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    Hon. H. A. Hull, Chairman        Opinion No. S-41
    House Committee on Privileges,
      Suffrage, and Elections        Re:   Constitutionality of the
    53rd Legislature                       method, If any, provided
    Austin, Texas                          by Senate Bill 2 to fi-
                                           nance the presidential
                                           primary election this
    Dear Sir:                              bill creates.
            You have requested an opinion on two questions relating
    to Senate Bill 2, now being considered by your committee, as
    follows:
            "(1) Does the bill purport to provide for a manner
                 of financing the primary It creates?
            "(2) If, in fact, the responsibility of financing
                 would fall on the State and/or County Govern-
                 ment, would this provision be constitutional
                 in view of the fact that the primary is
                 strictly a party function?"
            Senate Bill 2 Is commonly referred to as the Presiden-
    tial Preference Primary Bill. It provides for the holding of
    a primary on the second Saturday in June of each presidential
    election year for the election of delegates to the national
    convention of each political party whose nominee for Governor
    in the last preceding general election received as many as
    25,000 votes. It also provides for voting on presidential and
    vice-presidential candidates and binds the delegates to vote
    for the successful candidates on the first ballot at the
    national convention.
            This election is to be proclaimed by the Governor and
    ordered by the county judges of the respective counties, and
    writs of election and notices are to be Issued and published
    as provided by law for general elections. The election Is to
    be held by the general election officials named by the commis-
    sioners ' court, and the officers are to receive the same fees,
    allowances and wages as In general elections. Ballots are to
    be prepared by the Secretary of State, and returns of the elec-
    tion are to be canvassed by the commissioners' court of each
    county and then forwarded to the Secretary of State in the
                                                                 I




Hon. H. A. Hull, page 2 (S-41)


manner ,and within the time prescribed for general elections,
to be finally canvassed by that officer. Applications for
placing the names of candidates on the ballot are to be filed
with the Secretary of State, and there must be paid for each
candidate a filing fee which the Secretary of Siate is re-
quired to pay and deliver to the "General Fund.    We take it
that the fund referred to is the General Revenue Fund of the
State. However, no provision is made for keeping these fees
separate from other moneys in the Fund which are derived from
taxation or for disbursement of the fees to help defray the
costs of the election. We might also observe that the total
collections would probably be far less than the expenses incl-
dent to the election.
        Section 5 of the bill reads as follows:
        "Arrangements and Expenses of Election. The laws
    of this State relating to ballot boxes, stub boxes,
    voting booths, guard rails and other election supplies
    for general elections, and the guarding, checking, dis-
    tribution, safekeeping and storage ;f same, shall apply
    likewise to such primary elections.
        Section 77 of the Texas Election Code (Article 7.12,
Vernon's Election Code) provides:
        "All expenses incurred in furnishing the supplies,
    ballots, and booths in any general or special election
    shall be paid for by the county, except costs in munl-
    cipal and school elections. All accounts for supplies
    furnished and services rendered shall first be approved
    by the Commissioners Court before they are paid by the
    county."
        It Is seen that the election, although termed a primary,
is to be conducted much in the same way that general state-wide
elections are conducted. We believe the intent of Section 5 of
the bill is to make the provisions of Section 77 of the Election
Code, placing the expenses of general elections on the counties,
applicable to these primary elections. Section 77, although
referring to accounts for 'services rendered,? may not cover
payment for services of election officials but may refer only
to other types of services. However, Section 22 of the Election
Code provides that the pay of judges and clerks of general.elec-
tions shall be determined by the commissioners' court of the
county where the services are rendered, and ,that their compensa-
tion shall be paid by the county treasurer upon order of the
commissioners. We believe a reasonable interpretation of the
provision in Section 4 oi Senate Bill 2 which states that 'such
-.   .

         Hon. H. A. Hull, page 3 (S-41)



         officers shall receive the same fees, allowances, and wages as
         in general elections" is that not only the rate of pay but the
         source of pay is to be the same as In general elections.
                 In answer to your first question, then, our conclusion
         is that Senate Bill 2 does purport to provide a manner for fl-
         nanclng the primary it creates, namely, by each county's paying
         the expenses of the election in that county In the same manner
         as expenses of a general election are paid.
                 In your second question you ask whether the responsibll-
         ity for financing this type of election may be placed on the
         state or county government. In Waples v. Marrast, 108 Tex. 5,
         184 S.W. 180 11~116).the Subreme Court of Texas held that a
         provision In the Presidential Preference Primary Law of 1913
         (Acts 33rd Leg., 1913, ch. 46, p. 88) requiring the counties
         to pay the expenses of the election violated Section 52, Arti-
         cle III and Section 3, Article VIII of the Texas Constitution.
         Section 3 of Article VIII provides that taxes shall be levied
         and collected for public purposes only, and Section 52 of Ar-
         ticle III prohibits the granting of public money in aid of, or
         to, any individual, association, or corporation. The gist of
         the opinion is that political parties are voluntary associa-
         tions and not governmental instrumentalities, and that the
         holding of their primaries Is not a public purpose In the
         sense in which the term Is employed as a limitation upon the
         State's power of taxation. The courts of this State have con-
         sistently adhered to this concept of the nature of political
         parties in subsequent decisions, Bell v. Hill, 123.Tex. 531,
         74 S.W.2d 113 (1934); McCombs v. Stevenson, 195 S.W.2d 566
          Tex.Civ.App. 1946); Wall V. Currie, 147 Tex. 127, 213 S.W.2d
          16 (1948).
                 In 1944 the Supreme Court of the United States held In
         Smith v. Allwright, 321 U.S. 649, that the exclusion of Negroes
         from the Democratic primaries In Texas through a rule adopted by
         the state convention of that party was in violation of the Flf-
         teenth Amendment to the Federal Constitution, which declares
         that the rights of citizens to vote shall not be denied or
         abridged by the United States or by any State on account of
         race, color, or previous condition of servitude. The court
         said that the statutory system In Texas for the selection of
         party nominees for inclusion on the general election ballot
         makes the party which is required to follow these legislative
         directions an agency of the State insofar as it determines the
         participants In a primary election. "If the State requires a
         certain electoral procedure, prescribes a general election
         ballot made up of party nominees so chosen and limits the
         choice of the electorate in general elections for state
                                                               .   .-

Hon. H. A. Hull, page 4 (S-41)


office, practically speaking, to those whose names appear on
such,a ballot, It endorses, adopts and enforces the discrlm-
inatlon against Negroes, practiced by a party entrusted by
Texas law with the determination of the qualifications of
participants In the primary. This Is state action within the
meaning of the Fifteenth Amendment." 321 U.S. at 664.
        Smith v. Allwright Involved solely the question of
whether party action In excluding Negroes from a primary elec-
tion was in violation of the Federal Constitution. Directly,
the decision had no effect whatever on the question of whether
the primary was a public purpose within the meaning of the Con-
stitution of this State. It did compel a revision in the de-
cisions of the Texas courts ,onthe power of a political party
to prescribe the qualifications of its members, and it over-
ruled Bell v. Hill. To what extent this enforced revision of
the concept of a political party's powers might affect the
decision in Waples v. Marrast is brought to our attention by
the holding of the Supreme Court of Arkansas In Adams v.
Whittaker, 195 S.W.2d 634 (Ask.Sup. 1946).  In that case the
court took the view that Smith v. Allwright In effect overruled
Waples v. Marrast, and, relying on the Allwright case, held
that the expenses of a party primary could be paid out of
public funds.
         It Is within the province of the courts of this State
to place their own interpretation upon the provisions of the
Texas Constitution. Even if the Supreme Court of the United
States or the courts of other States might be of the opinion
that the holding of party primaries Is a public purpose which
may be supported by taxation, the Supreme Court of this State
would still be free to give a different construction to prohl-
bltlons in our State Constitution. See 21 C.J.S., Courts,
BEl.204,205.   However, upon analyzing the holding in Smith v.
Allwright we are unable to agree with the view taken by the
Arkansas court that this decision had a bearing on the ques-
tion before us. The Allwright case held, In effect, that the
State, by permitting political parties to place candidates
on the general election ballot and by requiring them to make
tneir nominations In a certain way, had placed the parties
within the regulatory power of the State to such an extent
that party action became state action insofar as particlpa-
tion in the selection of nominees was concerned. We do not
think the opinion was intended to mean that the parties became
Instrumentalities of the state government in the sense that
the State had any duty to maintain and finance their activities.
It meant only that a party, by being given a voice in the elec-
tive process of the State, must conform to the same constitu-
tional restrictions which are imposed upon the State Itself.
Hon. H. A. Hull, page 5 (S-41)


This interpretation of   the import of the decision Is borne out
in Mr. Justice Clark's   concurring opinion In Terry v. Adams,
decided by.the Supreme   Court of the United Stateson~ May 4,
1953 (21 U.S. Law Week   4346), wherein he,said:
        "In Smith V- Allwright; 321 U.S. 649 (.1944),this
    Court held that,the Democratic Party of itself, and
    perforce any other political party, is:prohibited by
    that Amendment from conducting a racially discrlmina-
    tory primary e.lection..,By the,rule of,that case, any
    'part~of t~hemachinery forchoosing officials' becomes
    subject,to 'the Constitution's restraints. a., at 664.
    There, as here; we dealt with an organization that took
    the form of 'voluntary a,ssociation'of unofficial char-
    acter. But bec,auseIn fact ,lt.functioned as a part of
    the state's electoral maehlnery,,we,held It controlled
    by the same constitutional limitations that ruled the
    officia,lgeneral election."    .:.;
        In Terry v. Adams.the Supreme Court exten,dedthe hold-
ing of Smith v. Allwright to  primaries.of ,a political organiza-
tion which were conducted.entlrely outside the framework of the
State's regulatory measures, in which Iformal State action,
either.by way of legislative recognition or official authoriza-
tion, Is wholly want~ing;",(21 U.S. Law Week 4351.)   If Smith
v. Allwright had the effect of making the Democratic primary
a state function which could be financed out of public tax
money, Adams v. Terry has made the totally unauthorized and
unrecognized primary of the Jaybird Party a state function
which likewise could be financed by taxation. The mere state-
ment of such a contention is its own refutation.
        Cur evaluation of the course of judicial decision
since Waples v. Marrast is that there has been nothing in the
cases to lead us to believe that the Supreme Court of Texas
would now overrule that case. Accordingly, our answer to
your second question is that a statutory provision requiring
the payment of the expenses of the primary created by Senate
Bill 2 out of public funds raised by taxation Is unconstitu-
tional.
        However, we would like to point out that we see no
constitutional objection to the financing of the election,
administered by state or county officials, out of a fund made
up of the filing fees of the candidates supplemented by assess-
ments against the participating parties, a registration fee
against participating voters, or some other similar means.
Furthermore, the impediment to payment of the expenses of the
election In the manner presently contemplated in Senate Bill
2 could be cured by the adoption of a constitutional amendment.
                                                                            . ,.

Ron. H. A.,Hull,        Rage 6 (S-41)


                                   SunNARY
                Senate Bill 2’ oi the 53rd L@slaturc,        the’
         Presidential     Preference Prlnary Bill,     purports to”         ”
         provide for thiz payment OS the expenses of,the
         election     which it creates out of county fknds in          ‘,
         each’ countp.:,ln the 8ame Myy       ‘a8 expenses of a
         general .bl+ctiozk,are p&Id.
                                                    .~
            ,. ,‘A &&&r~      p&v~~~6n”&qeqril&      the payment of
         the expenses of the’prlmary,created.by         Seiuite Bill
         2 out of public .funds ‘+alsed by taxation I.8 ‘uncon-
         stitutional.       Waples V. Maarrast;108 Tex. 3,“184 S.W.
         180 (1916). iiowever’, there would. be no constitutional
         objection     to the financing   of the election    out of a
         fund made up of the filing.feea        of th$, candIdat     .
         supplemented by assessaetits      against, the participating
         parties,     a regiatratlon   fee against participating
         voters,    or 8ome~other slnllar~mean8.’      Furthermdre,
         the ‘Impediment to the payment ~oi, the expen8es. of
         the election      In the manner presently eotitemplatcd
         in Senate Bill 2 could be cured bg the adoption of
         a conetltutlonal’      amendment.

APPROVED:                                 %tlZ’S   V~‘-tX’U~~,

Will18  E. Oresham                         JORH BEN SREPPERD
Reviewer                                   Attorney General
Robert S. Trottl                                   ._,
First A8Si8tant
 John Ben Shepperd
,.Att-ornwy ~@eneral                                 Assistant
