             THEATTORNEY                   GENERAL
                            OF   TEXAS




                        September 23, 1960

Honorable Zollie Steakley            Opinion No.   WW-943
Secretary of State
Austin, Texas                        Re:   Based on the certificate on
                                           behalf of the Prohibition
                                           Party filed in the Secretary
                                           of State's office, whether
                                           It is the duty of the Secre-
                                           tary of State to certify
                                           for the general election
                                           ballot the candidates of
                                           said party for President
                                           and Vice-President.
Dear Mr. Steakley:
          You have asked our advice on whether, upon the basis of
the following certificate which has been filed in your office, it
Is your duty to certify for the general election ballot the candi-
dates for President and Vice-President listed in the certificate:
     "TO THE HONORABLE SECRETARY OF STATE OF TEXAS
     Austin, Texas
          "THIS IS TO CERTIFY that at a Convention of
     the Prohibition Party of Texas, official notice
     of which was published and mailed ten (10) days
     in advance of said Convention, which was held in the
     City of Houston, Texas on the 18th day of August
     1960, the following persons were nominated as
     candidates of the aforementioned Prohibition Party
     as Presidential Electors.
          "We hereby request, In accordance with the
     laws of the state of Texas, that their names be
     filed as electors of the Prohibition Party, and
     WHEREAS the National Convention of the Prohibition
     Party, assembled at Winona Lake, Indiana, September
     l,2,3, 1960, nominated for President of the United
     States, Rutherford L. Decker of Missouri, and for
     Vice President of the United States, E. Harold Munn
Honorable gollie Steakley, page 2 (WW-943)


    of Michigan, we request that their names also be
    placed on the ballot.
         "The persons nominated as Presidential Electors
    by the Texas State Convention are as follows: Bhere
    are then listed the names and addresses of 24 indi-
    viduals, all of whom are shown to be residents of
    Houston, TexasJ
                            /is/ W. 0. HICKS
                       W. 0. Hicks -- Chairman of Convention

                             S/ LLOYD WYSONG
                       Lloyd Wysong -- Secretary of Convention

                            / / W. 0 HICKS
                       W. 0. iicks --'Chairman of State
                                      Prohibition Committee

                            /s/ LLOYD WYSONG
                       Lloyd Wysong -- Secretary of State
                                       Prohibition Committee"
          The authority of the Secretary of State to raise and
pass on questions of the legality of nominations which have been
certified to him is confined to matters which appear on the face
of the certificate itself or in official records. If a certifi-
cate is regular on its face and there is nothing in the official
records to impeach the validity of the nomination, it is his duty
to act upon the nomination as one having been lawfully made, and
any question of illegality depending upon facts dehors the record
must be left to the courts to decide. Weatherly v. Fulgham, 153
Tex. 481,271 S.W.2d 938 (1954); Ferris v. Carlson, 314 S.W.2d
577 (Tex.Sup. 1958); Baker v. Porter, 333 S.W.2d 594 (Tex.Sup.
1960); Att'y Gen. Op. V-1529 (1952).
          Under the provisions of Articles 11.02-11.03 and
Article 6.05 of the Election Code, the names of party nominees
for President and Vice-President are printed on the general elec-
tion ballot and a vote for the party nominees is counted as a
vote for the electors of the same party. There is no statute
regulating the time and manner for selecting party nominees for
President and Vice-President, but by custom this is done at
national conventions composed of delegates from the participating
states. Article 11.04 of the Election Code provides for the
Honorable Zollie Steakley,   Page 3 (WW-943)


certification of the nominees to the Secretary of State as fol-
lows:
          "The names of the candidates for President and
     Vice-President, respectively, of the Political Party
     as defined in the Law, shall, at least 35 days prior
     to the election, be certified to the Secretary of
     State by the chairman and secretary of the State
     Committee of said party."
          On its face, the certificate which has been filed in
your office complies with this statute and with Article 13.39 of
the Election Code, which provides that every certificate of
nomination made by the president of the State convention, or by
the chairman of any executive committee, must state when, where,
by whom, and how the nomination was made. There is no express
statutory provision for certification of the party's candidates
for presidential electors. In the absence of an express statute,
we are of the opinion that certification in accordance with
Articles 11.04 and 13.39, as was done in this instance, would
clearly be sufficient.
           The certificate recites that the presidential elector
candidates were nominated at a state convention held on August
18, 1960.There is no statute prescribing how or when presiden-
tial elector candidates are to be selected, and "a party is free
to follow any method which it may choose in keeping with party
usages and customs, so long as it does not purs:lea method ex-
pressly prohibited by law." Stanford v. Butler, 142 '?ex.692,
181 S.W.2d 269 (1944); Seay v. Latham, 143 Tex. I, 182 S.W..2d
251 (1944).   These cases recognize tEaatthe candidates mav be
selected at state conventions; which is the customary method for
their selection. If the Prohibition Party could lawfully hoid a
state convention on August 1.8, it cculd nominate its presidential
elector candidates at that convention.
          Article 13.35 of the Election Code fixes the third
Tuesday in September as the date on which parties that cast
200,000 votes or more for Qovemor at the last preceding general
election shall hold th? state convention for canvassing the pri-
mary election returns for state offices and for announcing a
party platform and transacting other business as set out in
Articles 13.37 and 13.38.  Article 13.45 fixes the Monday pre-
ceding the last Tuesday in May as the date on which a state con-
vention for nominating candidates for state cffices and for
United States Senator shall be held by parties whose nominee
for Governor In the last preceding general election received as
many as 10,000 votes and less than 200,000 votes. Artinle 13.58
Honorable Zollie Steakley, page 4 (WW-943)


fixes the second Tuesday following the second primary election
as the date on which any political party desiring to elect dele-
gates to a national convention shall hold a state convention for
that purpose. These are the only statutes fixing the dates for
state conventions.
          The Prohibition Party did not have a nominee for Governor
at the general election in 1958. It therefore does not come within
the provisions of any statute prescribin the time for holding a
state convention other than Article 13.58 , relating to the conven-
tion for electing delegates to a national convention.
                                                        =5%
Latham, supra, held that a party is not required to select
presidential elector candidates at this convention.
          The courts have held that matters not regulated by stat-
ute are within the control of the arty itself. Wall v. Currie,
147 Tex. 127, 213 S.W.2d 816 (19487; Morris v. Miw7
(Tex.Civ.App. 1920). Since there Is no statute which would pro-
hibit the Prohibition Party from holding a state convention for
nomination of presidential elector candidates on a date not desig-
nated by statute for the conventions of parties within existing
statutory regulations, we are of the opinion that the party could
lawfully hold the convention at some other time.
          It is our opinion that the certificate you have received
does not on its face show any invalidity in the nomination pro-
cedures followed by the Prohibition Party. The next inquiry is
whether an examination of official records reveals any defect in
these procedures which would invalidate the nomination.
          You have informed us that the State Committee of the
Prohibition Party did not certify to your offise a decision as to
whether the party would nominate state, district and county
officers by convention or primary elections, as provided in Article
13.46 of the Election Code, nor did you receive any notice as to
the hour and place at which a convention for selecting delegates
to a national convention was to be held, as provided in Article
13.58. You have asked whether the failure to comply with these
statutory provisions would affect your duty to certify the party's
nominees for President and Vice-President.
          Article 13.46 reads as follows:
           "The State Committee of political part.ieswhich
      are not required by law to make nominations by a
      primary election shall meet at some place in the
      State to be designated by the chairman thereof on
      the second Monday in February and shall decide, and
      by resolution declare, w'hetherthey will nominate
Honorable Zollie Steakley, page 5 (WW-943)


     State, district and county officers by convention or
     primary elections, and shall certify their decision
     to the Secretary of State."
          Presidential electors are not "state officers" within
the meaning of this statute.     Stanford v. Butler, supra. Even
though the State Committee had decided to hold primaries for
nominating state, district and county officers and had certified
this decision to the Secretary of State, the party would still
have been free to select its presidential elector candidates by
convention. Since ncmination of presidential elector candidates
is not controlled by this statute, it follows that the failure to
give notice to your office would not affect the validity of these
nominations. It therefore becomes unnecessary to consider whether
the record of certificates received in your office under this
statute is within the class of official records which you could
examine in the present instance,    or whether failure to file the
notice under Article 13.46 wculd vitiate nominations for offic.es
which do come within its provisions.
          Article 13.58 provides that the State Executive Com-
mittee shall notify the Secretary of State as to the kour and
place at which the state convention fs elect delegates to a
national convention will be held. As already pointed out, the
presidential elector candidates for the Prohibition Party were
not nominated at a convention held under the provisions of this
statute. There is no ststute requiring that the Sesretary of
State be notified of other state -onventions heli by t'nisparty,
and the failure to file a notice would be immateriai~to the
validity of ac~tiontaken by the convention held on August 18.
          Whether the PrShibit.ion Party is .adv.lyrorganized
political party entitled to have its nominees for President and
Vice-President,placfsdon the ballot, ,lwhether I.tscomina.tingcon-
ventions were legally oonstit.uted,an'?w+ther the party has
failed to comply with any statutory requirements going to the
validity of the nominations,  are matt,erswh2ch ycu are not
authorized to determine. These are q-esfions of mixed law and
fact, and their determination would :?ependon an asc.ertainment
of facts dehors the certiX"2:at.e s,ndcff'Lc'?al.
                                               re:ords   Since t'he
certificate complies with statutory reqairements and"n0 illegality
in the making of the nominations is n'k.?wn by the .certificateor
other official records3 we are of th? cpin!,onthat it is your
duty to certify the pa=ty's candidates i:orp?eai$ent and.Vi:-e-
President to the county clerks.
Honorable Zollie Steakley, page 6 (WW-943)


                             SUMMARY
          Where a certificate of the nomination of candi-
     dates by a political party for President and Vice-
     President and for presidential electors has been
     filed with the Secretary of State in compliance with
     statutory requirements and no illegality in the making
     of the nominations is shown by the certificate or other
     official records, it Is the duty of the Secretary of
     State to certify the candidates for President and Vice-
     President to the county clerks for placement on the
     general election ballot.
         A political party which did not cast as many as
    10,000 votes for Qovernor In the preceding general
    election may nominate presidential elector candidates
    at a state convention held on some date other than a
    date fixed by statute for the conventions of parties
    within existing statutory regulations. The party is
    not required to notify the Secretary of State of the
    time and place at which the convention will be held.
         Presidential electors are not state officers within
    the scope of Article 13.46 of the Election Code, and
    failure to notify the Secretary of State whether nomi-
    nations for state, district and county offices was to
    be made by conventions or by primary elections would
    not affect the validity of the party's nominations for
    presidential electors.
                                  Yours very truly,
                                  WILL WIISON
                                  Attorney General of Texas




MKW:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Houghton Brownlee, Jr.            REVIEWED FOR THE ATTORNEY GENERAL
Gordon C. Cass                    BY: Leonard Passmore
J. C. Davis, Jr.
Tom I. McFarli.ng
