                 EA         EY     GENERAL




                       July 12, 1962


Honorable William J. Lowe        Opinion NO. ~~-1380
County Attorney
Donley County Courthouse         Re:   Whether a candidate, who
Clarendon, Texas                       failed to timely file a
                                       sworn statement of his cam-
                                       paign contributions and ex-
                                       penditures, as required by
                                       Art. 14.08 Election Code,
                                       may be certified for the
Dear Mr. Lowe:                         General Election ballot.
    Your letter requesting an opinion reads in part as follows:
            "There were two candidates elected for
         the run-off for the office of Justice of
         the Peace in the second primary, and the
         candidate who won the run-off did not
         timely file his required list of contri-
         butions and expenditures of his campaign.
         The last date on which the candidate
         could have filed such list was April 27,
         1962, but he did not file it until May 4,
         1962.
            "Will you kindly let me know whether
         or not such candidate can be certified
         as the Democratic nominee for such of-
         fice?"
    Article 14.08, Texas Election Code, reads in part as follows:
            I!
             . * .
             "(b) Each candidate whose name appears
         on the ballot at a first primary election
         or a special election and each opposed can-
         didate whose name and whose opponent's name
         appear on the ballot at a general election
         shall file a sworn statement, not less than
         seven (7) nor more than ten (10) days prior
         to the day of each such election, of all
         gifts and loans previously received and of
         all gifts, loans and payments made and all
         debts incurred and obligations incurred or
Honorable William J. Lowe, page 2              Opinion No, ~~-1380


         contracted for future use in behalf of such
         person's candidacy for office. The state-
         ment must include all such gifts, loans,
         payments, debts and obligations made or
         incurred whether before or after the an-
         nounced or filed candidacy of such person.
         Not more than ten (10) days after the
         election the candidate shall also file
         a supplemental sworn statement of all
         gifts and loans received prior to the
         election and of all gifts, loans and
         payments made and debts and obligations
         incurred prior to the election not speci-
         fically included in the sworn statement
         filed prior to the election." As amended
         Acts 1955, 54th Leg., p. 503, ch. 145,
          Sec.   1.

            "(c) Each candidate whose name ap-
         pears on the ballot at a second primary
         election shall file a similar sworn
         statement not less than seven (7) nor
         more than ten (10) days prior to the day
         of the election and a similar supplemen-
         tal sworn statement not more than ten
         (10) days after the day of the election."
         As amended Acts 1955, 54th Leg., p. 503,
         ch. 145, Sec. 1.
            II
             . . .
            "(h) Any candidate falling to file
         such sworn statement at the time pro-
         vided or swearLng falsely therein shall
         forfeit his right to have his name placed
         upon the bal1o.cat any subsequent primary,
         special, or general election." Acts 1951,
         52nd Leg., p. 1097, ch. 492, Art. 244.
     Thorp v. Murchison, 259 S.W.2d 614 (Civ.App. 1953) was an
election contest in which appellant tried to take advantage of
Section (h) of Art. 14.08, Election Code, and contested the right
of the appellee to hold the office of Constable which he had won
in the General Election, on the ground that appellee was not en-
titled to have his name on the ballot, since he failed to file
expense accounts in connection with his candidacy for such office
during the Democratic primary. The Court held that Section (h),
Art. 14.08 was not available to be used by a defeated candidate
to contest the right of the winner of the election to hold office.
Honorable William J. Lowe, page 3               Opinion No. WW-1380



     Owen v. Longuemare, 268 S.W.2d 701 (Civ..App.1954) involved
an application by relator for a writ of mandamus to compel the
County Democratic Chairman to print relator's name on the Demo-
cratic primary ballot. The County Chairman had evidenced his in-
tention to leave relator's name off the primary ballot because
it had been made known to the County Chairman that Relator did
not file his sworn statement of gifts, loans and payments at the
time required in Art. 14.08. The Court stated at page 701:
             "In our opinion such Code does not
          place the responsibility upon the Chair-
          man of the Committee or the Committee,
          or authorize him or it to determine whe-
          ther or not Art. 14.08 of the Election
          Code, V.A.T.S. has been violated, and
          to refuse to place the name of Relator
          on the ballot. In our opinion the pro-
          vision of Art. 14.09 of the Election
          Code, V.A.T.S., providing for a quo war-
          ranto proceeding to enforce the provi-
          sions of the statute is exclusive, and
          such provision has not been here invoked
          or complied with."
The Court directed that a writ of mandamus issue to compel the
County Chairman to place Relator's name on the primary ballot.
     The case of State ex rel. Butchofsky v. Crawford, 269 S.W.2d
536 (Civ.App. 1954) appears to be the first case filed in the man-
ner required by the Election Code. The District Attorney brought
the suit in the name of the State, in behalf of one Butchofsky,
against Crawford, to determine the right of Crawford to have his
name placed on the ballot as a candidate for Justice of the Peace.
Mr. Crawford then held that office, was seeking Fe-election, and
no other person had filed at the closing date fixed by law for
such filing. In 1954, Sec. (b) of Art. 14.08, Election Code,
provided that sworn statements be filed by candidates at inter-
vals of twenty (20) days, beginning on the 60th day next preced-
ing the day of election. The 60th day before the primary was
May 25, 1954.  Mr. Crawford did not file a statement with the
County Clerk on that day, but did file It at 9 a,.m.on May 26,
1954.
     !theCourt held that with respect to whether a sworn state-
ment was filed at all, the statute is mandatory, and a sworn
statement must be filed..,The Court also held that the exact
time of filing is directory, but that a candidate must reasonably
and substantially comply with the time of filing. The Court
Honorable William J. Lowe, page 4              Opinion No. ~~-1380


held that in this instance, the candidate was only one day late
and that he had substantially complied with the statute.  The
Court directed County Chairman Longuemare to print the name of
the candidate Crawford on the ballot for the Democratic primary.
The Court stated at page 542:
             "In holding that the statute is manda-
          tory in requiring a candidate to file this
          statement and is directory as to the time
          when such statement must be filed we do
          not mean that a candidate must not substan-
          tially comply with the provisions of the
          act as to time of filing this statement.
          This he must do, and his failure to do so
          will be grounds for excluding his name




     The Court   also stated the reason for requiring sworn state-
ments of expenses, loans and gifts, when it said at page 542:
               II
                . . . The purpose of requiring such
          statements to be filed is that the same
          may be open to public inspection that
          the voters may determine what persons
          are influencing by contributing money
          or credit, or other substantial aid to
          a candidate, that the public may lntel-
          ligently determine whether or not they
          should support such candidate. . . .'

       The first Primary was held on May .5,1962.  If the candidate
who was late in filing his expense account had not filed such
sworn statement until after the Primary election had already been
held, it would have certainly violated the purpose of the statute
as set out above. Whether or not filing such statement on the
day before the election, instead of not later than seven (7) days
before the election as required by the statute, constitutes "rea-
sonable" and "substantial" compliance is a fact question to be
determined in the light of all the circumstances. Neither the
County Chairman nor the County Executive   Committee are authorized
to make this determination. The County Chairman and County Exe-
cutive   Committee must certify the name of the candidate who re-
ceived a majority of votes insthe Second Primary, without regard
to whether or not he failed to timely file his sworn statement
Honorable William J. Lowe, page 5                              Opinion No. WW-1380


of expenses, gifts and loans as orovided for Sn Sets. (h\ anA
                                c-----~--.      ---      ---    -----   \-,   -._-

(c) of Art. 14.08, Election Code. Owen v. Longuemare,.supra.
Any determination of these facts, to have! any   _
                                             _ legal and binding
effect, must be determined by the courts.
                          SUMMARY
          The County Chairman and the County Executive
     Committee must certify the candidate who received
     the majority of votes in the Second Primary as the
     party's nominee for Justice of the Peace, even
     though such candidate did not timely file his sworn
     statement of expenses, gifts and loans as provided
     for in Sections (b) and (c), Art. 14.08, Election
     Code.
          Whether filing of a sworn statement of ex-
     penses, gifts and loans, only one (1) day before
     the election, instead of at least seven (7) days
     before the election, constitutes reasonable and
     substantial compliance with Sections (b) and (c)
     of Art. 14.08, Election Code, is a fact question,
     which can only be determined by the courts.
                                             Yours very truly,
                                             WILL WILSON
                                             Attorney General of Texas



                                                      Riley Ebgene Fletcher
F3F:rk                                                Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Elmer McVey
Tom Hunter
REVIEWED FOR THE ATTORNEY GENERAL
BY: Le,onardPassmore
