                EATTORNEY                   ENERA
                          ~FTEXAS




Honorable Alwln E. Pape             Opinion No. c-264
County Attorney
Guadalupe County                    Re:   Construction of the pro-
Seguin, Texas                             vision in Article 13.50,
                                          Texas Election Code,
                                          relating to lneligibillty'
                                          of persons voting in a
                                          primary election to sign
                                          the application of an
Dear Sir:                                 independent candidate.
          You have requested an opinion on the meaning of the
following provision in Article 13.50 of the Texas Election Code,
pertaining to the application of an independent candidate for
a place on the general election ballot:
         ' * * * No person shall sign such application
    unless he is a qualified voter, and no person who
    has voted at either the general primaryelection
    or the runoff primary election of any party shall
    sign an application in favor of anyone for an office
    for which a nomination was made at either such
    primary election."
          The fact situation on which your questions are based
is stated as follows:
         Both the Democratic Party and the Republican
    Party held primary elections in Guadalupe County
    on May 2, 1964, at which certain nominations for
    county and precinct offices were made by the vote
    of the people participating in the elections.
    However, three local officers, namely, the tax
    assessor-collector, the sheriff, and the constable
    of one justice precinct are running for re-election
    as independent candidates. A candidate for tax
    assessor-collector was nominated in the Democratic
    primary without opposition on that party ballot,
    but no one was a candidate in that primary for the
    office of sheriff or the office of constable of
    this particular justice precinct. There was no
    candidate for either of these three offices in
    the Republican primary. The incumbent tax assessor-
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Hon. Alwin E. Pape, page 2 (c-264)


     collector, sheriff, and constable each timely
     filed his declaration of intention to run as
     an independent candidate, as required by Ar-
     tlcle 13.47a of the Election Code. It will
     now be necessary for them to get petitions
     signed by qualified voters, to be filed not
     later than 30 days after the second primary
     election, as required by Articles 13.50-13.52
     of the Election Code.
          You have stated that the above-quoted language in
Article 13.50 could be construed to mean that a participant
in the Republican primary, where no one was nominated for tax
assessor-collector, could not sign the application of the
independent candidate for assessor-collector because a candi-
date for this office was nominated in the Democratic primary.
Your questions are as follows:
          1. The Republican Party did not nominate a
     candidate for county tax assessor-collector of
     Guadalupe County, but a candidate was nominated
     for that office in the Democratic primary. May
     persons who voted in the Republican primary elec-
     tion legally sign the application of an independent
     candidate for the office of tax assessor-collector
     of Guadalupe County?
          2. Candidates for sheriff and for constable,
     now offering to run as independents, whose names
     did not appear on any primary ballot, have no
     opposition. May persons who participated in either
     the Democratic primary or the Republican primary
     legally sign the applications of these two candi-
     dates?
          Prior to 1963, Article 13.50 of the Election Code
made the following provision with respect to eligibility of a
voter to sign the application of an independent candidate:
          ' * * * No person who has voted at a primary
     election shall sign an application in favor of any
     one for an office for which a nomination was made
     at such primary election."
Article 13.51 required each signer to subscribe to an oath that
he had participated in no primary election which had nominated
a candidate for the office for which the independent candidate
was running. Under these provisions, the Supreme Court of Texas
held in Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954),
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Hon. Alwin E. Pape, page 3 (C-264 1


that a person who had not voted in the first primary but had
voted in the runoff primary election of a party which had
made a nomination for a certain office in the first primary
was not ineligible to sign the application of an independent
candidate for that office.
          In its report to the 58th Legislature, the Election
Law Study Committee created by S.C.R. No. 30 of the 57th
Legislature recommended that Article 13.50 be amended so as to
make the provision on eligibility of signers read as it now
appears in that statute, and the 58th Legislature in 1963
adopted the recommended amendment. The Committee's explanatory
note describing this change read as follows: "Provide that
a person is ineligible to sign an application if he has voted
In either the first primary or runoff primary of a party that
has made a nomination for that office at either primary."
This change obviously was aimed at.changing the rule of
Weatherly v. Fulgham. In keeping with this amendment, the
wording of the oath was changed to read that the signer had
not participated "in the general primary election or the runoff
primary election of any party which has nominated, at'either
such election," a candidate for the office sought by the
independent candidate.
          In the light of this 'background,we think it evident
that Article 13.50 was intended to mean that a person is ineligl-
ble to sign the application of an independent candidate if he
votes at either the first primary or the runoff primary of a
party which has made a nomination for the office at either
primary. Participation in the primary elections of a party
which did not make a nomination for the office does not render
a voter ineligible to sign the application of an independent
candidate. Accordingly, we answer both your questions in the
affirmative.

                      SUMMARY
          Under Article 13.50 of the Texas ElectionTode,
     a person is ineligible to sign the application of
     an independent candidate if he votes at either the
     first primary or the runoff primary of a political
     party which makes a nomination at either primary
     for the office sought by the independent candidate.
     Participation in the primary elections of a party




                          -1262-
Hon. Alwin E. Pape, page 4 (C-264)


    which did not make a nomination for the office
    does not render a voter ineligibly to sign the
    application of an independent candidate.
                            Yours very truly,
                            WAGGONER CARR
                            Attorney General



                                Assistant
MKW:sj
APPROVED:
OPINION COMMITTEE
iii.
   V. Geppert, Chairman
Edward Balding
Grady Chandler
Robert Smith
Robert Richards
APPROVED,FQR THE ATTORNEY GENERAL
BY: Stanton Stone




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