    OFFICE   OF THE AlTORNEY GENERAL OF TEXAS
                           AUSTIN




Bonorable E. L. Dunoan
County Attonmy
Nolan County
Sweetwater, Toxae
Dear sir:


                                             ofirt nlto-in
                                                       u nai-
                                                    in De7llocretio
                                               0 hio name priatoa
                                               ent oanaidate ?or
                                              a ballot  r0r the

                                              or 4th wherrln you
                                               wa6 a write-in
                                              primarymy have
                                      r the g6noral aleetioa   aa
                                      opendent, or non-parthan
                                       Civil Statutee, lQ28, pre-
                                      naent 6anaiafh98 t0 hare
                                      oial ballot for general

                          omxal4atee for 0rfio0 at a
                         own sleotlon   may have their
                        on the official   ballot    on appli-      ‘~
                                                .county ~0r-
                                              y or town or-
                                                Ban6 foml an4
                                              rein preaorlbea
     for applicationa    to be made to the Yeoretery of
     State in oaae of State or diatrlot       lndepandent     nom-
     ination; providad,    that a petition    0r five   par oent
     or the entire vote cast In euoh county, oity or
     town at the last general eleotlon       shall be required
     ror such nom2riatiOn.”
Honorable 5. L. Duncan, Rage 2


            The above quoted statute in -providing *auoh applf-
cation being in the 881~8 form and subject to the same re-
quuirements heroin prescribed for applloationa    to bo mada to
the Seoretflry 0r State in case of State or distrlot     lndepena-
ent nomInatlcn* lncorporatss   by reference  the following
clause contained in Article 3159, which reads:
            ” .     and provided,   alao, that no parron
     who has &d      at a primary   eleotlon ahall sign
     an application   in favor of   anyone r0r an 0fri00
     for which a nominctlon was     made at such primary
     electIoh.*
           In order to meet the roquleltea  proaoribod by tho
roregolng statute,   It is noceasarp that ths Independent oandl-
date for sheriff   present to the oounty judge a petition   8Igned
by a aurflclent   number of qualified votera 0r tho oounty to
equal floe per cent of the entlro vote oast in aald county at
the last general eleation,   and that all of such slgnatorlos
have not voted in the last Demooratlo primary oleotlon.
            Aaauming that the oandldata hae met thoao raqulra-
Blents, wa come now to a conelderatlon     of the qua&Ion of whr-
ther he 1s entltled     to have his name prInted on the ballot   at
the general election as an lndspendent oandldate,       even though
he partlolpated   aa a candidate,    and presumably also a6 a voter,
in the Demooratio primary at which the Damooratlo nominee for
the orfioe   of shsrlfr   was selaotsd.
          Artiols 3110, Revised Civil Statutes,   19&S, provides
for the party pledge to be printed on ballots   on primary ela~o-
tion and reads as follows:

           “No 0rfi0iai ballot r0r primary eleatlon      ehall
     have on It any symbol or devioe or any printed mat-
     ter, except a unir0nfi primary test, roadfng as fol-
     lows:   ‘I am a          (inserting  name of polltlcal
     party or organlmof           which the voter ia a member)
     and pledge myself to support the nomlnae of this prim-
     ary;’ and any ballot which ahall not contain such
     ,prInted test above the namea of the candidates there-
     on, shall be void and shall not be oountod.”

          The Supreme Court of Texan has re~peatedly held that
the pledge *to support the nomlnso of this primary,* contained
on the primary ballot a 8 provided by Article   3110, supra, im-
poses merely a moral and not a legal obligation    on the Voter.
.



    Eonorabla   E. L. Dunoan, Face 3


    8.0 Kay v. Sohnolder, 110 Tex. 359, 2l6 8. W. 479, E21 S.
    w. 6601 westorman v. Mlms, 111 Tax. 29, 227 S. W. 1781 Lwa
    v. Wll~o~, 119 Tax. 256 28 9. w, (2d) 515; Lovo v. Buokaor,
    121 Tox. 369, 49 6. W. [24) 425.
                 In tho oasa of Westerman v. lcIm#, nuBa, tho su-
    pram0 OouHi of Toxaa had before it a question eimilar to the
    ona hors under oonsldaratlon.       In that ca6e the roqui8Ito
    aumbor of qua1Ifi.d     9Otorr of Oalraston Count who had not
    participated    in the Democratic primary, petit f aaed‘tbt      tho
    name of aubroy Fuller     be printed a8 an Indapandont oandldata
    for alstrlat    judge on the general election    ballot.    AubmJ
    Nlor     had partlolpated   and voted in the Demooratlo prima-
    of that year, at which the Demooratio candldeto Par dirtriot
    judge was nomlmtsd.       The cult waa an original    lpplioation
    to tho supreme Court for a writ o? numdamusto acmpel the
    Seoratary of State to issue his Inettructionr to tho County
    Clerk dlreotlng    that the name of Fuller be prlatod in tha In-
    depandont column of the OffIOIal ballot.        Tha Supz%tm~.Court
    denied the mandamus. The entire oourt oonourred. In the ro-
    rult, but Mr. Chief Justice Phillips       based hlr daolelon on
    the ground thet the statute preroriblng       tho party pl dgo to
    support ths nominees of thet party Impo8ass legal du1 jr upon
    him. Said Judge Phllllpe,      at pago 4E!l
               "In virtue of the statutes,  the duty to,perform
         tha agraamant booam a legal duty; the right cf Judge
         Street (the Damooratlo nomlhoa for district    judge)
         ar a benaflalarp   of the duty beoame a legal right;
         and it would oommandthe law'8 protaotlon     a8 any
         other lagal right.*
    Tho majority of the oourt, however, a8 expraseed In the opin-
    ion by bfr. Juetloa Greenwooa, reoognlerd the rule laid aown in
    Kay v. Sohnalder,   110 Tex. 359, Z18 6. W. 479, that tho pledge
    to mupport the party oandidata lmpoaee marely a moral and not
    a legal obligation   on %he voter.
                Xr.   Juetlor   Gremwood   dsolared   at page 38:
               *In our oplnlon  a voter oannot take part in
         a primary or oonvention 0r a party, to name party
         nomlneor, wlthout assuming an obligation  binding on
         the voter's  honor and coaaclenoe.  Suoh obligation
         inhere8 in the very nature of his eat, entirely     re-
Eonorabls    x.   t.   Duos,   Fags 4



     gardlsss of any sxprsss~plsdgs,        and sntlrsly   rs-
     gsrdless    OS ths requirsmants of any statute.        The
     obligation,     like the promlss sxaoted by the ststuts,
     whsn treated      as governing future conduot, Is for oo-
     operation in good faith to ssours ths suooess of the
     nOdMe.       Thers Is no reasonably oertaln measure of
     bona fide cooperation       in matters of this sort.      The
     votsr's   oonduot must bs detsrmlnsd largely by his
     own peouliar      senso of propriety   and of-right;     Xt la
     ror suoh rsssons that       the oourts do not undsrtsks to
     oompal psrrormsnoa o? the obligation.           Bslng unsn-
     toroeable    through the oourts,     the obligation   Is a
     moral obligation.       . . .
           “We do not say that oiroumstanoes     might not aria.
     under whloh ens wbo had p!irtloipatsd     in a primary
     would be rsllered    of ths moral obligation   which is
     ordinarily   lnourrsd not to undertake the nomInso*s
     defeat.    The present ease doss not call for ths ds-
     tsrminstion   of the atfeot ot extraordinary    olroum-
     stan0es.w
          Mr. Justlos Orssnwood’s opinion dmlsd the matidamu
on the grounds that the oandldate having vIolatO@ hlo party
pledge by soeking to bsoome sn lndspsndent candidate at the
general elsotlon  did not OCIPSinto   a oourt of squlty with
~olsan handew and thsrofors  his applloation  for mandamus was
denied.  We oontlnue to quota from the opinlonr
           gearing concludqd that the petition  of rela-
      tbrs Is grounded on Conduot amounting to 811 lnrita-
     tion to, and hsnae partlolpation  In an aot tlolatirs
     of good faith and OS oonsolonoe,  It rollows that re-
     lators did not ooms into oourt with aloan hands, a6
     required to entitle   thsm to.@s relief prayed for,
     and hence the mandsmus Is d@i'Isd."
            Under the opinion or the ms ority or the oourt in
Westerman v. Maims, the Demooratio no?J me has no lsgally   sn-
ioroeable   rlghts in the matter.  Wor does ths man who seeks
to have his name plaoed on the ballot   as an independent candl-
date.    In neither case will a mandamus or sn lnjumtion   aotion
lie either to place the aandidate*s name on the tlakst    or pre-
vent its being plaoed thsreon.
          Under ths authority of Weatanuan v. YIms, thsrsfors,
we ara oompellsd to advise you that whether ths'name of Inds-
                                                                                 484
*.
     ~~gonoreble   :.   L. Dunoan, J?eage5


      p8ndc:nt candid,?t& for sheriff    ehculti b? placed on the general
      election bnllot     under these ciraumetanccs,    Ii: a quectlon to
      be determined by the County Judge.        Xle d&oisiOn   In the mat-
;     ter, In the obsenoe of the exceptional       circuzetances    referred
I
      to by Er. Justice Greenwoo:: in the last above ?uotatIon,          will
      net be disturbed by the OourtL. He nay base hiu deoislon upon
      Eddetx-mlnatlon     of the question of whether cIrcu:ietenoes      exist
      (in the vior6s of M.r. Justice Grsenwoti ) Wn$er which one who
      had particlpetsd     in a primary would be relieved     of the morel
      obli@tIon    which le ordlnsrily    Incurred not to undertake the
      noml.nse*s  6efaat.”
                 ii&plying spe~lficnlly   to your questlon,   we are of
      the opj.nIon the.t it rests within the dl,so:&tIon of the oounty
      judge whether he will accept the application      for the name of
      an Independent oandidate for sherlf f to be printed on the bal-
      lot for the general eleotion,     where such candidate partiolpeted
      8s a voter or ckndldets in the preceding Drmooratlc primary
k,    eleotlon.    Fe wish to point out aRain that such applioatlon,      in
      order to meet the requirements of ArtIolss     3159-3162, mu&t be
      signed under oath by n sufficient     number of qualified   voters
      of the county who did. not partI,cipnte   In the primary election
1,    to equal five per oent of the votes cast In the oounty at the
      lest general elsotlon.
                                                     YOWS Very tNly




                                                By~&%?~h~              .
                                                                   Assietant

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