             EA            NEY         GENERAL




Honorable John Connally          Opinion No. c-217
Governor of Texaae
Austin, Texas                    Re:    Procedure for nomination
                                        of candidate for Associate
                                        Justice of the Court of
                                        Civil Appeals, Ninth Supreme
                                        Judicial District, under the
Dear Governor Connally:                 stated facts.
          Your request for an opinion on the above-captioned
matter reads a8 follows:
         "The untimely death on February 7, 1964,
    of the Honorable W. T. McNelll, Associate
    Justice of the Court of Civil Appeals far the
    Ninth Supreme Judicial District, haa created
    some confusion with respect to the May, 1964,
    primaries.
         "At the time of his death, Judge McNeil1
    was completing a six-year term which was to
    expire on December 31, 1964. Prior to the
    February 3, 1964, filing deadline, Judge
    McNeil1 made application pursuant to Article
    13.12 of the Texas Election Code with the
    State Democratic Executive Committee for that
    party's nomination for the new six-year term
    on the Court beginning January 1, 1965. No
    other candidates filed for this office prior
    to the filing deadline.
         "Article 8.22 of Vernon's Texas Election
    Code provides: 'If a candidate In the first
    primary dies after the deadline for filing,
    his name shall be printed on the first primary
    ballot and the votes cast for him shall be
    counted and returned for him. If such a
    deceased candidate receives a majority of the
    votes, the proper executive committee shall
    choose a nominee and certify such name to
    the proper officer as provided in Section
    233 of this Code   Stlcle 13.56, Vernon15
    Texas Election Cotfl, ~to.bepointed on the
    general election ballot.'
                           -1043-
Hon. John Connally, page 2 (C- 217)


          "Numbered Paragraph 2 of Article 13.12
     of the Election Code provides: 'The appllca-
     tion shall be filed with the state chalrman
     In the case of state-wide offices, with the
     county chairman of each county composing the
     district In the case of district offices in
     districts consisting of more than one county,
     and With the county chairman of the particular
     county in the case of county and precinct
     offices and district offices in districts
     consisting of only one county or part of one
     county; provided, honever, that applications
     of candidates for Justice of the Court of
     Civil Appeals shall be filed with the state
     chairman. The application shall be filed not
     later than the first Monday in February pre-
     ceding such primary; provided, however, that
     In the event there is no candidate for the
     nomination of any office due to the death
      f the one who has filed, applications may
     hoefil d not later than the first Monday
     in Marzh preceding the primary. * * *I
     LEmphasls suppliedd
          "In light of the death of Judge McNelll,
     the following questions are presented:
          "Is the Democratic party required to
     Include W. T. McNelll's name on its May
     primary ballot for this office under
     Article 8.22 of the Election Code; or
     does Article 13.12 of the Election Code
     require the State Democratic Chairman to
     accept additional application8 for hi8
     party's nomination for this office until
     the first Monday in March?
          "I would aplreclate your opinion on
     these questions.
          If the proviso In paragraph 2 of Article 13.12
of the Election Code only applies in those Instances where
the only candidate dies before the original deadline for
filing, then Judge McNelll's name should be printed on the
ballot in accordance with provision8 of Article 8.22 of
the Election Code. The result would be either that the
district executive committee would make the nomination or
that a write-in candidate would become the nominee. On
the other hand, if the death of the only filed candidate
between the first Monday in February and the first Monday

                            -1044-
Hon. John Connally, page 3 (C-217 )


In March produces an extension of the filing deadline,
Judge McNefllfs name would not be printed on the ballot and
the nomination would be made in accordance with normal primary
voting rules,
           The general policy expressed fn the Texas Election
Code is to require that parties which cast 200,000 or more
votes for Governor in the preceding general election must
make thefr nomfnations by primary election except In special
circumstances where thfs method of nomfnation is not feasible.
(Arts, 6,01 and 13.02.) In keeping wfth this policy, it is
also the general polfcy to l%m%t the nomfnating authority of
party execut%ve committees, and to grant the authority only
in unusual sftuatfons where nomfnation cannot be made by
primary electfon, Gflmore v, Waples, 108 Tex, 167, 188 S.W.~~
1037 (1916).   Nomfnatfon by an executfve commfttee is author-
ized only where the nominee dies or declfnes the nomination
(Art. 13.56), where a vacancy in office arfses too late for
nomination of a candfdate for the unexpired term by normal
primary procedures (Art, 6,04, prior to amendment In 1953;
Art. 13.12a, added in 1953), or where a deceased candfdate's
name is printed on the pr%mary ballot and the deceased candl-
date receives a major%ty of the votes (Art. 8.22),   The 58th
Legislature in 1963 re-emphasfzed the policy to require
nomination fn the prfmary when ft rewrote former provisions
of Artfcle 6.011 whfch authorized state and district executive
committees to name a nomfnee for an unexpired term where the
vacancy in office occurred after the regular filing deadline
for the primary, The law, now contained in Article 13.12a,
provfdes for nomfnation fn the pr%mary ff the vacancy occurs
at any tfme up to 30 days before the date of the pr%mary.
          We belfeve ft may be safd without contradiction
that nom%nat%on by wr%te-fn votes in races where there Is no
filed candfdateas name printed on the ballot fs generally
an unsatfsfactory method for selectfng a nomfnee. The legls-
lative attftude toward thfs method of nomfnation was expressed
in an amendment to Artfcle 13.09:of the Election Code in 1963,
which provfdes as follows: "If for any office, other than the
party office of county chafrman or precfnct chafrman, there
fs no candidate whose name fs to be prfnted on the general
primary ballot, the tftle of the offfce shall not be printed
on the ballot and no write-fn vote for such offfce shall be
counted,"
          We also belfeve that no one wfll dispute the un-
desirabilfty of placfng a deceased personSs name on the ballot
unless good and suff%c%ent reason exfsts for doing so. The
justfficatfon for it is to provfde voters with means for
preventing the nomfnatfon of some other candfdate who would be
Hon. John Connally, page 4 (C-217    )


unacceptable to them. Provisions for placing a deceased
candidate’s name on the ballot take cognizance of the fact
that the deceased candidate may have had strong popular
support and his candidacy may have deterred other capable,
acceptable persons from becoming candidates, and also take
cognizance of the difficulty of organizing and consolidating
support for a write-in candidate.
          A general principle of statutory construction is
that where a provision is susceptible of different meanings,
that construction should be favored which more nearly accords
with the spirit and policy of the law,
          With these general principles and pol%cles in mind,
we turn to a consideration of the meaning of the proviso of
Article 13.12 in the sentence reading:
          ’ * * *The appl%cat%on shall be filed
     not later than the first Monday in February
     preceding such primary; provided, however,
     that in the event there is no candidate for
     the nomination of any office due to the death
     of the one who had filed, applications may be
     filed not later than the first Monday in March
     preceding the primary. * * *‘I
We believe the most reasonable construction of this provision
is that the filing deadline Is extended if the only filed
candidate dies either before or after the regular deadline.
If the statute had provided for extension  of the deadline In
the event the filed candidate died within a specified time
before the regular deadline (e.g., less than five days before
the first Monday in February), our conclusion might be different.
But the statute does not make a time restriction. It is not
unusual for candidates to file as early as the first week in
January preceding the primary. Suppose a candidate had filed
on January 5, and had died on January 10, leaving a period of
three weeks OP more in which other candidates might have filed
but none did. Is there any more reason for extending the
deadline in .thbse--frcumstances than,where.the only.filed :
candidate dies within a week after the regular deadline?
To the contrary, there Is far more reason to open the filing
where the death occurs after the original deadline. The
present fact situation forcefully demonstrates the truth of
this assertion.  Undoubtedly Judge McNelll’s acceptability
to the voters of his district accounted for lack of opposition
for the Democratic nomination. If he had not been a candidate,
it fairly may be assumed that other candidates would have filed
for the office. If his death had occurred at a time when other
candidates would have had a reasonable opportunity to file

                            -1046-
Hon.   John Conaally, page 5 (c-2i7    )




before the February 3rd deadline, there would have been no
real necessity for extending the deadline. His death having
occurred after that deadllne, no other candidate may file
for the office unless his death puts the prbvlso Into operation.
If his death does not have that effect, his name will appear
on the primary ballot as the only candldate for the office
and the result will be to force nomination In one or the
other of two manners--nomination by an executive committee
or nomination from write-in candidates only--neither of
which comports with the general policy of the law,
          There has been no court decision settling the question
of whether the death of the only filed candidate after the
original deadline will cause an extension of the filing period.
In Meyers v. Smith, 314 S.W.2d 631 (Tex.Clv.App. 1958), a
district judge whose term expired on December 31, 1960, died
on Sunday, June 1, 1958. At that time, the normal deadline
under Article 13.12 was the first Monday In May, and the ex-
tended deadline was the first Monday In June, which in 1958
fell on June 2. On Monday, June 2, two candidates filed for
the unexpired term; In a mandamua action  brought by these
candidates to compel the county executive committee to place
their names on the primary ballot,,the Court of Civil Appeals
held that Article 13.12 does not apply to a nomlnatlon for an
unexpired term where the vacancy in office occurs after the
regular filing deadline, without Intimating whether the proviso
would or would not have become operative if the nomination had
been governed by Article 13.12.
          It is our opinion that Judge McNelll's death brought
the proviso of Artlcle';l3.12into operation, and candltiates
for the Democratic nomination may file for the office through
the date of March 2. It is also our opinion that Article 8.22
will not apply, and that Judge McNeill's name should not be
printed on the prlmarylballot. This article provides that a
deceased candidate's name shall be printed on the first primary
ballot If he dies "after the deadline for filing." If there Is
more than one filed candidate for the office, the death of one
candidate occurring either before or after the original deadline
does not cause an extension of the filing period, but if one
of the candidate8 dies after the deadline, his name is printed
on the ballot along with the names of the living candidates.
This ap arently was the situation in Wllley v. Fennell, 269
S.W.2d E07 (Tex.Civ.App. 195&), which Is the only reported
case decided under the provision In Article 8.22 relating
to death of a candidate in the first primary. But where by
reason of the proviso In Article 13.12 the filing deadline
is extended, we interpret the "deadline for filing" referred
to In Article 8.22 to be the extended deadline.


                              -1047-
                                                            -




Hon. John Connally, page 6 (C-217     )



                          SUMMARY
           Where filing for a place on the primary ballot
     is governed by Article 13.12 of the Election Code
     and the only person who has filed for a particular
     office dies after the regular filing deadline of the
     first Monday in February but before the first Monday
     In March, the filing deadllne for that office is
     extended to the first Monday in March. In such
     event, the deceased candidate's name is not placed
     on the ballot under the provisions of Article 8.22
     of the Election Code which pertain to death of a
     candidate In the first primary after the deadline
     for filing.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General

                               ,2@~50Qw-
                                   firy    Wall
                                   Assist&t
MKw:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
H. Grady Chandler
Joe Long
V. F. Taylos
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




                             -1048-
