THE      A'ITOIRNEY          GENERAL
                             OF TEXAS




Honorabft Frank X. Vance      ~’      Opinion No. WW-1377
County Attorney
Medina County Courthouse              Re:   Whether an Independent can-
Honda, Ibaa                                 didate who has failed to
                                            timely 1114 an affidavit
                                            as required by Station 3,
                                            Art. 13.47a, !kaa Election
                                            Code, may have his name
                                            printed on the General Alec-
Dear Mr. Vanosr                             tion ballot.
      You have asked whether or not &dependent candidates for
county and precinct     offioes    are entitled   to have their namea
printed on the General      Eleotion   ballot,  ?ihen theg have flailed
to oompay with Seotlon 3, Axt. 13.47a, Texa6 Eleotlan Code,
whioh mpulres the filing        of an affidavit    of their Intention to
run as Indtptndsnt     oandidatse with the County Judge on OF before
the first  Monday in February of elsotlon        year.
       In your Iettep   you atate:
                “All county and precinct    offficera
            of Medina County, except     one precinct,
            run fop eleotidn    as tIndependentf can-
            didatta in the general election       in Nov-
            ember, and have been doing this for
            many years.    !lhle ie being done as
            provided in Art. 13b53of the Election
            Code through a petition     of vottrs
            rithin 30 days aftelr the pxQaalry,
                “Now a question has arisen,      as Borne
            olalm that Art.’ 13.&a (new provision)
            of the Eleotlon Code rcsqutres that can-
            dldatta muat, file their agplloaCion to
            get their name8 on the ballot       in Feb-
            ruary * All candidates      (Independent)
            hagia,f;le$  an application,     but not laut
                      e*  &phasia     addeg-
       H. 8. 239# Chapter 90, page 273, Sac. 1 was enacted by the
57th   Legislature  at its Regular Session ln 1961, and haa been
codified    aI) AN. 13+47a, Ttxas Eltction Code,  Sectionr 1 and 2
        \                                               .




               Xonorable    Frenk X, Vance,    page 2              Opinion No, WW-1377


                of Art. 13.47a are applicible   to parties whioh nominate their
                candidatos by convention,   and do not ooncern Independent candi-
              , dates.   Stations 3 ahd 4 of Art. 13.47a, Texas Election  Code,
                mad as follows:
                                 “Sac * 3. As a condition       precedent to
                            having a aandIdatess name Qrlnted on zhe
                            official    ballot under Artiole
                            13.5g     or Article    230 mt.
                            this Code, there must, In
                            requirements of those two (2) Artlolee
                                 fll d With the peroon with whom thi
                            wkttti     ~vvllostlon    must, thereunder, be
                            tiled;    an affidavit,    dulr aoknowledged
                            by the person desiring        his name to be
                            plaoed on the ballot       stating   his ooougl-
                            tlon, aounty of refddenoe,         post offlod
                            address, l%e. and the offloe         for whloh
                            he Intehddr-t6 run.
.



                                 “Sec. 4,   lht requirements of Sections
                            1 end 3 hereof shall not apply    to nOmlneCt8
                            fop unexpksed ,terme wherb the vacancy In
                            office    bccumtd aubsequtnt to the tenth
                            day preceding the deadline for filing        aa
                            prescribed    herein,’
                     Art.   13.12, Blleotfon   Code, reads In part aa follows:
                                ”a 0 0

                               “2.   Any ouch rtqueat shall be flbed
                                   with the county ohalrman In oaae of’
                            ioikip  and precinct  offloers; au”,hf;;;eet-
                            shall be file4 not later than
                                                                               0II

    :. . .%          Articles    13*50, to 13.53> Inclusive,   Eleotlon Code, govern
               the filing     of IndepeRdent candfdates.     Art, 13.50 pertains to
               Independent candIdatea for stats and diatriot         office.     Art. 13.51
               sets out the oath to the applIsatIonO         Art. 13.52 pertalns to
               the Independent candidates8 consent to run,          Art, 13.53 etatee
               that Independent candidates for county offloe          ehall’flle   their



                               i



I


                                                                         I
    Honorablr     Prank X. Vance,   page 3               Opinion   No. W-1377



    application   with the County Judge, accompanied by the petition
    of voters         to 5s of all who voted in the county in the laat
                  equal
    Qeneral tlection.    Precinct  offices are not mentioned in Art.
    13.53, but Dancy v. Hunt, 294 S,W.2d 159 (Civ.App.     1956, error
    reS. n.F.8.‘) h ld th t Independent candidates for precinct      of-
    fice murt pre&taa     pttition  signed by enough voters to be equal
    to 5# OS all who voted in the precinct    in the last Oeneral Elec-
    tion.
           Note that Sec. 3, Art. 13.47a, Election Code, doea not af-
     fect th6 procedures laid down in Arts 13.50 and 13.53.            Art.
     13.47a atetea   that an affidavit    of intention    to run, containing
    certain speciiied     information must be filed      “with the person with
    .whomthe rrltten     application   must, thereunder ,&ta.      13.50 and
    13.59,    be ?lled,”   and such affidavit    is “In additiontD the re-
    quirements of those two (2) Artlclea.”          After filing   the afTi-
    davlt oi intention     to run on or before the first       Monday in Feb-
    ruary, the In&ependerit*~candidate atill      has until 30 days after
    the Second Primary Under Art@. 13.50 and 13.53 in which to file
    his petition    algned by the required    number of voters.
           Heretofore,    it ha8 been possible      for a proepective     Indepen-
    dent canbidate to wait until both the First and Sedond Primaries
.   Were over in order to determine whether he wanted to face in the
    General Zleotion      one or more party candidate% who had been ae-
    lected in the party primaries.           Now, a candidate for office      as
    an Independent candidate must file at the earn8 t-8              party candi-
    dates must file.        IhFreafter,    the party candidate makes hia race
    in the primary electYcJh8 or at the party convention (If his party
    is not required to hold a primary election),            while the Indepen-
    dent candidate goes about rounding up signaturea for his petition.
    In come counties in Texas* it has been the practice              for all can-
    didates to run as Independent candidates.            The 1962 Qeneral Elec-
    tion ia the first       General Election    to be affected    by Art. 13.47a,
    and the effect      of this act wan not noted by some candidates un-
    til it was too late to comply with the provision             oalllng   for the
    affidavit    of intention     to run to be filed by the first        Monday in
    February s This Is unfortunate,          but the statute   ir etate-wide     in
    its application,      without regard to the practice       which has been
    heretofore    followed.     Set, 3p Art. 13.47a states that the filing
    of the affidavit      by the first     Monday in February Is “a condition
    precedent to having a candidate’s          name printed on the official
    ballot” aa an Independent candidate,           We hold, therefore,      that
    where the race is to be made for an office,           the,term of which be-
    gins on January l8 1963, Independent candidates must have filed
    the aiiidavft      o? intention     to run required in Seo. 3* Art. 13.47a,
Honorable    Frank X. Vance,    page 4               Opinion No. W-1377


Blection    Code, on or before the first      Monday in February, 1962,
&order      to have their names printed      on the General Election bal-
    .
        Under Sec. 4, Art. 13.47a, Election        Code, the requirement
for the affidavit,       and Its timely filing,      is not required If the
race is to fill       an unexpired term, where the vacancy in offlce
(death, resignation        or removal from office      of the oiflce     holder)
occurred aster the tenth day preoedlng the flrat              Monday in Feb-
ruary . Therefore,       if any races In Medina County are Sor county
or precinct     office   to fill   out the unexpired term of an office
holder whose term of office         does not expkre until December 31,
1964, and which ofiice        holder died, reelgned,      or was removed from
office,    alter January 25, 1962, then the requirement in Sec. 3,
Art. 13.47a, Election        Code, for an affidavit,      timelaf filed,     is
not applicable.
                                SUMMARY
             Where a county or precinat oiflce      is to be
      filled    at the General Election    for a full four year
      term, an Independent candidate must have Siled his
      affidavit    o? intention   to run for such oftice   with
      the County Judge on or before the Slrat Monday in
      February of the selection year, in order to have his
      name printed on the General Election ballot,        a8 re-
      quired by Sec. 3,,Art.      13*47a, Election Code.     The
      timely filing     of &pah affidavit   is a requirement
      uhioh la in addition      to all other requirements ior
      Independent oandfdates found in Arts. 13.50 to
      13.53,    %nolusive, Election Code D
            Where only an unexpired       term of a counts or
      precinct   oifice   is to be:fflled     at tire Qcneral
      Election,   and such vacancy in oifice        occurred sub-
      sequent to the tenth day preceding the Plrat Mon-
      day in February o? the election         years the aflida-
      vit referred     to in Sec. 3, Art. 13.47a, Election
      Code, is not required,       See, 4, Art, 13.47a, Elec-
      tion Code.
                                               Yours very       truly,

                                               WILL WILSON
                                                Attorney   General       oi Texas




                                                     Amlatant



                                             ,.. .
.      .




    Honorable Frank X. Vatice, page 5   Opinion No. W-1377


    8tF:rk
    APPROVBD:
    OPINION COMMITTl$Ei:
    U. V. Geppert,   Chairman
    Gordon Zuber
    Frank Booth
    Bob Patterson
    Pat Bailey

    ReVIEWED FOR THE ATTORNRY GENRRAL
    BY: Leonard Pasrmore