                        AUSTTN 11. TEXAS      Superseded by amdndment
                                              to Art. 14.01 Texas Electi
                                              Code in 1963
                           March 2, 1953

Hon. Austin F. Anderson           Opinion No. S-15
Criminal District Attorney
Bexar County                      He: Applicabilityof campaign
San Antonio, Texas                    expenditureprovisions In
                                      the Texas Election Code
Dear Sir:                             to municipal elections.
         You state that the City of San Antonio will hold an
election For city councilmen on April 7, 1953, and you re-
quest an opinion of this office on the following question:
              "Do the provisions of Chapter 14 of the Texas
       Election Code (Chspter492, Acts 52nd Deg., 1951,
       p. 1097), relating to campaign expenditures,apply
       to municipal elections so that a county or district
       attorney   may prosecute candidates for municipal
       offices for violations of the same?"
         If the csmpalgn expendftureprovisions of the Elec-
tion Code are applicable to mnnlclpal elections, the appllca-
bility must be found in the definitions contained in Section
237 of the Code. Section 237 reads:

            'The word 'candidate'shall mean any person who
       has announced to any other person or to the public
       that he is a candidate for the nomination For or the
       election to any office which the laws of this State
       require to be determined by an election. The words
       'countyofflcet shall mean any office to be filled
       by the choice of the voters residing in only one (1)
       county or less than one (1) county. The words
       'districtoffice' shall mean any office to be Pilled
       by the choice of the voters residing in more than
       one (1) county. The words 'state office' shall mean
       any office to be filled by the choice of voters of
       the entire State. . . ."
         Section 239 states the purposes for which a candi-
date may ma.kc campaign expenditures. Section 244 requires
the candidate to file statements showing contributionsand
expenditures,such statements being filed with the county
clerk in the case OF county oFfices and with the Secretary
of State in the case of district and state offices. Section
242 subjects any candidate who makes an unlawful csmpalgn
Hon. Austin F. Anderson, page 2 (S-15)


expenditureto a Fine of $100 to $5000 and to imprisonment
in the penitentiaryfrom one to Five years; and Section 244
makes any candidate Failing to file, or awearing Falsely In,
the statementsrequired by that section subject to similar
criminal penalties.
         It is our opinion that the provisions OF Chapter 14
do not apply to elections For city councilmen in the City of
San Antonio, which Is a home rule city. Section 237 defines
a candidate as any person who has announced that he Is a
candidate for an ofFice which the laws of this State re ulre
to be determined by an election. There Is no law of x&i---
State requiring that officers of a home rule city be selected
through an election. To the contrary, Article 1175, Vernon's
Civil Statutes, expressly states that home rule cities may
determine the manner and mode of selecting officers. Under
this power, the charter of a home rule city might provide-for
the selection of Its governing body by some manner other than
by election. In State ex rel. Cline v. Norris,  33 S.W.2d 050
(Tex.Civ.ADD.1930)nctlon
                    .                                between
nominatio&‘whl& the laws of this State rc uire to be made
through primary elections and those which-&--izw* pC,I$l$ttter
be made In this manner. We think the term "laws of
was here intended to refer to the Constitution of the State and
statutes enacted by the Legislatureand was not Intended to
include charter provisions or ordinances adopted pursuant to
constitutionalor statutory grant of power to municlpalltiea.
Therefore, since there Is no constitutionalprovision or legis-
lative enactment requiring a home rule city to elect Its gov-
erning body, it is our opinion that candidates For the office
of city councilman of the City of San Antonio do not come
within the definition OF candidate in Section 237.
          WC also agree with your conclusion that these Pro-
visions do not apply to municipal elections generally.   It
must be conceded that the deFinition of candidate contained
in Section 237 Is broad enough to include candidates for
certain municipal offices, as well as elective ofFices for
political subdlvlslons,such as school districts, junlor
college districts, water districts, soil conservationdls-
tricts, and 80 on,--in brief, all offices which the laws of
the State require to be Filled by an election.   Likewise,
the definitions of county office, district office, and state
office are comprehensivetnough to include all such offices.
However, it is our opinion that the Legislature did not in-
tend to encompass such a broad range within these definitions.
         The statutes which were predecessors OF the cam-
paign expenditureprovisions in Chapter 14 of the Election
Code (Arts. 3168-3173,V.C.S.) applied only to nomination
, t.

                             ,, page ,3 (S-15)
       Hon. Austin F. Anderson


       for OFfices which the law8 of the State required to be deter-
       mined by a primary election. The deflnltlons of ceunty, dls-
       trlct, and state nomination respectivelycorrespondedto the
       present definitions of county, district, and state office.
       Similarly, candidates for county nominationswere required
       to file statementswith the county clerk and candidates for
       state and district nominationswere required to File state-
       ments with the Secretary of State. In State ex rel. Cllne
       v. Norris, supra, the court held that these statutes applied
       only to primary elections which were required by law, namely,
       the primaries which Article 3101, V.C.S. (now Section 180 of
       the Election Code) required certain political parties to hold
       for nominating candidates for congressional;state, district,
       county, and precinct offices in the general election held
       every two years on the First Tuesday after the firstMonday
       in November in accordancewith Article 2930, V.C.S. (now
       Section 9 of the Election Code).
                It is seen that the change made In Section 237 was
       to extend Its provisions to include candidates For election
       to an ofFice as well as For nomination for the office. 'de
       are of the opinion that these changes in Section 237 were
       intended only to extend the types of election8 so as to in-
       clude general and special elections for the oFfices to be
       filled and were not intended to enlarge the classes of of-
       fices which the candidateswere seeking.
                WC wish It to be understood that this opinion is
       directed to you as a prosecuting officer inquiring about
       his duties under the law. It is not to be taken as advice
       to county clerks or other officer8 that they should not
       accept statementswhich the candidatesmight proifer For
       Filing. Until there has been a legislativeclarification
       or a judicial interpretationof these provisions,we be-
       lieve it the wiser course for these officers to accept
       statementswhich are tendered to them for Filing.
                                SuMMAFiY
               The provisions of Section 239 of the Texas
          Election Code (Art. 14.03, Vernon's Election Code)
          limiting the purposes for which campaign expenditures
          may be made, and of Section 244 OF the Election Code
          (Art. 14.08, Vernon's Election Code) requiring the
          filing of sworn statements of cempalgn contributions
          and expenditures,a0 not apply to candidates for
          municipal oFfice in a city election. They apply
          only to candidates for nomination for or election
          to Full terms and unexpired terms for offices which
Hon. Austin F. Anderson, page 4 (S-15)


   are regularly filled in the general election held
   pursuant to Section 9 of the Election Code.
APPROVED:                      Yours very truly,
Willis E. (iresham             JOHN BEN SKEPPWD
Reviewer                       Attorney ventral
C. K. Richards
Reviewer
                               BY **be
Robert S. Trottl                   Mary    K. wall
First Assistant                          Assistant
John Ben Sheppcrd
Attorney General

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