by opposed candidates in that election under Article 14.08
 of the Election Code will notsatisfy this requirement.
Honorable Tom Reavley, page 6 (S-202)


                        SUMMARY

          Article 269 of the Penal Code, requiring
     candidates in primary elections and their
     campaign managers and assistant campaign mana-
     gers to file statements of campaign contribu-
     tions and expenditures, has not.been repealed.
     Both this article and Article 14.08 of the
     Election Code, also requiring the filing of
     statements by candidates, are In full force.
         Article 269 of the Penal Code does not
    provide a penalty for failure to file the
    statements required by it, and a candidate
    who falls to file these statements will not
    subject himself to either civil or criminal
    liability for such failure. However, It Is
    the duty of the public officers with whom the
    statements are required to be filed to.accept
    and file statements which are tendered to them
    under Its terms.
          Candidates who are required to file state-
     ments In accordance with Article 14.08 of the.:
     Election.Code will subject themselves to both.;
     civil and criminal llablllty by falllng,to    .
     file them. The making of a false oath in con;
     nectlon with any statement filed under either
     Article 14.08 or Article 269 will subject then-
     person making It to the full liability, whether
     civil or‘cr$mlnal, which is provided in:these
     statutes.
          All candidates in the general election.
     are required to file statements In accordance..,-
     with Artlc’le 252 of the Penal Code in addition   .~.
     to the statements which opposed candidates in
     the general election are required to file under;~
     Article 14.08 of the Election Code.
          Att'y Gen. Ops. V-1509 (1952) and S-132
     (1954) are overruled Insofar as they hold that
-.




     Hon. Tom Reavley, page i (S-202)



          Articles 252 and 269 of the Penal Code have been
          repealed.
                                    Yours very truly,

                                    JOHN BEN SHEPPERD
                                    Attorney General

     APPROVED:
