                           AUIWXTN.   T-s            78711



                                September      10. 1974


The Honorable Mark White                       Opinion No,     H-   396
Office of the Secretary of State
Austin,  Texas                                 Re:     Certification  of political
                                                       parties pursuant to Art.
                                                       13.45,   Subd. 2. Texas
Dear Secretary    White:                               Election Code.

     Subdivision 2 of Article 13.45 of the Texas Election Code. provides
a means for (a) political parties whose nominee for governor in the last
general election received less than 2 per cent of the total vote cast, or
(b) a new party, or (c) a previously      existing  party that had no candidate
for governor in the last election,    to nominate candidates for state-wide
and local elections   by nomination at a convention.        However,    it requires
as a condition to having the names of such candidates printed on the
official ballot, that a list of the participants   in the precinct    conventions
be filed with your office within 20 days after the party’s        state convention.
The list, to be filed by the temporary       chairman of each precinct con-
vention, must aggregate at least one per cent of the total votes cast for
governor in the last preceding general election.         If there are insufficient
names on the precinct lists,     they are to be supplemented       by a petition
requesting that the party’s    name be printed on the ballot.

     The statute requires that: (1) the precinct list and the supplemental
petition show the name, address and registration     certificate number of
each signer;   (2) no person who voted that year in any primary or parti-
cipated in any convention of any other party shell be eligible to sign: and
(3) to each signer there must be administered    an oath as to the facts.

    At the time you certify to the county clerks of the State the list of
candidates to be on the general ballot,  as required by Art. 1.03 of ‘the
Election Code, you are required by Art.    13.45,  Subd, 2, to certify the
names of the parties subject to that subdivision which had complied with
its requirements.

                                          p.    1853
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The Honorable    Mark   White,   page 2   (H-396)




    you have asked:

        1) May the Secretary     of State adopt reasonable   means
        to ascertain  if those citizens signing petitions pur-
        suant to Article 13.45,    subd. 2, Vernon’s   Texas
        Election Code are legally registered     voters?

       2) May the Secrets.ry of State utilize methods of statis-
       tical sampling to ascertain if those citizens signing the
     ” petitions pursuant to Art. 13.45,   subd. 2 are legally
       registered   voters?

     It is now.well established    in our law that the’officer    charged with cerr
tifying the petition performs     a judicial and not a ministerial    function. City
of El Paso v. Tuck, 282 S. W. 2d 764 (Tex. Civ. App.,          El Paso 1955, writ
ref’d.,   n. r. e.) cert.den.,  352 U.S. 828 .

    Such officer may adopt any means he believes to be right and proper to
ascertain  the qualifications  of those signing the petition and his decision
will not be disturbed in the absence of fraud or arbitrariness.      Akers v.
Remington,    115 S. W. 2d 714 (Tax. Civ. App.,  Fort Worth 1938, writ dism. );
City of El~Paso v. Tuck, supra; Attorney General Opinions O-488 (1939);
O-7218 (1946); C-263 (1964); H-199 (1974).

     We therefore answer your first question in the affirmative.    As Secretary
of State, you not only may, but you must, adopt reasonable     means to ascertain
if those who sign petitions required by Subdivision 2 of Article 13.45 of the
Texas Election Code are legally registered   voters.

    What are reasonable      means may vary according      to the circumstances.
Whether statistical     sampling will satisfy the requirement    will depend upon
your satisfaction    that an actual examination   of each signature is impossible
and that the sample is sufficiently     large and is chosen in such a way that it
will reflect the status of all signers within a close degree of reliability.     No
particular   petition or sampling method is before us. and we have neither
the facts nor the expertise     to determine whether a specific sampling method
in a specific instance is proper.

                                          p. 1854
  The Honorable          Mark    White,   page 3 (H-396)




     We therefore answer your second question that, although the normal
 and preferred  method would be an actual        counting of the signatures,
 where circumstances     indicate its necessity,   you are not necessarily   pre-
 cluded from utilizing methods of statistical     sampling to ascertain if
 those signing the petitions filed pursuant to Subdivision 2 of Article 13.45
 of the Election Code ar~e, in fact,legally    registered  voters.

                                       ~SUMMARY

              The Secretary  of State, in determining whether
         persons signing petitions pursuant to Subdivision 2
         of Article 13.45 of the Election Code are legally
         registered  voters,  may adopt such reasonable     means
         as he feels will be right and proper.    In some’cir-
         cumstances             the use of statistical        sampling   may be
         permissible.

                                                         Very    truly yours,




                                                         Attorney    General    of Texas



 APPFoYED:
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                    YO   K> Firs      Assistant

---.



 DAVID M. KENDALL,                  Chairman
 Opinion Committee




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