               E               EY     GENE
                                    AS




                       November 10, 1961



Honorable P. Frank Lake             Opinion No. WW-1193
Secretary of State
Austin, Texas                       Re:   Filing fees in special
                                          congressional election
                                          to be held on December
Dear Sir:                                 16, 1961.
            Your opinion request reads as follows:
          "Your opinion Is respectfully requested
     concerning the statutory fll~ingfee which must
     accompany.tha application submitted by a person
     to appear upon the official ballot In the special
     election to be held in the 13th Congressional
     District of Texsrson the 16th day of December,
     1961, for the purpose of electing a representative
     in Congress for such district to serve out the un-
     expired term of the Honorable Frank N. Ikard. The
     special election in question was called,by
     Qovernor Daniel on November 8th. The deadline
     for filing ,an application to appear on the ballot
     in such election is, as I have computed it, mld-
     night of November 15th.
          "Article 32a of the Texas Election Code
     (Article 4.10, Vernon's Election Code), which
     applies generally to applications to appear upon
     the ballot at special elections, provides that
     an application to appear on the ballot I * + *
     must be filed not later than thirty (30) days
     before any such special election, and must be
     accompanied with a fee of * * * five dollars
     ($5.00) If a district or county office, * * *.I
          "A new article, designated as Article 32b,
     was added to the Election Code of Texas by Senate
     Bill No. 3, Acts 57th Legislature, Second Called
     Session, 1961. This Act becomes effective on
Honorable P. Frank Lake, page 2 (ww-1193)


     November 13, 1961 (90 days after August 14, 1961,
     the date of adjournment of the Second Called
     Session of the 57th Legislature). Section la of
     Article 32b reads as follows:
          "'In any special election called to fill
     a vacancy in the office of United States
     Representative in any congressional district
     of the state, the filing fee shall be Five Hundred
     Dollars ($500.00).t
          "The questions specifically submitted are:
          "1. Will the provisions of Article 32a
     providing for a filing fee of $5.00 apply to
     applications received in this office prior to
     midnight of November 12?
          "2. Will the provisions of Section la of
     Article 32b providing for a filing fee of
     $500.00 apply to applications which are received
     In this office between midnight of November 12
     and the deadline for filing such application In
     the election; or
          “3.  Will the provisions of Section la of
     Article 32b apply to all applications received
     in this office after November 8 and prior to
     November 15 deadline?"
          Article 32b of the Election Code, which becomes
effective on November 13, 1961, can have no force as law
before that date. Whether it will operate retroactively
after its effective date on fees paid before that date
depends, first, on whether the Legislature Intended to make
it retroactive, and, secondly, on whether such retroactive
operation would impair any vested rights. Even if the
Legislature did so intend, It could not be applied to Impair
a vested right in violation of Article 1, Section 16 of the
Texas Constitution, which provides that "no . . . retroactive
law . . . shall be made." This constitutional provision is
construed merely as forbidding the enactment of any law that
will prejudicially affect existing; vested rights, or the
operation of a law In such a manner as to have that effect.
r   -




        Honorable P. Frank Lake, page 3 (WW-1193)


        The inhibition is not ordinarily extended to a procedural or
        remedial statute, or, in fact, to any act which does not
        disturb or impair vested.rlghts. 39 Tex.Jur., Statutes,
        Sec. 27. In our opinion, a person who files his application
        as a candidate prior to November 13, and pays the filing fee
        prescribed In the statute in effect on the date of filing,
        will not acquire any vested rightwhich would prevent a
        subsequent change in the election proceduies.
                  Since there would be no constitutional obstacle
        to making the fee provision of Article 32b operative retro-
        actively in elections called before Its effective date, the
        answer to your questions depends on whether the Legislature
        Intended for It to have euch operation.
                  We have found no case construing the effect of
        statutory changes in election procedures which become effeo-
        tlve during the interval between the date on which an elec-
        tion Is called and the date on which it is held. The closest
        analogy is found in cases dealing with changes in procedure
        in pending legal proceedings. The Legislature may change
        procedures In pending proceedings, and a statute changing
        proceedings prima facie applies to pending proceedings.
        Walker v. Lylea, 45 S.W.2d 315 (Tex.Civ.App. 1931, affirmed
        124 T .      ???S.W.2d 1113); Devlin v. Held Bro8., 47
        ~.~.2r383 tTex.Clv.App. 1932; error diam.).
                  The election in question is to take place after
        the effective date of Article 32b of the Election Code.
        Further, the filing deadline occurs after the effective date
        of the new law. We believe that It was the intention of the
        Legislature that all election procedures, Including the pay-
        ment of filing fees, be governed by the provisions of the
        new law,. The law is prospective In operation and prescribes
        the entire procedure for elections held after the effective
        date of the act.
                  To construe the statute otherwise would attribute
        to the Legislature an intent to allow some candidates to pay
        a fee of five dollars and to require others to pay a fee of
        five hundred dollars.
                  In Wood v. State, 133 Tex. 110, 126 S.W.2d 4
        (1939), the Supreme Court of Texas said:
Honorable P. Frank Lake, page 4 (m-1193)


         "It Is the settled law.that statutes should
    be construed so as to carry out the legislative
    Intent, and when such Intent is,once ascertained,
    it should be given effect, even though literal
    meaning of the words used,therel.nIs not followed.
    Also, statutes should never be given a construc-
    tion that leads to uncertainty, Injustice, or
    confusion, if It Is possible to construe them
    otherwise."
          We therefore hold that all candidates who file,
regardless of whether they file before or after the effec-
tive date of the act, must pay the five hundred dollar filing
fee prescribed In Article 32b of the Election Code.

                          SUMMARY

          In the special con ressiona~lelection to be
     held on December 16, 19iii
                             1, all candidates who
     file applications to have.their names placed on
     the ballot must,pay the five hundred dollar filing
     fee prescribed In Article 32b of the Election Code,
     regardless of whether they file before or after
     the effective date of the'act.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas


                                By:                 &&-4?L

MKW:afg                               Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry Braswell
Marvin Thomas
Fred Werkenthln
Iola Wilcox
REVIEWEDFORTHEATTORNEYGENERAL
BY: Houghton Brownlee
