                       E              NEY     GENERAL


                           AUSTIN. TEXAS      7S71P
CIIAWPURD c. M*R-rxN
  AITORNEY GENERAI.


                           March 12, 1970


    Hon. Dwayne V. Overstreet               Opinion No. M-594
    County Attorney
    Hardln County                           Re: Whether deadline for filing
    gountze, Texas 77625                        for office of County Treasurer
                                                is extended under facts stated;
                                                and if it is, the date to
    Dear Sir:                                   which It is extended.
              In your letter requesting an     opinion   you   set out the
    following facts which we quote:
              "On February 23, 1970, Mr. Clyde Haynes,
         the duly elected County Treasurer of Rardin
         County, Texas, failed to pay the balance of
         his assessment due to the Democratic Party.
         Mr. Haynes had previously deposited $50.00
         with the party and filed as a candidate for
         re-election. The chairman of the Democratic
         Party in and for Hardln County, Texas, states
         that Mr. Haynes told him by telephone on the
         23rd day of February, 1970, some time before
         the final hour of the deadline for payment of
         the balance of the assessment that he was going
         to withdraw from the race of County Treasurer.
         On February 24, 1970, the chairman to the Demo-
         cratic Party handed to me a copy of the following
         letter:
                                             'February24, 1970
         Honorable Herman Adams
         P. 0. Box 845
         Silsbee, Texas 77656
         Dear Herman:
              With much regret, due to recent illness
         that has restricted my activities for the next


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Hon. Dwayne V. Overstreet,page 2 (M-594)


    several weeks, it was neceseary for me to withdraw
    from the race of County Treasurer.
                             Sincerely,

                             /s/ Clyde Haynes
                            Clyde Haynes, Co. Treas.
                            Hardin County, Texas,."'
The above letter la not "duly acknowledged"as provided by Section
2c of Article 13.12 of the Texas Election Code.
          In addition to the foregoing facts we are Informed
that the County Democratic Chairman made a public announcement
that he was accepting applicationsthrough 6 p.m., March 10,
1970, for the office of County Treasurer and such notification
was carried In the Beaumont Enterprise,a newspaper of general
circulation in Hardln County.
          In view of the foregoing facts you have proposed the
following question:
         "Is the filing deadline for the office of
    County Treasurer under this fact situation ex-
    tended for 15 days. If It Is extended for 15
    days, is the final date March 10, 1970, at 6 p.m.'
          Section 2a of Article 13.12 of the Texas Election Code
reads as follows:
         "2a. The filing deadline stated in Para-
    graph 2 of this article shall be extended for
    the particular party primary and offlce,lnvolved,
    as provided in this paragraph: (I) If between
    the fifth day preceding the first Monday fn
    February and the 30th day preceding the general
    primary, both dates included, any candidate for
    an office dies, if the candidate had complfed
    with all prerequisitesfor having his name placed
    on the ballot which he was required to perform
    by the date of his death; (if) if between the
    first Monday In February and the 30th day pre-
    ceding the general prfmary, both dates included,
    any candidatewho Is seeking nomination to an
    office which he then holds, withdraws or is de-
    clared Ineligible for election to that office;


                       -2832-
Hon. Dwayne V. Overstreet, page 3 (M-594)


    or (III) if between the first Monday In February
    and the 30th day preceding the general primary,
    both dates Included, the only candidate who has
    filed for a particular office In the primary of
    that party withdraws or Is declared lnellglble.
    In the enumerated circumstances,the name,of
    the deceased, withdrawn, or InelIgIble candidate
    shall not be printed on the ballot, and appll-
    cations for that party's nomination for that
    office may be filed not later than 6 p.m. on
    the 15th day following the death, withdrawal,
    or declaration of Ineligibilityof the candl-
    date; provided, however, that where the death,
    withdrawal, or declaration of lnellgibillty
    occurs less than 15 days before the 25th day
    preceding the primary, the deadline for filing
    shall be 6 p.m. on the 25th day preceding the
    primary. Notwithstandingthe provisions of
    Paragraph 2b of this article, an application
    which is not received by the chairman until
    after 6 p.m. on the 25th day shall not be timely,
    and applicationsmailed but not actually re-
    ceived by that time shall not be accepted for
    filing. Further, notwithstandingthe provisions
    of Article 13.08 or any other provision of
    this code, the full amount of the assessment
    or filing fee must be received by the thairman
    not later than 6 p.m. on the 25th day.
          It appears that the purpose of enacting the provisions
of Subdivision (ii) of Section 2a was to extend the filing dead-
line In those instances where a candidate (who Is an officeholder)
decides not to run and whose name will not.appear on the ballot.
In other words, It was the Intention of the Legisiatureto grant
to those individualswho would seek the office If the incumbent
decided not to run an opportunityto have their name placed upon
the ballot In those instances where the incumbent files for re-
election and then decides not to have his name placed on the ballot.
          In the Instant case the Incumbent'sname will not appear
on the ballot for the reason that he did not pay the balance of
the assessment (Attorney General Opinion No. WW-1294 (1962)) and he
notified the County Chairman of the Democratic Party that he was not
seeking reelection. It is our opinion that the incumbent "withdrew
his candidacy by his refusal to pay the assessment within the mean-
ing of Subdivision 2(1)(i) of Section 2a of Article 13.12.



                       -2833-
Hon. Dwayne V. Overstreet,page 4 (M-594)


          You are therefore advised in answer to your question
that the time for filing applicationsfor the Democratic Party's
nomination for the office of County Treasurer of Hardin County,
under the facts submitted by you, is extended until 6 p.m.,
March 10, 1970.
                      SUMMARY
         Under the provisions of Section 2a of
    Article 13.12 of the Texas Election Cod,ethe
    time for filing applicationsfor the Democratic
    Party's nomination for the office of County
    Treasurer of Hardin County was extended until
    6 p.m.,-~,March
                  10, 1970, by the action of the
    Incumbent County Treasurer notifying the County
    Chairman of the Democratic Party of his intent
    to withdraw from the race of County Treasurer
    after first filing for reelection, together
    with his refusal to timely pay the balance of
    his assessment.
                             YOU&   very truly,




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Gordon Cass
Jim Swearingen
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant


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