,    .




Hon. John E. Fitzgibbon                    Opinion No. M- 1188
County Attorney
Webb County Courthouse                     Re:   Whether, pursuant to
Laredc, Texas                                    Sec. (h) of Article
                                                 14.08, Texas Election
                                                 Code, a party nominee
                                                 who failed to timely
                                                 file sworn expense
                                                 statements is precluded
                                                 from having his name
                                                 placed on the general
Dear Mr. Fitzgibbon:                             election ballot.

          Your recent letter requesting ,the opinion of this
office concerning the referenced matter states, in part, as
follows:

              "The events that resulted in this request
         are as follows: Alfonso 'Poncho' De La Garza was
         the Democratic winner of the Second Primary held
         on June 3. 1972, over his opponent, and conse-
         quently is now the Democratic nominee for the
         office of the County Commissioner of Precinct 1,
         Webb County, Texas.

               "The First Primary was held on May 6, 1972.
         In accordance with Article 14.08 of the Texas
         Election Code, he filed timely on the 20th day
         of April, 1972, an expense account with the
         County Clerk for Webb County.   After such elec-
         ti,on he was required by such article to file a
         supplemental sworn statement, not more than ten
         days after the election.   This he failed to do,
         but he did fi,le a supplemental expense statement



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                                                        ,




Hon. John E. Fitsgibbon, page 2,   (M-1188)



    with the Democratic County Chairman on the 11th
    of Hay. 1972. Article 14.08 also requires a
    candidate whose name is appearing on the ballot
    at the second primary to file a similar sworn
    statement with the County Clerk not less than
    seven days nor more than ten days prior to the
    election, and a similar supplemental sworn state-
    ment not more than ten days after the election.
    He failed to file such statement with the County
    Clerk prior to the election, and failed to file
    such statement after the election.   He did, how-
    ever, file a statement with the Democratic Chair-
    man prior to the second primary on the 24th day
    of Nay, 1972, and filed a statement after the
    election with the Democratic Chairman on the 7th
    day of June, 1972. On or about the 5th day of
    July, 1972, the Democratic Chairman sent these
     statements over to the office of the County
     Clerk of Webb County, and such statements were
     duly filed in such office, on the 5th day of
     July, 1972 . . .

           "In the County of Webb, there will appear
     on the ballot at the General Election a Repub-
     lican candidate for the office of the County Com-
     missioner of Precinct 1, of Webb County, Texas.
     Therefore, because of the omission of such filings
     with the office of the County Clerk, the question
     now being directed to the Attorney General is
     whether or not Alfonso 'Poncho' De La Garza is
     eligible to have his name placed on the ballot in
     the November general election . . .II

           The above facts recite that the candidate at issue
timely prepared all legally required sworn statements of
contributions received by him, pursuant to Sections (b) and
(c) of Article 14.08, Texas Election Code, but that he mis-
takenly filed these statements with the county Democratic
chairman, rather than properly filing them with the County
Clerk.   It was solely for this reason that the statements


                              -5798-
Hon. John E. Fitsgibbon, page 3,   (M-1188)



were not timely filed with the County Clerk. Your request must
be viewed, therefcre, in light of this salient fact.

          The penalty for failing to timely file the sworn
statements with the County Clerk is set forth in Article 14.08,
Texas Election Code, as follows:

           -'[h)Any candidate failing to file such sworn
     statement at the tim? provided or swearing falsely
     th?eebn~ sh,a1.1
                    be jub3ect to forfeiture, in accord-
     ani!:!
          wi,th the prccedJre stated in Section 245 of
     this code (Art;cle 14.09>, of his right to have
     his name placed upon the ballot at any subsequent
     runoff or general election which would be necessary
     for nomination or election to the term of office
     which the candidate is seeking."

          Article 14.09, Texas Election Code, provides, in
pertinent part, as follows:

          "Any candidate who shall knowingly permit or
     assent to the violation of any provision of this
     Chapter by any campaign manager or assistant cam-
     paign manager, or other person, shall thereby
     forfeit his right to have his name placed upon
     the primary ballot, or if nominated in the primary
     election, to have 'his name placed on the official
     ballot at the general election . . .

          "Proceedings by quo warrant0 . . . may be
     instituted at the suit of any citizen in the
     district court of any county . . . against any
     candidate who may be charged in such proceedings
     with any such violation . . .'

          The foregoing provisions of the Texas Election Code
have been construed many times by the courts of this State,
and three decisions are particularly apposite to the facts
set forth in your request.




                             -5799-
Hon. John E. Fitzgibbon, page 4.   (M-1188)



          In Thorp v. Murchison, 259 S.W.Zd 614 (Tex.Civ.App.
1953, no writ), Murchison received 24,956 votes for constable
of Travis County in the general election. His opponent, Thorp,
received 29 write-in vo,tes. Thcrp claimed Murchison had failed
to comply with Section (b) of Article 14.08. In Thorp, the
court stated that Section (h) of Article 14.08 was a penalty
statute, and therefore, had to be strictly construed (see,
also, Ramsey v., D'Jnloo, 146 Tex. 196, 205 S.W.Zd 979 (1947)),
and that a candidate who received a majority of the votes in
the general election did not entitle the candidate with the
second highest number of ,votes to be declared elected.

          In State v. Crawford, 269 S.W.Zd 536 (Tex.Civ.App. 1954,
no writ) a quo warrant0 proceeding, the winning candidate for
iustice kf the peace in El Paso County filed his sworn state-
ment one day past the time limit required by Section (b) of
Article 14.08. The Court of Civil Appeals adopted the opinion
of the trial court, and held as follows concerning Section (h)
of the Article:

          II’. . . We believe on such consideration of the
     statute, the word "shall" and "must" as used here is
     mandatory as to the filing of the statement, but is
     directory only as to the time when it shall be filed.

          "'In holding that the statute is mandatory in
     requiring a candidate to file this statement and is
     directory as to the time when such statement must be
     filed we do not mean that a candidate must not
     reasonably and substantially comply with the pro-
     visions of the act as to time of filing this statement.
     This he must do, and his failure to do so will be
     grounds for excluding his name from the ballot, and
     whether or not the candidate has reasonably and sub-
     stantially complied with the provisions of the act will
     be determined under the facts and circumstances of the
     case as presented.
           III . . .The purpose of requiring such statements
      to be filed is that the same may be open to public
      inspection that the voters may determine what persons
      are influencing by contributing money or credit, or
      other substantial aid to a candidate, that the public



                              -5800-
,       I




    Hon. John E. Fitzgibbon,    page 5   (M-1188)



            may intelligently determine whether or not they should
            support such candidate . . .I" 269 S.W.Zd at 542.
             (Emphasis added.)

              Thus, the Crawford court held that Section (h) of Article
    14.08, insofar as it relates to the time of filing, was directory,
    not mandatory, and that the test of whether a candidate forfeits
    his place on the ballot is whether he has substantially complied
    so that the public may be informed of the nature and source of
    his campaign contributions so as to cast an informed vote for or
    against him. The candidate at issue in your request, in our
    opinion, has met the criteria of the Crawford decision, inasmuch
    as his sworn statements are now duly filed with the County Clerk
    several months prior to the general election.

              Moreover, the candidate at issue in your request certain-
    ly meets the test of Gray v. State, 406 S.W.2d 934 (Tex.Civ.App.
    1966, error dism.).  In Gray, the winning candidate did not file
    his sworn statement until six days after the primary election.
    That court stated that:

                 "The prime legislative aim in the enactment of
            the Election Code of the State of Texas was 'that the
            will of the people shall prevail and that true
            democracy shall not perish from the Lone Star State.'
            V.A.T.S., Election Code, Art. 1.01. Any question
            arising under the provisions of the Code should be
            decided with due consideration given that objective.

                 "A question posed by the situation in the case
            before us relates to the meaning, if any, to be
            attributed to the word 'knowingly' in Art, 14.09
            of the Election Code as applied to an occasion of
            'nonfeasance', i.e., when the guilt or fault on the
            part of the candidate for public office (or nomination
            for public office) amounts only to a want of 'timely
            compliance' with the provisions of Art. 14.08(b) . . .
                 It* *   l



                 "We are convinced that only in an instance where
            a candidate would intentionally and culpably delay
            filing the required statement (in other words when he
            would do so with actual or implied knowledge that the
            electorate would be deceived concerning the identity
            of those who were aiding him in his efforts to win


                                    -5801-
                                                      .     .




Hon. John E. Fitzgibbon, page 6   (M-1188)



     a nomination or elective office and/or the amount of
     aid being received therefrom) that such 'sin of
     omission' should justify judicial deprivation of any
     victory won in the subsequent election. If we are
     correct in this conclusion then the word or term
     'knowingly' . . . would mean that such delay or
     omission was caused or permitted in an attempt to
     influence the election."  406 S.W.2d at 935-36.

          The rationale of the foregoing three court decisions
is also supported by Attorney General's Opinion No. W-1380
(1962), which held that a county Democratic chairman and a
county Democratic executive committee had the duty to certify
the candidate who received the majority of votes in the second
primary, even though the candidate did not timely file his sworn
statement pursuant to Sections (b) and (c) of Article 14.08.

          In view of the foregoing authorities, and under the
facts submitted in your request, you are advised that Alfonso
"Poncho" De La Garza is eligible to have his name,placed on the
ballot in the general election to be held on November 7, 1972.

                        SUMMARY

           In the instant fact situation, the candidate
     at issue timely prepared all required sworn state-
     ments, as required by Article 14.08, Texas Election
     Code, but mistakenly filed them with the county
     Democratic chairman, rather than the county clerk.
     Under the circumstances, this office is of the
     opinion that the candidate has met the "substantial
     compliance" test of previous court decisions, and
     is eligible to have his name placed on the ballot
     for the general election to be held on November 7,
     1972.

                                       truly yours,




Prepared by Austin C. Bray, Jr.
Assistant Attorney General



                             -5802-
Hon. John E. Fitzgibbon, page 7   (M-1188)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Bill Flanary
Bob Gauss
Scott Garrison

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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