Honorable Jules Damianl, Jr.         Opinion No. Ed-1384
Criminal District Attorney
Galveston County Courthouse          Re:   Whether a political party
Galveston, Texas                           has authority to nominate
                                           a candidate for the'office
                                           of County Tax Assessor-
                                           Collector to go on the
                                           General Election ballot,
                                           rrherethe Incumbent Tax
                                           Assessor-Collector died
                                           with more than two years
                                           left in his term of office,
                                           such death occurring too
                                           late to select a nominee
Dear Mr. Damiani:                          at the Primary election.
     In your letter   you   state1

                                   __ elected to
             "John H. Oberndorfer-was
          the office of Assessor-Collector of Taxes
          of Galveston County, for a period of four
          years, at the General Election In Novem-
          ber, 1960. as provided by the provisions
          of Art. 1.6,paragraph 65 of the Consti-
          tution UT the State of Texas, and held
          that office,until his death on may 31st,
          1962, during the middle of his term of
          officef .
             "The vacancy in the office of Assessor-
          Collector of Taxes has been filled by ap-
          pointment by the Commissioners Court as
          provided for by Art. 2355, R.C.S. until
          the next general election.
             "The office of Assessor-Collector of
          Taxes was not on the ballot at the Demo-
          cratic Primary election of Saturday, May
          5th, 1962."
                                                                         .
     You have asked the following questions!
             "As there wasno nominee for the of-
          flee of Assessor-Collector of Taxes on
Honorable Jules Damianl, Jr., page 2        Opinion No. NW-1384


          the May Primary Election ballot, the quee-
          tlon arises, does any political party
          (either Democratic, Republican or other-
          wise) have the authority to meet and
          nominate a nominee, whose names would be
          printed upon the Official Ballot at the ,~
          General Election to be held on November
          6th, lg62?
             "Secondly - should the Attorney General
          hold and/or should a court of competent
          jurisdiction decide that a political party
          does not have the authority to nominate a
          candidate whose name would go upon the
          General Election ballot In November, and
          further should no petition of an Indepen-
          dent candidate be filed with the county
          judge, as provided by Art. 13.53, Election
          Code, would the Electoral Board have the
          authority to place the office of Assessor-
          Collector of Taxes on the General Election
          ballot in November, so that a voter would
          have the right to write-in the name of a
          candidate of his choice, for said office,
          as is provided for In Sec. 16, Art. 7.14,
          Election Code, under the provisions of
          the voting machine laws; Galveston County
          having adopted and are using voting ma-
          chines In all elections?"

     Art. 6.04, Texas Election Code, reads In part as follows:
             "If a nominee dies or declines his
          nomination, and the vacancy so created
          shall have been filled, and such facts
          shall have been duly certified in accord-
          ance with the provisions of this Code,
          the Secretary of State or Cocunty Judge,
          as the case may be, shall promptly not!fy
          the official board created by this law
          to furnish election supplies that such
          vacancy has occurred and the name of the
          new nominee shall then be printed upon
          the official ballot, If the ballots are
          not already printed. D e .:
             "If a state or district official
          who is serving a four (4) or a six (6)
Honorable Jules Damiani, Jr., page 3        Opinion No. W-1384


         year term should die or resign on the
         even numbered year In which he is not
         a candidate, after the filing date of
         the first primary election and before
         the printing of the ballot for the gene-
         ral election, the state committee for
         each political party in the case of
         state officers and the appropriate dis-
         trict committee for each political party
         in the case of district officers shall
         have the power to name a nominee for
         such position and to certify the name
         to the proper election board to have
         the name printed on the general elec.-
         tlon ballot. 0 . .”
     Art. 13.56, Texas Election Code, reads as follows:
            “A nominee may decline and annul
         his nomination by delivering to the
         officer with whom the certificate of
         his nomination is filed, ten (IO) days
         before the election, If It be for a
         city office, and twenty (20) days in
         other cases, a declaration in writing,
         signed by him before some officer
         authorized to take acknowledgments,
         Upon such declination (or In case of
         death of a nominee), the executive com-
         mittee of a party, or a majorit,yof
         them for the State, district or county,
         as the office to be nominated may re-
         quire, may nominate a candidate to
         supply the vacancy by filing with the
         Secretary of State In the case of State
         or district officer, or wlth.the county
         Judge, in the case of county or precinct
         officer, a certificate duly signed and
         acknowledged by them, setting forth the
         cause of the vacancy, the name of the
         new nominee, and office for which he
         was nominated and when and how he was
         nominated. No executive  committee
         shall ever have power of nomination,
         except where provided for by law.” pm-
         phasis addew
Honorable Jules Damlanl, Jr., Page 4         Opinion No. WW-1384


     Art. 6.04, Election Code, provides the procedure to be
followed If an-office holde&who   holds a state or district
office
____~- should
          ~~~ d’Feor resiiz
       ~..~              -n In the middle of his four or six
-term.      Art. 13.56 sets out the procedure to be followed
in the case of death of a party nominee, or declination of nomi-
nation by a party nominee. Mr. Oberndorfer did not hold a state
or district office: he held a county office. So, Art. 6.04,
Election Code, does not apply to your situation. Mr. Oberndor-
fer was not a nominee; 1962 is not the year for County Tax
Assessor-Collector’s terms of office to expire. No party nomi-
nees were selected In the Primary elections of 1962. Had Mr.
Oberndorfer’s death occurred earlier irthe year, it would have
been possible for the County Executive Committee of each party
to announce that they would accept applications from candidates
for the unexpired term of Mr. Oberndorfer, announce the amount
of the filing fee and set a deadline for filing. This was done
this year In Travis County, upon the death of its Tax Assessor-
Collector. See Attorney General’s Opinion No. ww-827 (not a -
plicable to State and district offices. Meyers v. Smith, 31F;
S.W.2d 631). But Mr. Oberndorfer’s death occurred after the
First Primary election of May 5, 1962. The person appointed
by the Commissioners Court serves only until the General Election
of November, 1962. His successor will be selected at that elec-
tion, and will serve out the remainder of Mr. Oberndorfer’s term.
     This situation is clearly not covered:by the Election Code.
In Brewster v. Massey, 232 S.W.2d 678 (Clv.App. 1950; Mand. over-
ruled) the courts were faced with a Similar Situation.   To show
the sikilarity of situations, we quote from the Court’s state-
ment of the facts, at page 679:
             “Prior to January 1, 1948, /r949 q
          Judge Walter Morris was elected to serve
          a term of four years beginning on Janu-
          ar:-2, 1948, flg&g g   as Judge pf the
          67th District Court, a district com-
          nosed of the area which comprises Tar-
          rant County. Judge Morris qualified
          and served as judge of such court un-
          til h4s death on August 4, 1950. Since
          the year 1950 fell in .the middle of his
          term, and since his death occurred af-
          ter the Democratic primary election was
          held that year, no one was nominated in
          the 1950 primary election for such office.
             “At the regular state convention of
          the Democratic Party held fn Mineral
“   .




        Honorable Jules Damlani,   Jr.,   page   5   Opinion No. WW-1384


                 Wells on September 12, 1950, Harris Brew-
                 ster, the relator in this proceeding, was
                 nominated by the convention for the of-
                 fice In question as the party nominee to
                 appear on the Ncvember ballot. Tne nomi-
                 nation by the convention was made on re-
                 commendation of and pursuant to a reso-
                 lution adopted by v.lestate executive
                 committee of the party, and the nomina-
                 tion was duly certified by the proper
                 officers of the party to the county clerk
                 of Tarrant County."
             At page 682, the Court stated:
                    III . . the statutes  do not require,
                 nor contemplate, that nominations be
                 made in the primary election for offices
                 which are not expected to become vacant
                 at the end of that year.    'Therewas no
                 way a valid nomination could have been
                 made in the primary election for judge
                 of the 67th District Court in 1950,
                 while the Incumbent was still alive
                 and serving, and had been elected for
                 a term which was not t'oexpire until
                 the end of 1952. D y an
             And at page 68$, the Cou.rt,
                                        held:
                     "I?lestate convention, under all
                  the decisions, Is th? most authori-
                  tative body of the party9 at least
                  with respect:to a.ff'airsof the party
                  within the state, and under the prin-
                  ciples which we have referred to un-
                  doubtedly has aluthorityto attend to
                  the business of the party in such way
                  as it sees fit, subject to such regu-
                  lations and limitations as have been
                  Imposed by the statutes. There was
                  presented to the state convention a
                  situation where an important public
                  office was to be filled in the gene-
                  ral election. S , S Under all the pro-
                  nouncements of our courts, we feel com-
                  pelled to hold that the nomination was
Honorable Jules Damiani, Jr., page 6           Opinion No. W-1384


          valid. . . . The right of the party
          and of all its members to .have a noml-
          nee on the November ballot cannot be
          ignored,."
      In 1951 the Texas Election Code was enacted, and included
therein was Art. 6.04, su ra     When a vacancy occurred in the
                         riminal District Court No. 3 of Harris
office of judge of the zP--*
County, on June 1, 19.58,in the middle of the judge's four year
term, the Democratic District Committee selected one Love as
the Democratic nominee for that office. Thereafter, the Demo-
cratic State Convention, acting on a resolution by the state
executive  committee, nominated one Krichamer, as had been done
in the Brewster v. Massey case,
S.W.2d -269 (Civ.App., 1958) the ?%%'he$     $zt" ktMi?g:'   z:zc-
tlon Code, was the law governing   the situation, and'ruied'that
Mr. Love who had been select,edby the District Committee was
the Democratic nominee, and not Mr. Krichamer, who had been
selected at the state convention.
     'Ihecase of Williams v. Huntress, 153 Tex. 443, 272 S.W.2d
87 (19.54)presented another situation not covered by statute.
A new court had been created, the Special 37th District Court
of Bexar County. By the terms of the statute creating the court,
such court did nrt come into existence  until September 1, 1954.
Mr. Spears was selected by the Democratic County Convention to
be the nominee, and Mr. Williams was selected by the Democratic
State Convention to be the Democratic nominee for such office.
The Court stated at page 88:
              ,I
               . . . We have found no statute
          specifically placing the power of
          appointment for a district office
          where the need for appointment arises
          from the fact that a new office has
          been created In such a fashion that
          the nominee is not selected at the
          regular  primary.
             "The law is 'settled that where
          the legislature has not specifically
          regulated party affairs, the party
          itself has the right to prescribe
          rules and regulations governing it-
          self. . . .
             II
              . . .                           \:
.   .




        Honorable Jules Damlani, Jr., page 7          Opinion No. WW-1384


                    “We hold that In this situation
                 the State Convention had the power
                 to select a candidate for district
                 office and that it legally exercised
                 that ,power. It seems to be uncontro-
                 verted that relator does have a regu-
                 lar certificate of nomination from
                 the State Democratic Convention.”
        The Court ruled in favor of Mr. Williams, who had been selected
        as the Democratic nominee by the Democratic State Convention,
             While we find no case in which the State Convention of a
        party has selected a nominee for an office, which is purely of
        a county or precinct nature, nevertheless, we are of the opinion
        that the following conciuslons may be drawn from the above cases:

                     1. A political party is entitled
                  to have a nominee for every office
                  which is to ‘bevoted on by the people
                  at a General ELection.

                     2.  If the Election Code provides
                  a method of selecting such party nomi-
                  nee, the method provided in the Elec-
                  tion Code is exclusive, and must be
                  followed; otherwise, there will be no
                  party nominee for such office.

                     3. If the sit.uationis one in
                  which there Is no applicable law,
                  then ‘IO. e the party itself has
                  the right to prescribe rules and
                  regulations governing Itself.”
                     4. The state convention of a
                  political party /)a O s is the most
                  authoritative body of the party
                  . . e ,wlthrespect to the affairs    J
                  of the party within the state O D .
                  and has authority to attend to the
                  business of the party in such way as
                  It sees fit, subject to such regu-
                  lations and limitations as have been
                  imposed by t.hestatutes.”
             In answer to your ‘firstq,uestion,we hold that the various
        bona fide political parties have the authority to nominate a
              ii




 Honorable Jules Damiani, Jr., page 8            Opinion No. W'W-1384


 nominee for the office of Assessor and Collector of Taxes of
 Galveston County, for the unexpired term of.the late _^
                                                       John H.
 Oberndorfer, the names of sucn nominees to ce printed in their
 respective party columns on the General Election ballot in the
 General Election of November, 1962. Such nominations may be
,made at the state conventions of such parties,
       While it is not necessary to answer your second question
 in detail, we point out that a method must be provided for voters
 to express their choice by write-in vote, since the voters are
 not required to cast their votes for either a party nominee or
 independent candidates, whose names are printed on the ballot.
 If the voters prefer someone whose name is not printed on the
 ballot at all, the will of the voters must prevail. Note the
 statutory  provisions authorizing write-in votes for paper bal-
 lots In Art. 6.06, Election Code, and for voting machines in
 Sec. 16, Art. 7.14, Election Code.
                          SUMMARY
             Where a County Tax Assessor-Collector died in
      office In the middle of his term, during an elec-
      tion year when he was not required to run, after
      the party primary eiectlon has been held, but
      prior to the General Election to be held that year,
      there being no applicable statutes   in the Election
      Code governing such a situation in the case of a
      county   office, the various bona fide political
      oarties have the authority to nominate nominees
      for such office, the names of such nominees to
      be printed in their respective party columns on
      the General Election ballot as candidates for
      the remainder of the unexpired term of such of-
      fice. Such nominations may be made at the state
      conventions of such parties.
           A method must be provided for voters to
      express their choice by write-in vote, since the
      voters are not required to cast their votes for
      either a party nominee or independent candidates,
      whose names are printed on the ballot. If the
      voters prefer someone whose name Is not printed
      on the ballot at all, the will of the voters must
      prevail.
                                        Yours   very   truly,

                                        WILL WILSON
                                        Attorney General of Texas
Honorable Jules Damiani, Jr., page 9           Opinion No. WW-1384




                                       -Y

                                            Riley &gene   Fletcher
                                            Assistant
REF:rk
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
L. P. Lollar
Sam Stone
Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
