                   E   .A     ORNEY         GENERAL

                             OF   TEXAS



                            April 25, 1960

Honorable George W. Morris            Opinion No. w-827
County Attorney
Montgomery County                     Re:    Whether the Montgomery
Conroe, Texas                                County Clerk can accept
                                             a certificate of a nomi-
                                             nation made in the pri-
                                             mary election and place
                                             the nominee's name on
                                             the general election
                                             ballot, under facts
                                             stated.
Dear Mr. Morris:
       Your opinion request is summarized as follows:
            The Justice of the Peace for Justice
       Precinct No. 2 of Montgomery County, whose
       term of office would have expired on December
       31, 1962,died on April 2, 1960, The Commissioners
       Court of Montgomery County will appoint a
       successor to fill the vacancy until the gen-
       eral election in November of 1960, at which
       election a successor will be elected to fill
       the remainder of the unexpired term. Sect,28
       of Art. V, Tex.Const.; Art, 2355, R.C.S, The
       statutory deadline for candidates to file for
       a place on the ballot in the Democratic Primary
       to be held on May 7 had already passed at the
       time the vacancy occurred, Art, 13.12, Vernon's
       Texas Election Code. The County Democratic
       Executive Committee of Montgomery County
       adopted a resolution authorizing selection of
       a party nominee for the unexpired term in the
       Democratic primary elections and fixed April 15
       as the deadline for candidates to file for a
       place on the primary ballot. The period for
       absentee voting in the primary commenced on
       April 17, and the ballots were amended to include
       this office and the names of the candidates who
       had filed by the deadline before absentee ballots
       were delivered to the County Clerk.
             QUESTION:      Can the County Clerk of Montgomery
Honorable George W, Morris, page 2 (W-827)


        County accept the certification of a nominee
        selected In this manner and place the name
        of the nominee on the general election ballot?
        The Election Code does not prescribe a method whereby a
political party which is required to hold primaries may make a
nomination for an unexpired term in a county or precinct office
where the vacancy occurs after the deadline for filing under
Article 13.12 of the Code, A nomination for an unexpired term
must be made in the primaries in accordance with the statutory
provisions if the vacancy occurs in sufficient time for candi-
dates to file by the first Monday in February; but the filing
dates set out in Article 13.12 and other provisions regulating
candidacy In the primary do not apply where the vacancy occurs
after the first Monday in February or so near to that deadline
that prospective candidates do not have a reasonable oooortunitv
to file before that time, Kilday v. Germany 139 Tex.*38G, 163
S.W.2d 184 (1942); Meyers v. Smith, 314 S.W.id 631 (Tex.Civ.
APP. 1958)e
        Article 6,04 of the Election Code authorizes the state
executive committee in the case of state officers, and the
appropriate district committee in the case of district officers,
to name a nominee where a vacancy In a state or district office
arises after the filing date of the first primary, but neither
the county committee nor any other committee may name a nominee
for a county or precinct office under these circumstances.
Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916); Att'y
Gen. Op. S-215 (1956).
        In the absence of a statutory method for making a nomina-
tion, a political party may select a nominee In any manner not
contrary to law and agreeable with party usage. Gilmore v. Waples,
supra; Kilday v. Germany, supra; Att'y Gen.Op. WW-3b7 (1958). One
manner in which a nomihation for a county or precinct office may
be made if the vacancy occurs after the regular filing deadline
but in time to allow candidates to file before absentee voting
begins in the first primary, is to open the filing and permit
candidates to run in the primary.1 Kilday v. Germany, supra.


        lIn Gpinionw-367   we said that nominations for an unex-
pired term are subject to the same regulations as nominations for
a full term if the vacancy occurs in sufficient time for nomina-
tions to be made in the primary elections. This statement was made
in reference to vacancies which occur in time for the statutory
filing provisions to apply. It was not intended to mean that a
nomination could not be made in the primary or that statutory
deadlines would apply where the vacancy occurred after the statutory
filing time.
Honorable George W. Morris, page 3 (W-827)


In that case (decided before enactment of the provision in
Article 6.04 empowering the state committee itself to name a
nominee), the Supreme Court held that the state executive     com-
mittee could authorize the making of a nomination for a state
office in the primary election  in these circumstances and could
fix the time for candidates to file for a place on the primary
ballot. In Meyers v. Smith, suprag which involved a nomination
for a one-county district office, the court did not give effect
to an attempted extension of the filing deadline, but the hold-
ing of that case is not inconsistent with the Kilday case. In
the Meyers case a subcommittee of the state executive committee
had recommended that this action be taken, but the committee
itself had not authorized the action, The chairman of the county
committee, who comprised the district committee (Love v. Miller,
316 S.W.2d 26g9 Tex.Civ,App. 1958), had accepted applications of
candidates subject to approval of the county executive    committee,
which later refused to approve his action, but he had not under-
taken unconditionally to authorize this action. It was later
held in Love v. Mfller that ArtScle 6.04 of the Election Code
authorized the district committee to name a nominee for the
office, Questions which might arise from the Me ers and Love
cases as to whether a committee hav%ng the power
                                               -+-- 0 name -a
nominee could waive that power and adopt some other method, and
as to whether the state committee could override the action of
a lower committee, need not be considered here because the county
executive  committee does not have the power to make the nomina-
tion and the state committee has not attempted to prescribe the
method of nomination.
        We are of the opinion that by party usage the county
executive committee has the same authority with respect to a
county or precinct office that Kilday v. Germany accorded to
the state committee with respect to a state office, If the
action of the county comm%ttee does not conflict with action
of the state organization. To our knowledge, neither the State
Democratic Executive CommEttee nor the State Convention has
adopted any general policy, by resolution or otherwise, to
prescribe the method to be followed for making nominations for
county and precinct offices in these circumstances, OP to pro-
hibit the county executive committees from determining the
method.
        Directly answering your question, we are of the opinion
that the County Democratic Commfttee of Montgomery County could
authorize a nomination for this unexpired term to be made in the
primary elections in the manner you have outlined and that the
County Clerk of Montgomery County should place the name of the
nominee on the general election ballot upon receipt of a cer-
tification of the nomination from the county chairman. The
Honorable George W. Morris, page 4 (WW-827)


committee could fix the time for candidates to file, the time
for payment of the assessment for expenses of conducting the
primary, and other procedures incidental to placing the names
of the candidates on the primary ballot.

                            SUMMARY
            Where a vacancy in a county or precinct
       office occurs after the statutory time for
       candidates to file for a place on the primary
       election ballot but in time to allow candi-
       dates to file before absentee voting begins
       in the first primary, the county executive
       committee of the party holding the primary
       may authorize the making of a nomination in
       the primary elections and may fix the time
       for candidates to file and otherwise pre-
       scribe the procedures incidental to placing
       their names on the primary ballot. Upon
       receipt of a certification of the nomination
       in proper form, the county clerk should place
       the name of the nominee on the general
       election ballot.

                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas


                                    B

MKW:bh:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
William E. Allen
J. C. Davis, Jr.
Riley Eugene Fletcher
Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
