                         June 23. 1952


Hon. J. R. Alamia                   Opinion No. V-1472
Criminal District. Attorney
Hidalgo ;county                     Re:   Procedure for nomina-
Edinburg,. Texas                          tion of sheriff where
                                          unopposed candidate
                                          dies before primaryand
                                          before assessment is
Dear Sir:~                                paid.

         Your request for an opinion is based on the following
facts:

          .W. R. Doan. Sheriffof Hidalgo County, unopposed as
candidate for re-election. died on June 17, 1952. He had regu-
larly filed as a candidate in the Democratic primary to be
held on July 26 of this year. The Hidalgo County Democratic
Executive Committee set the filing fees for the ‘candidates in
that election on June 16. 1952, as it was required to do under      -
Section 186 of the Election Code. On the evening of June 16.
Mr. Doan authorized and directed his chief deputy to pay his
filing fee. Mr. Doan died at. 7:20 A.M. on June 17.. No filing
fee has yet been paid by Mr. Doan or anyone else for the of-
fice of Sheriff of Hidalgo County.

          Section 186 of the Election Code provides that assess-
ments made, by the county executive committee for this~year’s’
primary must be paid on or before June 21.1952.     Section 193
provides that no person’s name shall be placed on the ballot
who has not paid the amount assessed against him. The offi-
cial ballot for the primary will be made up on June 23. 1952.
according to Section 192.

         Based on these facts,   you ask the following questions:

         li   Can anyone legally pay the filing fee of W. R.
Doan?

          2. Should the name of W. Fl. Doan be placed upon the
ballot as a candidate for sheriff at the Democratic primary if
someone pays his filing fee?

        3. If the filing fee should not be paid, can the name of
W. R. Doan be placed on the ballot?
    sggj   Hon. J. R. Alamia.   page 2    (V-1472)



                     4. If his name is placed on the ballot and if the should
           receive a majority of the votes, what procedure should be fol-
           lowed in designating the Democratic nominee in the general
           election?

                     Sections 186 and 193 of the Election Code do not spe-
           cifically state that the assessment against a candidate for his .
           share of the primary expenses must be paid by him person-
           ally. Section 186 provides that the county executive committee
:
                “shall, by resolution, direct the chairman to imme-
                diatelymailtoeach    person whose name has been re-
                quested to be .placed on the official ballot a statement
                of the amount of such expenses so apportioned to him,
                with the request that he pay the same to the county
                chairman on or before the Saturday before the fourth
                Monday in June thereafter.    It shall be sufficient to
               ‘meet the requirements of this law to mail by regis-
/               tered letter to the chairman before the deadline here-
/               in provided. as shown by the postmark on the letter,
                a money order, a certified check, or a good personal
                check.”

                    ‘Section 193 reads:

                    .‘No person’s name shall be placed on the ballot
               of a district. county or precinct office who has not
               paid to the county executive committee. the amount
               of the estimated expense of holding such primary
               apportioned to him by the county executive commit-
               tee as hereinbefore provided. . ‘. .*

                     -,We do not think the language of either of these sections
           requires personal payment by the candidate himself.       It may be
           noted that Section 190 of $.he Election Code permits others to
           file the request, on behalf of a candidate, for a place on the bal-
           lot. So it would not be’contrary to the general scheme of these
           filing provisions to allow payment of the candidate% filing fee
           by someone else. However, in this connection the provisions
           ,of the Election Code relating to campaign expenditures must
           also be considered. Section 239 reads, in part:

                     “No candidate,‘campaign manager, nor assist-
                ant champaignmanager shall by himself or by any
                other person, directly or indirectly, make or author-
                ize any other person, tie make any campaign expendi-
                ture except for the following purposes only. to wit:
Hon. J. R. Alamia,    page 3   ~-(V-1472)



             ~‘b.’ The payment of fees or charges for pbc-
       ing the name .of the candidate upon the :primary bal-
       lot, and for holding and making returns of the elec-
       tion.’
  -:
           It is seen from this provision that the assessment
for having the candidate’s name placed on the primary bal-
lot is classified as a campaign expenditure. Clearly, the
payment of the assessment could Abemade either by the can-
didate himself or by a campaign manager who had been ap-
pointed in accordance with Section 238 of the Election Code.
It is our .opinion that the assessment could also be paid by
an agent upon authorization by the candidate or the cam-
paign manager.

         Under the present facts, the candidate before his
death had authorised.an agent to make the payment for him.
The question presents itself., was this authorization revoked
by the death.of the candidate before the payment was made?
The general rule is that the authority of an’agent ceases up-
on the death of the principal; and this would’seem to be the
rule even though the agency is for the performance of a
specific act. .Cleveland v. Williams, 29 Tex. 204 (1867);
Crow v. Day, 96 S.W.Zd 100 (Tex. Civ. App. 1936). Under the
rule announced in these cases, we must hold that the agent
designated by .Mr. Doan before his death now has no author-
ity-as such to act for. Mr. Doan in making this payment.

          As to whether anyone other than the candidate him-
self, his campaign manager, or an agent of one of these per-
sons may pay the assessment, the answer must be found in
the provisions of Section 240 of the Election Code. Subsec-
tion (b) of this section provides:

            “It shall be lawful for any person to expend
       a Amy which shall not in the aggregate exceed
       Twenty-five Dollars ($25) for postage. or tele-
       graph or telephone tolls, or for costs of any
       correspondence, or any other lawful purpose
       out of his own furiii-
       date, where the sum is not to be repaid to him.”
       (Emphasis added;)        .    .’

         Our understanding of this provision is that a number
of persons may join together to pay for a single item of ex-
pense so long as no one person exceeds a total of $25 for
that and all other purposes during the campaign. Since the
payment of the assessment would constitute a lawful purpose.
we think it would be lawful for the assessment to be paid in
this manner.
r_s ;,r:   Hon. J. R. Alamia.   page 4    (V-1472)
rs: ‘*1


                    In your second question you ask whether Mr. Doan’s
           name should be placed on the ballot in the primary election
           if someone pays his filing fee.

                    In adopting the Election Code, the Legislature added
           a new paragraph to the former statute, the new paragraph
           reading as follows:

                      *If a candidate in the first primary dies after
                the deadline for filing, his name shall be printed
                on the 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
                County Clerks concerned to be printed on the
                general election ballot. If such a deceased can-
                didateis one of the two (2) highest candidates
                in that race in the first primary and if no one
                has a majority vote. the two (2) living candidates
                withthe highest votes shall be certified to have
                their names printed on the second primary bal-
            .   lot.’

                      We thinkyour fact situation comes squarely within
           this provision. While a candidate’s name cannot appear on
           the ballot unless he pays the amount of thenexpenses assessed
           to him, the ~status of a candidate for a county office’bas be-
           come fixed before the time for payment of the assessment.
           In other words, payment of the assessment is not a condition.
           precedent to his being a candidate within the meaning of Sec-
           tion 104..

                      Our interpretation of this provision of Section 104 is
           that the death of the candidate shall not cause his name to be
           removed from the ball,ot. It does not mean that the deceased
           candidate’s name must be placed on the ballot even though he
           would have been ineligible to have his name on the ballot if he
           had lived. We do not believe Section 104 was intended to ob-
           viate the necessity for payment of the asses~sment for expenses
           of holding the. election. If the candidate had lived, his name
           could not,have been placed on the ballot unless the assessment
           was paid. We are of the -opinion that the fee must still be paid.
           after his death, if his name is to appear on the ballot. Conse-
           quently, we answer your second .question ‘Yes”; and your third
           question--whether Mr. Doan’s name may be placed on the bal-
           lot if the fee is not paid-- we.answer “No.”
                                                                     I-,‘..
‘Hon. J. R. Alamia,   page 5   (V-1472)                              &;t 3



          In your fotirtb question you’ask’what procedure
should be followed: in designating the Democratic nominee
in the general election, in the event Mr. Doan’s name is
placed on the primary ballot and he receives a majority of
the votes. Section 104 states’that if such deceased candi-
date receives a majority of the votes, the ‘proper executive
cdmmittee shall choose a nominee and certify such name to
the County Clerks concerned to be. printed onethe general
e&action ballot.’                     :

           Section 233 of the Election Code, which deals with
.nomination by’an executive committee where the nominee
 dies after the primary.. provides in part:
           . .:.  the executive committee of a party,
     or a majority of them for the State, district or
     county, as the office to be nominated may re-
     quire. may nominate a candidate to supply the
     vac~ancy by filing withthe Secretary of State in
     the case of State or district officer, or with the
     county judge. in the case of county or precinct
     officer, a certificate duly signed and ~acknowl;
     edged by them, setting forth the cause of the
     vacancy, the name of the new nominee, the of-
     fice for which he:was nominated and when and
     .how he was nominated.”

It is our opinion that the selection of a nominee for a ,county
office under .Section 104 should be made by the county execu-
tive committee, as is prwided in Section 233.

           Section 233 provides that the certiiication is to be
made to the county judge in the case of a county office, where-
a6 Section 104 provides that the certification is to be made to
the county clerk. The reason for the difference in these cer-
tification requirements for county offices is apparent when we
consider them along with Section 203. That section prwides
that the county executive committee shall certify to the county
clerk the nominees selected at the primary.       Since under-
-104      the candidate’s death has already occurred, if the com-
mittee so desired it could select a new nominee at the same
meeting at which the election results are canvassed and certi-
fy his name along with the other nominees regularlyselected
at the primary.    In any event the name of the new nominee
should be certified to the county clerk not later than 30 days
before the general election (10 days before commencement of
absentee voting). See Sec. 210, Election Code; Austin vr City
of Alice, 193 S.W.2d 290 (Tex. Civ. App. 1947. error ref. n.r.e.).
    Hon. J. R. Abmia.       page 6   (V-1472)



    The committee should include in the certificate a recitation
    of the circumstances   under which the new nominee was se-
    lected, as set out in Section 233.


                                SUMMAFtY

              Under Sec. 104. Election Code. the name of
        a candidate for a county office in the first pri-
        mary who dies after the deadline for filing, but
        before the assessment of his share of the elec-
        tion expense is paid, should be printed on the pri-
        ~mary ballot if the assessment is subsequently
        paid within the time prescribed by Sec. 186. Elec-
        tion Code. In such a case, the assessment may be
        paid by other persons in accordance with subset.
         (b) of Sec. ~2.40. If the deceased candidate becomes
        the party nominee, the county executive committee
        may name a new ,nominee for the general election.

                                            Yours very truly,

i   APPROVED:                  ~b            PRICE DANIEL
                                            Attorney General
    J. C. Davis,‘Jr.
    County Affairs Division

    E. ,Jacobson      ,,.                                      %2@&
                                            BY a?
    Reviewing~ Assistant                      Mary K.    all
                                                  Assistant
    Charles D. Mathews
    First Assistant

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