                                March 26,      1968
Honorable   Roy R. Barrera               Opinion   No. ~-215
Secretary   of State
Capitol   Station                        Re:   Whether the name "American
Austin,   Texas   78711                        Party" Is available    under
                                               the provisions    of Article
                                               13.57 of the Texas Election
Dear Mr. Barrera:                              Code and relating    questions.

             Your   request   for    an opinion    reads   as follows:

           "The American Party on October 27, 1967 certl-
     fled to this office      that its nominations       for the
     1968 voting    year would be made by conventions           and
     not by primary elections.        Secretary     of State John
     L. Hill by letter      dated February 1, 1968 advised
     that the name 'American Party'        was available      for
     use by the new political       party.    (Art.   13.57.)     On
     February 15, 1968 the American Party advised             the
     Secretary    of State that it would not have nominees
     for statewide    offices    but Intended to certify        can-
     didates   for President     and Vice President      of the
     United States    and for presidential      electors.

            "This office     has received      inquiries     from county
     clerks   and county assessor-collectors             relative   to
     their   authority    or duty to file       certain     notices  and
      supply voter registration        lists    to the American Party.
     Your opinion      Is respectfully      requested     on these spe-
     cific   questions9

             "(1)   Is the name 'American Party' available
     under     the provision of Art. 13.57 of the Election
     Code?
            "(2)   Should the county clerks    accept           for filing
     the notices    required    of the American Party           by the
     Election    Code?    (Art.   13.34.)

             "(3)    Is the registrar of voters  required     to
      furnish     the American Party a list  of registered
      voters    for not more than $5 per set?     (Art.   5.19a,
      Election     Code.)
             (1a . . II
                                    -1031-
Hon.    Roy R. Barrera,             page   2,    ~-215


               Article           13.57 of the Texas Election         Code ~providesr

             "Wo,new political       party shall assume the name
        of any pre-existing     party;    and the party name print-
        ed on the official     ballot    shall not consist of more
        than three (3) words."

               In~Morrls           v.   Mims,    224 S.W.   587, (Tex.Clv.App.     1920),
the    Court   stated:
               ,I
                    o The Legislature
                        m    .            may make reasonable    reg-
       ulations   as to how nominations      may be made, but it
       cannot prohibit     such nominations,    whether by a new
       party or an old one (Qilmore v. Waples, 108 Tex. 167,
       188 S.W. 1039); and it cannot nullify         the effect   of
       such nominations,      when legally   made, by prohibiting
       the printing     of the names of such nominees upon the
       official   ballot,    the same being the only ballot      that
       can be legally     voted."

           In construing   the provisions  of                   Article  3174, Revised
Civil Statutes   of Texas, 1911 (now Article                     13.57 of the Elec-
tion Code, supra),    the Court said:

               "The statute      prescribes     no method by which a
        new party may make nominations.               Such being the
        case,    a new party has the right           to pursue any rea-
        sonable method in making its nominations,                not pro-
        hibited    by law.     As the American party pursued one
        of the methods prescribed           by statute     for making
        nominations     by pre-existing       parties,     we hold that
        such method was reasonable,            and, as there is no
        law forbidding      it to pursue such method, we hold
        that its nominations         of the candidates        named in the
        petition    herein were legally         made.     The same having
       ,been properly      certified     to the secretary       of state,
        it is his duty to certify           the names of such candl-
        dates to the proper election            officers,     whose duty
        it will be to print or cause to be printed                 the
        names of such candidates           on the official      ballots
        as the nominees of the American party."

            You             state in your letter    that on February 1, 1968,
the Secretary               of State advised    that the name "American Party"
was available               fo,r use by the new political   party.   Further-
more, you have                certified as followsn

              'I,  ROY R. BARRERA, Secretary of                  State of the
        State of Texas DO HEREBY CERTIFY that                    according    to
        the records   of Secretary of State the                  returns   of

                                                -1032-
Ron.   Roy R. Barrera,     page   3, M-215


       the General Election    held on November 2, 1920
       show that the American Party was on the Texas
       election   ballot  and the vote cast for the
       electors   of this party for President  and Vice-
       President.

              “I further certify  that the American
       Party has not been certified    on the General
       Election   ballot since November 2, 1920.”

It IS our opinion,      therefore,    that the phrase “pre-existing
party” refers    to a party existing      at the time a new political
party is formed.       Therefore,    you are advised    in answer to
your first   question,    under the factual     situation   submitted,
that the name ‘American        Party” Is available     under the pro-
visions   of Article    13.57 of the Election      Code.

             You state     in your request     that on February 15, 1968,
the American Party advised          the Secretary      of State that it
would not have nominees for statewide             offices    but intended       to
certify    candidates    for President      and Vice President      of the
United States and for presidential            electors.       In Seay v. Latham,
143 Tex. 1, 182 S.w.2d 251, (1944), it was held that in the
absence,of     a statute    directing    how a political       party should
elect   its nominees for presidential          electors,      the party is free
to follow    any method which it may choose             in keeping with party
customs not expressly        prohibited     by statutes;     and the Secre-
tary of State is required          to certify    to the election      officials
the names of the party nominee a to be placed on the official
ballot.

             In view of the foregoing,    you are advised   in answer
to your second question      that the county clerk must accept     for
filin    the notices  required   of the American Party by Article
13.34 7 e) of the Texas Election     Code wherever precinct   con-
ventions    are being held by the political     party An his county.

            Subdivision    3 of    Article    5.19a   of   the   Texas   Election
Code provides    as follows:

              “No charge shall be made for lists      furnished
       for use in elections     held at the expense of the
       county or any city or other political        subdivision.
       For each set of original     and supplemental     lists
       which the registrar    is required   to furnish     to the
       executive   committee of a political     party for use
       in Its primary elections,     the registrar    shall be
       permitted   to charge not more than Five Dollars          ($5),
       to be paid by the party or the chairman so ordering


                                    - 1033-
  Hon.   Roy R. Barrera,      page   4,    m-215


         the lists,    which charge shall be in full             for
         both the original       lists    and the supplemental
         lists.     The registrar       shall  also furnish      to
         the county executive         committee of each pollt-
         ical party,    for any year in which such party
         is holding    precinct      conventions,      one set of
         the original     and supplemental        lists   for use
         in qualifying      persons     to participate      in such
         conventions,     for which the registrar           shall be
         permitted    to charge not more than Five Dollars
            ($5).”
              In answer to the third question,        you are, therefore,
  advised  that the registrar     of voters    is required    to furnish
  the American Party a list      of registered    voters   for not more
  than Five Dollars    ($5) per set if the political         party is
  holding  precinct  conventions.

                                SUMMARY

                The name "American Party"        is available     under
         the provisions      of Article   13.57 of the Texas Elec-
         tion Code.      The county clerk must accept         for filing
         the notices     required   of the American Party by Arti-
         cle 13.34(e)     of the Texas Election       Code wherever
         precinct    conventions    are being held by the political
         party in his county.         The registrarof      voters     is re-
         quired under Article       5.19a of the Texas Election
         Code to furnish       the American Party lists       of regis-
         tered voters     for not more than Five Dollars           ($5)
         per set if the political        party is holding       precinct
         conventions.

                                                   truly     yours,

                                                           iz*L=-
                                                           C. MARTIN
                                                           General of Texas

Prepared     by John Reeves
Assistant     Attorney General

APPROVED:
OPINION COMMITTEE
Hawthorne Phillips,    Chairman
Kerns Taylor,   Co-Chairman
W. V. Geppert
John Grace
Harold Kennedy
James McCoy

A. J. CARUBBI, JR.
Executive Assistant
                                          -1034-
