                  THEA'ITORNEYGENERAL
                                    OF     TEXAS
                                                                 I                      I

   WVILL WILSON
*1TOWNEYG~NER*L
                                      August    28, 1952

           Hon. Raymond Ec Magee                Opinion     No*, V-i513
           County Attorney
           Galveston County                     Re: Procedure       ,to place, a nare
           Galveston,  ‘Pexas                           on the ballot     at the gen-
                                                        era1 election     as an-de-
                                                        pendent candidate      for a
           Dear Sir:                                    preoinot   effic4i0
                       In your. r~eque st for an opinion you state that
           a, groups of Galveston    County citizens      have approached
           the County Jud e with. regard to running an independent
           candidate   for &he position      of justice    of the peace in
           the forthcoming    general    election.      In this connection,
           you have requested     a construction      of Section 230, Xexar
           Election   Code ~(V.C.S. Election, Code, Art. 13.531,which
           reads:

                           “Independent     candidates        for office at.
                   a county, city, or town election                 may have
                   their names printed         upon the official           bal-
                   l@ on application          to the County Judge             if
                   for a county office,          or to the mayor If
                   tar a aity or towns office              such appllcatlon
                   bring in the same form an A subject                to the
                   same requirements        herein prescribed           for ap-
                  .plicatlonr      to be tide ,tethe          Secretary     of
                   State in ease of State or district                 independ-
                   ent aomlnation~; provided,            that in county
                   elect,ions    It shall be necessary            for nomina-
                   tion of independent          candidate’s      for the in-
                   depend,ent candidate        to file a petition           with
                   the County Judge, signed by five per cent
                   (5%)    of the entire     vote cast i,n, such county
                   at then last general
                   such candldatr
                   iice.
                                         fora   election
                                                 partic&
                              And provided further,
                                                                endorsing.
                                                                  couuty o?*
                                                              in eleatlonr
                   for a city or town offLce               it shall not be
                   neoessary     that independen 1 candidates ”            be
                   noabated        but anyone otherwise           qualified
                         harr his name printed               on the official
                                      artlcula?       offY ce by flling
                                      ication      with the Mayor at
                                                           --        .-

                                                                I




L            Hon. Raymond E. Rages,        page 2     (i-1513)


         .          least    thirty    (30) days prior to the
                    election      day and by paying such~fillng
                    fees as may be required       by Statute   or
                    by charter      provision.”
                       .   The questions    which you have asked            are:
                            (1)’ Does Section     230 apply         to preofnct
                   ’ offices?
                            (2) If Section 230 does ap$ly to pre-
                     cinct, offices,     is the percentage      of voter8
                     who mnst. stgn the applicati@n        base.d en the
                     total   number ‘bf Votes cagt in the~‘entire
                     cdunty or enly on the number of votes &n
                     that preainot?
                                                                       ,
                            Section 230 does not expressly         ‘mention pre-
              cinct offices.        It st.ates that independent       candidates
              for a mtv         ofrice may have their      names placed on the
              ballot    on application      to the county judge, but it con-
              tainsno      other provision      which might be construed       to
              include ,,candidates      for precinct   offices.     ,.We.must de-
              teradne,‘whether      .the Llgitilature  thereby’ ititended to ex-
              clude the placi g of :&he names of indepepdeut              candidates
              for precinct’ of f ices on the ballot        or whether it intended
              to embrace them within the term “county office.”
                      -~ In Section 237 of the Election             Code, the words
              “county office” are defined to mean ‘Iany office to be
    r’        filled  by the ohoice of the voter8 residing               in only one
    s         (1) oounty or less than one (1) county.”               This defini-
              tion clearly    includes    precinct     offices.     However we are
              of the opinion that the definitions             In Section 237 were
              intended to apply only to the provisions              relating    to cam-
              fiaign expenditures     found in Chapter 14 of the Election
              Code, of which Seotion 237 is a part.              We must therefore
             .arrlve at the legislative         intent    in Section: 230 independ-
              ontly of the d?flnition        set out In Section        237.
                             Pr&ct        office8    are mentiohed in numerous
             ‘jplaces throughout        the Rlectlon      Code, and generally    the
               statutes’applicable         to them specify     them by that name.
               Rowever, the term usually            appears in the phrase ncounty
               and precinct      office,n      euounty or precinct    office   w or
               ;zF$;Flar         phrase linking       these two claseifica&me.
                              25 118, 18.5, 190, 203, 204, 208, 231, 233.
               The elea~lon’procedures           for these two type6 of offices
                                                                                          a’
     Hon. Raymond E. Magee,             page    3 (V-1513)



     are consistently           identical:         application        for a place
     on the primary           ballot      Is filed     in the same way; re-
     turns     are canvassed         and certificates           of nomination
:)   and of election          are issued        in like manner.            It is quite
     natural      that county and precinct                offices     are-treated
     similarly,        since precincts         ‘are subdivisions          -of the coun-
     ty and the precinct             officers      -- justices        of the peace
     and constables         as well as members of the commissioners~
     court     --   are   under    the general        administrative          jurisdic-
     tion.of      the county.         Section      24, Article        V of the Con-
     stitution,        which provides         for the removal of “county
     judges,      county attorneys.,          clerks      of the distrlct~         and
     county courts,          justices       of ‘the peace,        constabPes,       and
     other county officers              11 clearly     treats      a justice       of the
     peace as a county officer.                    ;    i
                    Offices      which ,&e filled          at the general          elec-
     tion   are    ordinarily       classified       as state,       district,       coun-     ;
     ty and precinct.            We believe       the Legislature           intended
     in Sections        227 and~‘230 to authorize             nominations         of in-
     dependent      candidates        for all offices         to be filled         at the
     general     election.         Provision      is made.for        nominating
     candzdalics      for,: state     s$d ‘district’      offices ;in Section:          227.       r.
     Although precinck           eff$ce,s afe,@ot men’cfiodsd .by $h?t .hame
     in fiection      230 we ar’e of the.,opinion               th,$t tihey, ere in:
     eluded within         the ‘tern “county         office”      as used in that
     section.       As we have pointed            out, precinct         and county of-
     fices    are treated        similarly      throughout        the election        pro-
     cesses,     and there       is no apparent         ~reaaon for excluding
     precinct      offices     ,in the nomination          of independent          candl-
     dates.      Accordingly,         your first       question      is answered in
     the affirmative.
                In makingtthis     holding   we are not unmindful         of
     the dictum in Hamil on v. Mollpoe 28’7 Sew. 304 (Tex.Civ.
     ~pp. 1926 error     dism. 116 Tex. 153 287 S.W. 306)              to
     the effect  that the words “county       oj!fices”   in the Alec-
     tion laws meant those to be filled         by the electorate        of
     the entire  county*     Since the court relied       in part on the
     definition   of Hcounty nomlnatlo~.”     then contained       in Arti-
     cle 3168, V,c.S.    (now .Sectlon 237 of the Election           Code)
     as being the nomination      for any office      to be filled     by
     the choice of the voters       residing  in only one’county        96.
                                                          understood      how
Hoti, Bayamid      IL Magee,      Page    4 (V-1513)


contest    statute    (Ant, 3041, II.0.S.    1925)           included      the
office   of school trustee,        since ~a school           district      is
a subdivision      of, the county,
                In your s,econd question            you ask how the per-
centage      of voters     who must s~lgn the application                is to
be determined.           Section    230 provides         that the applica-
tion shall       beg signed by five per cent of the entire
vote cast In such county at the last                     general     election.
If it were not for the word "entire,"                     we would have no
difficulty        in concluding      that this provision             meant
for a precinct         nomination,       five per cent of the VoCe
cast in that particular             preainct~      of the county.          We
think     the purpo,se of requiring            a minimum number of sig-               '~
natures      is to' show that there is a sufficient                   number
of qualified        voters     supporting      the nomination         of the
proposed       candidate     to justify      granting        him a place on
the ballot.         It would logically           follow,       and wee so hold
that the persons          signing     the application           for a precinc z
nomination        must be qualified         voters     of the preainct.
Since the electors           in only a portion           of the county will
be voting       on a precinct       office       the same assurance            of
support      for a precinct        candidaEe,is        gained from requir-
ing endorsement          by five per cent of the votes"cast                    ins.
the precinct        as from requiring          five per cent of 'the en-,
tire    county vote for a candidate               who is voted on by the
electors       of the county as a whole.               It would be reasoA-~
able to conclude          that the Legislature             'intended    that the
percentage        of endorsements        required      for precinct        nomi-
nees be computed on the basis                of votes cast in the pre-
cinct s
               When construed    in conjunction    with S.ection
227 it becomes apparent          that the term .,mentire~ vote
cas E " means the number of votes east byall             factionr
regardless      of whether   they were cast for regular          par 4.y
nominees      independent    candidates,AondAated       by petition,,                 ,.
or cand$ates       whose Aataes were written      in,:   Thus it is
seen that this, provision        does 'not necessarily      mean the
vote cast      A th     nti e OAAQ         If the nomination        is
for an' office     tz te fzll&      by ihe voters     of a pre'cinet
of the county,       we think It, reqA$.res only that the appll-
cation     be Signed by fiV0 Per eeAt of the entire            vote
cast in that-preoihct.           -
              There is another    reason for giving                 ,the statute
,thiS construCtiOn.      LA a', ,COUAty .having eight               justicei   pre-
cinctr,   :for esample    it Is possible      that the              number ‘of
qualified     electors 1 A that precinct      would be              less than
                 .,   . _




   Hon. Ramnd          E. Magea, page 5          (,%1513)      ~“’


    ten, ,per cent       or even lers than five per cent, of
    the vote ear 4 in ‘the. o&Ire              oouAty. ‘Sinca the
    &I.eetors slgnfng        the application          for a’preclnot
    candidate      mist be residents           of that ‘precinct        a re-
    quirement that the application                 be signed by ,#lve
    per cent of the entire             county vote would’amQMt to a
    virtual     assurance      of election       before the WiAdidate
    oould have his name placed on the ballot,                     or might          .,
    BvaA~prevent independent              nomlnatlons      altogether*
    Certainly      the ,Legislature         could not have, intended
    the latter       result.     We are also of the OP~A~OAthat
    It had AO intention           of,,requiriAg       aA endorsement &ah
    would be, tantamount          to a’ guaranty        of election     before
    a person. may become an IAdepeAdeAt candidate.’
*.” ‘.‘I < I
                   We are informed that AomiAatioA of, in&-
    pendent candidates          for county and~precindt             officas
    is customary in some of the counties                   of this State.
    We have confirmatim             of the practice        followed IA c&y
    oAe of these counties.             ‘,The County Attorney of Guad-
   .alupe County has advised us that candidates                      for&y
    office      Including      precinct      offices,     have run a,s lnde-
    penden c AOmiAeSS in that county for many years,                        aAd
     that the number of signaturesrequired                    for precinct
     candidates      1,s computed on the basis of the votes oa~rt
     in the precinct.         .Thls ractical          construction      whlah
    has been given
                 -~~       Section     !!30  lends    snmort     to  the    cork-
     elusions    we have reached;            Greenwoo?lmv, Cw
    &&%2v186 S.W&I 1015 (TeX,ClV.App. 1945).




                   Independent  candidates for precinct
           offices     may be Aomlnated IA accardance
           with Section 230, Texas glection       Code
           (V.C.S. section      Code, Art. 13.53,).    They
           are Included within the term “county of-                          ,


           fice” as used in that section.
                The number of qualified     voters who
           must sigA;;the application    of an independ-’
           ent candidate  for a pr,eclnct   office  is
           five per cent of the entire     vote cast IA
HOA. Raymond E* tigee,     page 6    (~1513)


      that precinct    at the last general     elec-
      @on.,, ‘The signers    must be qualified
      vd%iif$- of the- precinct,
APPROVED:                            very tn”uly pars,
J. C. Davis                            -PRICE DANIEL
County Affairs    Divist.0~          Attorney,     General
E. Jacobson
Reviewing Assistant
Charles    D. Mathews
First   (rssistant                               Assistant
MKW:wb
