                OFFlCE     OF THE ATTORNEY GENERAL                  OF TEXAS
                                     AUSTIN
    GROVERSELLERS
    ATTORNEY
           GENERAL




         Honorable  Sldnry Latham
          FaorWirg oi ,Otate
          Austin, Texas
          Dear Plr:




                                                                 1944, requesting the




                                                          Oovcmcjr has nade an          ,


                                                           or the COn8tltutlon,




                              lne that it will be neceesery for a
                 J&8     io be Lleoted in the 69th Distrlot at thn
                 General Xleotlon on November 7th, we find no
                 provision   of the statutes eovorning the.mnoer
                 tt8t a osndldate iOr suoh ofiioe my hsre his
                 fame. appear on the baliot.

                       "In tke lir:htof the above iecto, &ill you
                  please advise this depsrtment upon the rollowing
                  itlqUi2iO8:

                            -1. 6y shot feam zay a candidate
                    for Judge oi the 69th Judlolrl District
                    have tis name placed upon the ballot at
                    the coming General Zleotlon?
Ye~~~U~~CATK)Y
          8.to .* COW,““ID                      ..“I--. .--_a..- _I -.._ .--~~~~~~
                        I* * D”...Y.Y..I . ..IYI”Y
Con. 7Idney Latham, page 2




                “2. Till it be neoessary for suoh
             e oandidate to be alaoted by a VwrIte-ln~
             vote onlgla

            In addltlon to the frots atatad in the rosegoing
latter, the reoords or pour orrloe rsrleot that Judge= Jemes
Y!
 . Yltherspooa wee elaoted Distriot Judge of the 69th Judl-
~I
dial Dlstrlot In 1942. After hi8 eleotion in 1942, the term
or orrlce ror whloh Judge Witherspoon waa cleated begsn on
Janue?p 1, 1943, end continued until January 1, 1947. (Art.
,:929e-1,Vernon’s Annotated Civil Statutea). Judge Yiitherspoon
resigned hi8 oriioe on July 22, 1944, and Honorable John H.
Aldrldre was appointed Auguat 1, 1944, by the Governor to
succeed Judge iYIthe?spoon.
            Ye&ion     12 of A?tIole k or the Stste Constltutlon
Grovides, in part:
           ”      Appointments to vaoanolaa in orrloea
     eleoted’bi ihe people shall Only oontlnue until the
     rlrst general eleotlon thereafter.*
            Seotlon 28, Artlole 5, oi the State Constltutlm,
provideat
           wVaoanoiea in the 0rrl0e8 0r Judges 0r the
     PupretneCourt, the Court Or CrimiiMl Appeals,the
     Court or Ciril Appeals, and Distrlot Oourt8 ah811
     be.filled by the Governor until the next suoceed-
     ing general eleotlun; and the oeoenolea in the
     offices of County Judge and Justlcee Or the Peeoe
     shall be filled by the Comxnisalone?atCourt until
     the next generel election for such otfIoes.W
            Zeotlon 27 or Article XVI or the State Constltutim
prOvlde8:
            “15 011   eleotlons to   fin   vaoancies   of   brfioe
     In this ‘Xete, it shall be to ill1 the unexpired
     term on1y. n
                                                                           2

Hon. ‘ldnep Lnthen, page 3




              ArtLola   19,   Vernon*s     Annotated   Clvll Statutea,
prOVld48,
              aAl1 reoanoles         1x1 Ztete or dlstrlot    oriloee,
     exoept     mcmbere or     the     Leglalature,   shell   ba rllled,
     unless otherwlar ptorid4d by law, by sppointment o?
     the Ootsrnor, whloh appointment, if meda during its
     sasalon, shall be wlth the advloe end ooneent of two-
     thirda or the Senate present.      If made during the
     r4ooaa oi the S4nat4, the said appointee, or some
     other person to ill1 suoh vaoanoy, shall be nominated
     to tte csnete during tbr riret     ten days or its aes-
     ~lon, If rejtoted, said ofrlc4 shall Immed2stely
     b8oCme vaoant, and tb4 Governor shall, without delay,
     m4k4 rurthcr   nomlnatlons until 4 0onrIrmatlon takea
     'plaos. But should ther4 be no oonrirmatlon during
     the sssrlon of th4 S4nat4, tha Governor shall not
     thereafter appoint any person to fill such vaoanoy,
     who hea bcsn rejeoted by the Senat4; but may appoint
      som4 other person to fill the vacancy until tt.4next
      seeslon  of the ?enstb, or until    the reguler  eleotlon
      to add 0rri04, 440uia it 803oer 000~~. Appointmente
      to vaoanclas In ottloes elsctloe by the people ahall
      only oontinue until the fir&     ~4~?neral el4otlon there-
      aft4r."
          The case or Nloks vs. Curl, st al, 136s. "i.368, in
oonatrulng Artlole -XVI,Ceotion 27, and ArtIol4 5, 5eotion 28
or the Constltutlon of T4xa8, holda In erraot that all eleo-
tlons $0 $111 raoanolea in an oifioe ahell be to till the ub-
expired term only, and that vaoanales in the office of Judge
or the Distrlot Court ahall be filled by tin Governor until
the next 6uoaeedlEg general sleotion and the Judge elected at
the general eleotlon in 1902 in ~1004 of the Judge regularly
eleoted in 1900, Who88 oilIoe beoame vaoant by death, was
818oted for the unexpired term of the deoeasad Judge onlp,and
not for the full constitutional t4rm of four yesra,
           It 1s our opinion that when Judge AlridE WRS ap-
 ?oi.ltedto suco8ed Judge “!itherapoon,his aopoIntm6nt oon-
 tinueo until the first day of Janwry, 191*5,end if a person
 is eleoted et the general election in November, his term will
 begin the first dsy of January, 1945, and continues until the
 rirst day or Januery, 191t7.
;:on. Ydney Latham, ?afls4




          Ye have oarerully oonsid4red  Artlole 2953A,
Verncnle Annotated Civil Statut.48, In ocmeotlon with
the qucstlon8 under oonalderfitlonand it la our opln-
ion that this statute has no applloetion to auoh qU48-
tionr. The queetlon nilturally8rlsra wh4thrr the
St8tUt48 or Cooatitution o? thlr Stat4 lmpom~ upon any
orriofal the duty to oall a speolrl 4leotlon la 048e8
like the one here lnvol.red. We hare rrfled to find any
omstltutlonal or statutory   PrO~i8108 lmpoalng saoh duty.
Csnerally eg48king, the holding 0r an lleotlon must be
baasd upon outhorlty aonferr4d by 18~. Aooordingly, if
offloers 4mpowsred to order suoh eleotlons make an ordrr
rcr en rleotlon not 8uthOrlZed by the Conatitutlon and
laws 0r this 3tet4 ior 8 purpose not reoogcizea by law
as within their porrer, such order and el4otion are 8
          (St4phsna 98. Dobb8, 243 S. Vi. 710; Texas Jur.
GfliX:   page 20).
          Judge 'kltherspoonrellignsd Iit41 oftloe ot Dietriot
Judge, a8 above stat4d, on July 22, 1964. His resignation
was on the date or the first primary for 1944, therefore,
no person oould heoe riled for the offioe of Dlstriot Judge
for the 8sia dlatrlot under the84 fa4t8. (Art. 3112, V. A. C.
:.I. Apparently, the offlolal ballot at the general election
oontslna, or will contain, no name 88 noldlnesfor    the oftlo
of district judge Ulll488 8 C8Jl.ibOaIIbe plaoed On nuoh ballot
befor  the gen4ral eleotlon. Gen4rally spreking, the OffiOi8i
b8llOt st th6 general eleotion should oontain the names of
those who hers reoelred the number Of totes n8048s8ry to
nominate, and whos4 nomination hsa been duly made and properly
certlrled. (All4n ts. Fisher,  9 S. W. 26,731; Oouoh VS. Hill,
10 3. 7. 26, 170).
          Art1014 3165, V. A. C. 5., provides for the making
                by aa exeoutire aommittee when e nomio8t4d
of a nor,ilcstioa
aandldate for ottice deolln4a the nomination or dlea, and
deolarsa further that:

          ". . . . So executive committee ahall ever
     have power of nomination, sxoept where a nominee
     hes dCed or declined    the no-in;?tion   es nrovided
     in th:s srticle.ff
                                                                25


;:on . .?idnsyLathan, pa80 5




          Referring to the foregoing statute, it IS stated
in Texas Jurlapradanoa, Vol. 16, page 90:
            ‘The anaotmant wa6 dael~nad ior tha protao-
     tlon of polItIoa1 parties and their mambmra against
     the uaa ot unauthorIzad authority by axaoutlra oom-
     mIttaaa.    It ie to be noted that this provirdon ap-
     plies only where tbra    has been a prarioua nomlna-
     tlon and a oaoanop therein was either by a daolina-
     tloh or the death of the nomInes. An inspection of
     the statutes make it manifest that tha Laglalatura
     her onittad to provide any method ror the meking or
     a party nomination for an orfloe to. be filled at a
     general alaotlon whara the vaoenoy ooours batuaan
     the dates rixad by law tOr the holding of the primary
     election   and the anauing general alaotion and for
     whioh there has baan no prarlou8 nomlnetion of a
     candidate to be voted upon In the general alaotion.
     The rallura of the Le&lslatura to sot in this raapaot
     does not mean that a party ie without pomr to make
     any nomination when auoh a oontingaaoy oooure.     For
     eltbougb the Laglalatura haa power to regulate nom-
     inations, it doee not have authority absolutely to
     prohibit any nbnclnatlonriran balng made. The right
     OS the party to nominate oandldatrs axlate and in
     the abaanoe oi any ststutory pro918lons prasarlblng
     procedure&$ the right may be exaroiaed in any manner
     agreeable to party uoaga.r
           After oarerully oonaidarlng tba oaaa oi Gilmore ts
Yapala, et al, 188 3. V. 1037, it la our opinion that the
executive oonunittaafor the dlatrlot would have no authority
to nomlnata under Artlola 3165, V. A. C. .7.
           An inapaotlsn or the statutes make8 It nanlrest that
the Laglalature has omitted to provide any method for Eaklng
or a party nomination ror an office to be filled at the general
election under the oiroumstanosa herein Involved. In answer to
your rlrst question, you are raapaotrully advltad that we know
of no way that a parson may get his name placed upon the ball&
ot the ooming general alaotlon ea a candidate for District Judge
of t:,e69th Judloial Dlstrlot.
t:cn.          Iatham, vago
        ‘.-itiney             6




            Although tha Cuprena Court, In the oasa oi
                    at al, supra,
Gllmore vs. ‘:‘aplaa,              Indlostaa that the
2anooratIo Carty of the Matrlot 18 not without authority
to make a naminatlon It euoh nomlnatlon Is made under oon-
dltlona unregulated by any atatuta  law and In aooordsnoa
!cltbthe aparty law* snd agraaably to aparty uaagaW. In
aonnaotlon with the forae;olngstataiaant,It is to be pointed
out that us know or no “party law” or *party usagea regardi-
the ~uaetlon8 under oonaldaratloa+
              Ye now consider your second question. It Is
c!oubtrulivhetharthe name of the ofiloa till appaar on tha
orrlolsl ballot at the ganarel alaotlon. If the pub110 eerier-
slly bnow, or should know, that an elaotlon la taking plaoa
rcr the partloular purpose although a small majority oi tha
voters vote at mob eleotlon,by writing    designate the otflca
rrr,d writs In a name tor suoh offloe, it may ba daolarad to br
t!le  pub110 will snd a valid aleotloa, but Ii it appears thati
It wss not generally known and understood that an elaotlon mae
being held ror the purpose or aleoting a oandidste for tha
orflaa or Dlstrlot Judge or the 69th Judlolal Cistrlot, and
v.here there ~88 no mention of auob OrriO on tha ballot,sorm
question   aa to the validity of the election night be ralaad.
(.CaaCunningham VB. Wean, at al, 96 3. W. 26, 798).
             If a Writs-in” vote is attamptod at the general
eleotlon, this opinion ie not to be eonstrued a8 expressing
any opinion as to tha validity of mid olaotlon UXilSt38  and
until said question Ia ~rasantad after the general aleotion,
althou& *writs-in*   rota8. are valid gsnersllp and 8 oandldeta
may be eleotad in this marinara It Is to -ba~3uthar understood
that,we express no opinion 8s to the right8 or the present
Inoumbant to “hold over* until hla 8uooaagor Is duly alaoted
or appointed end quallflad~
                                  Yours very truly




                                          Ardell Yllilams
                                                Ass1 &ant

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