    -.

Hon&rabls 0. A. Walters
County Attorney
San~Sah county
Sansabp, Texas

Dear sir:                                Opinion NC, O-2632-A
                                         Re: Demoorafio wminse for offioe
                                             of county attorney--ineligible
                                             candidate receiving majority of
                                             votes 0 art0

       This will aokn-ledge receipt of your letter of August 23, 1940, rsquest-
ing'a‘~supplementto Opinion ND. O-2632 with respect to whether or not the pres-
ent incumbent should bs osrtifisd as the Demooratic nominee for the offioe of
'CountyAttorney.

       The faots are that two men were oandidates for the Democratio nomination
for the offioe of county attorney. An ineligible oandidate reoeived a majority
of the votes east and the inoumbent received the second largest number.

       III Allen VS. FIshor, 118 Tax. 38, 9 S.W. (2dl Y31, three men inoluding
the incumbent were candidates for the office of di&ri&    attorney. The candi-
date receiving the largest number of votes was ineligible for the office and the
second high man. the inoumbant, deemed himself the nominee. ,Howwe~ the aourt
said:

'Qdsr the provisions of Article 3102 of the statutes, no wndidate for the
ofxice of distzict attorney is entitled to have his name go on the offfoial
Iallot at the general election in November, as the nominee of the Demooratic
party, unless, in the primary election held by that party, he ~eoeives a
majority of the votes Cast for all the candidates for said nomination. The
allegations of the plaintiff's petition show that the plaintiff, as candidata
for the nomination for distriot attorney, did not receive suoh a majori* in
either the July or the August primary eleotione Regardless, therefore, of
whether Braly is eligible or not, the plaintiff oannot be declared the Demo-
oratic nominee for that office. For, notwithstanding a candidate be insligi-
ble to the offioe he seeks, and thereby disqualified to be nominated therefar,
and in known by the voters tobe so, the votes cast for hii iust be taken into
account in detennlning whether or not his opponent has received a ma osity of
the votes east. MoCrary on Eleotions (4th Ed.) 8 3306 20 C-JoP* 20;I s and
authorities oited in footnote 43."
Hon. G. A. Walters, page 2 (O-2632-A)



       It is clear that under the case of Allen vs. Fisher, supra, votes
east for an ineligible oandidate must be considered in determining whether
or not an eligible one has received a majority. You are therefore respsct-
fully advised th& it is the opinion of this department that under the
faots given in your latter the present incumbent is not the Democratic
nomlnse for the office of county attorney.

       For your information'the correot citation for the ease of Callaghan
vse Tobin, is 40 Tex. Civ. App. 441, 90 S.% 328, For your further inform-
ation in Opinion No. O-2632 we cited a previous opinion by this department,
Noo 2285. This opinion request was withdrawn prior to the issuanoe of the
opinion. Opinion No0 O-2632 will supplant No. O-2286 as authority for the
holding therein.

                                               Very truly yours

                                           ATl'ORNEYGENERALOFTEXAS


                                           By /s/James   Do Smullen

                                                   James D. Smullan
APPROVED AUG 31, 1940                                      Assistant
/a/ GROVER SELLERS
FIRST ASSISTANT                                      APPROVED
ATTORNEY GENERAL                                  Opinion Canmittee
                                                     ByBWB
SDS:dbregm                                           Chairman
