Untitled Texas Attorney General Opinion ( 1972 )


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  • Honorable Robert S. Calvert           Opinion No. M-1068
    Comptroller of Public Accounts
    State Finance Building                Re:   Whether payment of
    Austin, Texas  78711                        vouchers may be made;
    whether Article 5.05,
    Honorable Bob Bullock                       subdivision la(S) and
    Secretary of State                           (81, Texas Election
    State Capitol                               Code, is constitutional;
    Austin, Texas 78711                         and, concerning the au-
    thority of the Secre-
    tary of State to make
    expenditures for con-
    duct of primary elec-
    tions.
    Dear Messrs.   Calvert and Bullock:
    The close relationship between the matters presented
    by your opinion requests and the desirability of having
    replies as soon as practicable prompts us to make this
    joint reply.
    On Thursday afternoon, 10 February 1972, Mr. Calvert
    requested our opinion on two basic questions: (1) Can pay-
    ment be lawfully made on three specific vouchers presented
    for payment by the Secretary of State, Mr. Bullock.   (2)
    Whether similar payments may lawfully be made out of ap-
    propriations for the Office of Secretary of State. The
    vouchers are of differing natures. One covers an expense
    item which seems authorized by statute and for which legis-
    lative appropriation has been made. The second covers an
    item which in part and under proper circumstance might be
    authorized by law, but which the voucher shows to have
    been made by unauthorized persons and for an unauthorized
    purpose. The third covers an expenditure made contrary to
    law, for an unauthorized purpose, and by unauthorized per-
    sons. The latter two vouchers concern expenses of a pri-
    mary election. All present the question whether the order
    of the Federal Court in Johnson v. Bullock, (the filing fee
    -5215-
    ,    .
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 2    (M-1068)
    case, No. CA3-5373-C, &rthern District of Texas), confers
    on the Secretary of State, Mr. Bullock, any power greater
    than, or different from, that conferred upon him by the
    Texas Election Code. The answer  to Mr. Calvert's second
    question depends upon whether requests for "similar payments"
    are requests for payments similar to those authorized by
    law, or similar to those unauthorized by law.
    On Friday afternoon, 11 February 1972, Mr. Bullock
    requested our opinion whether or not Article 5.05, sub-
    divisions la(S) and (81, is constitutional.  It has to do
    with duties of the County Clerk and city clerks or secre-
    taries in conducting absentee voting in primary elections,
    and with hiring and payment of deputies for such purpose.
    A duscussion of the questions, their answers, and the
    background law viewed by us as compelling those answers
    appears below.
    In summary form: We are of the opinion that one of
    the vouchers represents an expenditure for which payment
    may be made, and that the other two vouchers may not be
    lawfully paid. We are also of the opinion that the Fed-
    eral Court in Johnson v. Bullock neither intended nor
    attempted to confer upon the Secretary of State, Mr.
    Bullock, any power additional to that conferred upon him
    by state statute, and that Article 5.05, subdivisions
    la(5) and (81, is constitutional (though no public funds
    are availbable for hiring deputies for conduct of absen-
    tee voting in primary elections.)
    Nominees of the major political parties in Texas for
    all major offices are required by statute to be nominated
    by primary elections.   Texas Election Code, Art. 13.02.
    This has been true since 1905. Acts 29th Leg., 1st C.S.,
    1905, ch. 11, sec. 117, p. 549. The plan chosen by the
    state legislature for financing primary elections cannot
    be used this election year. Johnson v. 
    Bullock, supra
    .
    This plan required substantially all the expenses of the
    primary elections to be borne by the candidates.    Filing
    fee assessments had grown to the exent that a Federal
    Court found them unconstitutional.   Johnson v. Bullock,
    %S!Ei~  Carter v. Dies,  
    321 F. Supp. 1358
    (N.D. Tex. 1970).
    Now primaries are required, but the question remains, how
    -5216-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 3   (M-1068)
    shall they be funded? At least two answers are possible.
    Either the political parties may pay, or the state may pay,
    if permissible under law for it to do so. The legislature
    might choose a scheme placing parts of the cost on both.
    We are not concerned with the first possibility except to
    observe that it might be desirable for the legislature to
    have opportunity to make a choice regarding it. We are
    here concerned only with the latter possibility, the use of
    state funds.
    Three questions must be considered in discussing the
    possible use of state funds.
    (1)   Can state funds be used at all?
    (2) Is there existing law to authorize use of state
    funds?
    (3) Is there any appropriation of state funds for
    primary election expenses?
    (1) Can state funds be used at all? The answer to
    this question turns on whether or not primary elections
    are conducted for a public purpose within the meaning of
    Section III, Article 8, Texas Constitution.  Waples v.
    Marrast, 
    108 Tex. 5
    , 
    184 S.W. 180
    (1916). It was there
    held that expenditure of state funds for a presidential
    preference primary was not an expenditure for a public pur-
    pose. If the expenditure is not for a public purpose, it
    is a grant of public monies to private interests, and vio-
    lative of the Texas Constitution, Article III, Sec. 51.
    [Article III, Sec. 52, makes the same prohibition appli-
    cable to counties and other political subdivisions of the
    state].
    The question posed in 
    Waples, 184 S.W. at 183
    was:
    "Is the thing to be furnished by the appropria-
    tion of the public revenue something which it is
    the duty of the State, as a government, to provide?"
    Waples v. Mar:rast recognized that it was valid for the
    state to ret-primary      elections and that it was valid
    for the state to regulate those elections.   In Beene v.
    Waples, 
    108 Tex. 140
    , 
    187 S.W. 191
    , 193 (1916) the Texas
    Supreme Court held that the state could not pay election
    -5217-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 4   (M-1068)
    officers for services rendered in conducting a second Dem-
    ocratic Primary for United States Senator. Whether these
    holdings stand as a bar to state expenditure at this time
    is subject to considerable doubt. In 1916 the State was
    much smaller, expenses of elections less, and constitutional
    requirements less refined. It is conceivable that if the
    legislature could permissibly require primary elections
    in 1916 as the most desirable means of insuring purity of
    the nominative process, the legislature could in 1972 val-
    idly determine that population increases, greater election
    costs, and the development of the primary election process
    over the last 67 years (since 1905) into an integral part
    of the state elective process, now require that the state
    furnish primaries to the people as a public service. We
    believe such a legislative determination would be upheld
    by the courts of this state. We could not, however, and
    do not, advise a course of conduct contravening the rule
    laid down in the Waples cases, unless and until those cases
    have been distinguished or overruled. We do not consider
    it sound to ignore stare decisis in a matter of such great
    public importance, particularly where, as here, necessity
    for so doing is doubtful.
    The Federal District Court has retained jurisdiction
    in Johnston v. 
    Bullock, supra
    , to consider any problems
    arising out of compliance with its order. It has also
    used a proper restraint in attempting to intrude into areas
    of state law only so much as is absolutely necessary for
    constitutional reasons. Nor would it be necessary now for
    the Federal Court to decide state law in solving the pre-
    sent dilemma. The test of Waples is public purpose. The
    requirements of the Federal Constitution are supreme. In-
    deed, the oath of office of every member of the Texas Leg-
    islature and all officers of state government requires the
    best ability of each to preserve, protect and defend the
    Constitution and the laws of the United States. Texas Con-
    stitution, Art. XVI, Sec. 1. Primary elections in Texas
    have been considered purely political party functions by
    the United States Supreme Court as recently as Grovey v.
    Townsend, 
    295 U.S. 45
    (1935). This case was expressly
    overruled by Smith v. Allright., 
    321 U.S. 649
    (1944) hold-
    ing that party primaries in Texas had become such an in-
    tegral part of the state elective process that they constitute
    state action. The two cases taken together demonstrate
    constitutional evolution and refinement.
    -5218-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 5   (M-1068)
    A public purpose may be defined in terms of
    . _.federal
    law as well as state law, and what may be a public purpose
    under federal law is not necessarily limited to what may
    be defined as a public purpose under state law (though,
    as indicated, we doubt the two would differ in this in-
    stance.) If primary elections are for a public purpose
    within a federal definition more refined now than in 1916
    or 1935, they are we believe, for a public purpose under
    the Texas Constitution and Waples. We believe the Federal
    Court should be requested to clarify this point. We at-
    tempt to act as attorney for the state agencies in these
    matters and therefore will await your request for such
    action, just as any attorney would await his client's au-
    thorization prior to action.
    (2) Is there existing law to authorize use of state
    funds? Section 6 of Article VIII of the Constitution of
    Texas provides that no money shall be drawn from the Trea-
    sury but in pursuance of specific appropriations made by
    law. Manion v. Lockhart, 
    131 Tex. 175
    , 
    114 S.W.2d 216
    (1938); Texas Department of Public Safety v. Morris, 
    426 S.W.2d 290
    (Tex.Civ.App., 1968, revd. on other gds., 
    436 S.W. 2d
    124); Pickle v. Finley 
    91 Tex. 484
    , 
    44 S.W. 480
    (1898);
    Lightfoot v. Lane, 104 Te:. 447, 
    140 S.W. 89
    (1911).
    It is settled as the law of this state that under the
    provisions of Section 44 of Article III of the Constitution
    of Texas, the legislature is prohibited from appropriating
    state money unless at the very time the appropriation is
    made, there is already in force some pre-existing valid
    law authorizing the appropriation.  Fort Worth Cavalry
    Club v. Sheppard, 
    125 Tex. 339
    , 
    83 S.W.2d 660
    (1935);
    Austin National Bank v. Sheppard, 
    125 Tex. 272
    , 
    71 S.W.2d 242
    (1934); State v. Steck, 
    236 S.W.2d 866
    (Tex.Civ.App.
    1951, error ref..); State v. Connecticut General Life
    Insurance Co., 382 S.W.Zd 745 (Tex.Sup. 1964).
    At the time the current General Appropriation Act
    was passed there was no valid pre-existing-law enacted by
    the legislature authorizing cost of primary elections to
    be paid by the state. On the contrary, the pre-existing
    law provided for a contrary method of funding primary
    elections.
    (3) IS there any appropriation of state funds for
    primary election expenses?  The legislature has made no
    -5219-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 6   (M-1068)
    attempt whatsoever to make any appropriation to pay costs
    in orimarv elections.    On the contrarv. as noted above.
    the-costs-of holding primary elections.prior to Johnson
    v. 
    Bullock, supra
    , was borne by the candidates through
    'filing fee assessments.
    Section 6 of Article VIII of the Constitution   of
    Texas specifically prohibits any money from being with-
    drawn from the state treasury in the absence of an
    appropriation by the legislature.  Manion v. 
    Lockhart, supra
    ; Texas Department of Public Safety v. Morris,  w;
    Pickle v. Finley, supra; Lightfoot v. 
    Lane, supra
    . Since
    no item of appropriation to pay costs for holding primary
    elections was passed by the legislature, no money can be
    withdrawn from the treasury for that purpose. Since the
    plan for financing primary elections at the time the
    final Appropriation Act was enacted was through filing
    fee assessments, no rider in the Appropriation Bill
    could be construed as authorizing this expense to be borne
    by the state.
    Furthermore, only the legislature is authorized to
    make an appropriation.   Any rider attempting to authorize
    the Governor to make an appropriation would constitute an
    unlawful delegation of legislative power in violation of
    Article II, Section 1 of the Constitution of Texas. The
    situation is different from one in which the legislature
    has appropriated money for a specific purpose and the
    amount, due to an extraordinary circumstance, proves
    insufficient.  The Governor is appropriated funds to pro-
    vide for the latter situation.  But the legislature has
    made the prior law and appropriated money for the chosen
    purpose.
    In view of the foregoing, it is our opinion that
    there is no existing appropriation of state funds that
    may be used to pay expenses for primary elections.
    It is our opinion that in the absence of a judicial
    determination that the state is authorized to pay costs
    of holding primary elections, the officials of this state
    are bound by the construction of the Texas Constitution
    made by the Supreme Court of Texas in Waples v. 
    Marrast, supra
    , and Beene v. 
    Waples, supra
    . There is no valid
    pre-existing law authorizing an appropriation to pay
    -5220-
    .
    Hon. Robert S. Calvert, Bon. Bob Bullock, page 7   (M-1068)
    such costs. In the event a judicial determination were
    made that the state is able to pay costs in primary
    elections, it would still be necessary for the legisla-
    ture to meet and adopt a plan for state held primary
    elections and pass an appropriation bill in order for funds
    to be withdrawn from the State Treasury.
    Your specific questions are answered as follows:
    Voucher No. 284 appears to be an item of state
    expense and not a cost of conducting primary elections.
    Article 1.03 of the Election Code provides:
    "Subdivision 1. The Secretary of State
    shall be the chief election officer of this
    state, and it shall be his responsibility to
    obtain and maintain uniformity in the applica-
    tion, operation and interpretation of the
    election laws. In carrying out this respon-
    sibility, he shall cause to be prepared and
    distributed to each county judge, county tax
    assessor-collector, and county clerk, and
    to each county chairman of a political party
    which is required to hold primary elections,
    detailed and comprehensive written directives
    and instructions relating to and based upon
    the election laws as they apply to elections,
    registration of electors and voting procedures
    which by law are under the direction and control of
    of each such respective officer.   Such directives
    and instructions shall include sample forms of
    ballots, papers, documents, records and other
    materials and supplies required by such elec-
    tion laws.    He shall assist and advise all
    election officers of the state with regard
    to the application, operation and interpreta-
    tion of the election laws.
    "Subd. 2. At least thirty days before
    each general election, the Secretary of State
    shall prescribe forms of all blanks necessary
    under this code and shall furnish same to each
    county clerk. The Secretary of State shall at
    the same time certify to each county clerk a
    -5221-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 8     (M-1068)
    list of all the candidates who have been nom-
    inated for state and district offices and all
    other candidates whose names have been certi-
    fied to the Secretary of State to be placed
    on the general election ballot."
    Item 8 of the appropriation to the Secretary of State
    is an appropriation by the legislature to pay costs of items
    specified in Article 1.03. If we are correct in our assump-
    tion that Voucher No, 284 is for sample forms authorized
    by the provisions of Article 1.03, it is our opinion the
    expense may be paid out of the appropriation contained in
    Item 8 of the appropriation to the Secretary of State's
    Office. We do not pass on the question whether the par-
    ticular voucher is in sufficient form for the Comptroller
    to determine whether the item of expense is one contemplated
    by Article l-03 of the Election Code.
    Vouchers No. 282 and No. 283 are obviously expenses
    incurred in the conduct of a primary election for which
    there is no appropriation made. You are accordingly
    advised that these vouchers may not be paid.
    While there is no appropriation for payment for post-
    age stamps purchased by a County Democratic Executive
    Committee, even if there were, Voucher No. 282 is not in
    compliance with Section 42 of Article V of the current
    General Appropriation Bill. Furthermore, it does not
    appear that there has been compliance with the procedure
    for obtaining printed material prescribed by Section 21
    of Article XVI, Texas Constitution.  See State v. 
    Steck, supra
    .
    Having considered the three questions discussed
    above, we move on to consideration of whether the order
    of the court in Johnson v. 
    Bullock, supra
    , confers on
    the Secretary of State, Mr. Bullock, any authority addition-
    al to that conferred upon him by the Texas Election Code.
    Whether the Federal Court could do this seems to us not
    at issue, because it seems obvious the Federal Court has
    not done it. In its original order, the Federal Court
    ordered the County and State Executive Committees to make
    rules for the primary elections as are necessary and con-
    sistent with Carter v. 
    Dies, supra
    . Johnson v. 
    Bullock, supra
    , The Court, apparently through inadvertence, had
    -5222-
    .
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 9   (M-1068)
    overlooked the fact that the Secretary of State is given
    a supervisory duty in making rules and regulations to
    insure uniformity in the application of the election
    laws. As amended by its order of 2 February 1972, the
    Order now reads:
    "The County and State Executive Committees
    are directed to make such rules for the primary
    elections for 1972 as are necessary and consist-
    ent with Carter v. 
    Dies, supra
    .
    "The Secretary of State is likewise hereby
    authorized to make such rules and regulations
    and to take such other action as may be neces-
    sary to effectuate this order and for the uni-
    form operation of primary elections consistent
    with Carter v. Dies.
    "The Court retains jurisdiction to con-
    sider any problems arising out of compliance
    with this Order."
    We feel it would come as a distinct surprise to the
    Federal Court if this order were to be taken as authority
    for the Secretary of State to choose how primary elections
    are to be funded in Texas, or as authority for him to
    expend funds from the state treasury without either legis-
    lative authorization or appropriation.  The Federal Court
    has done nothing in disrespect of the doctrine of separation
    of powers recognized by both state and federal constitutions.
    We do not impugn to it any such motive. Nor can we perceive
    any legal basis on which the Secretary of State, Mr. Bull-
    ock, a member of the executive branch of government, [Texas
    Constitution, Article IV, Sec. 1,l could be conceived to be
    empowered to exercise legislative powers in the place of
    the Texas Legislature.  Indeed, such a conception of power
    is wholly antagonistic to the Texas Constitution, Article
    II, Sec. 1.
    We do not believe that the Court's Order of 4 February
    1972, denying plaintiffs' motion to set aside filing fees
    set by the Secretary of State, unless approved by the
    Court upon notice and hearing, is any indication of Court
    intent contrary to the above. The Court originally stated
    that reasonable fees, related to legitimate state interest,
    -5223-
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 10    (M-1068)
    would be permissible, and apparently the Court has found
    nothing in the fee schedule promulgated by the Secretary
    to be so unreasonable as to require invalidation.    The
    plaintiffs raised no question concerning the power of the
    Secretary of State to promulgate a fee schedule, nor any
    questions relating to whether requirements of due process
    were honored in its implementation.   The plaintiffs appar-
    ently assumed the Secretary could promulgate and enforce
    some fee schedule. To assume that the Court's denial of
    plaintiffs' motion constituted a ruling on some of the
    most serious questions possible under our form of govern-
    ment; whether an appointed member of the executive branch
    of government may substitute himself for the duly elected
    representatives of the people in this exercise of legis-
    lative power; is totally unwarranted.   In fact, any
    assumption that the Court would give cavalier treatment
    to such an important matter does discredit to the Court.
    In our opinion, the power of the Secretary of State,
    Mr. Bullock, remains the same as that given him under
    state law, modified only to comply with Carter v. Dies --
    and Carter v. Dies manifestly makes no attempt to substitute
    Mr. Bullock for the Texas Legislature.
    We turn now to the question whether Texas Election
    Code, Article 5.05, Subdivisions la(S) and (8) is con-
    stitutional.  It is there provided:
    "(5) Primary elections.   In primary
    elections held by political parties for
    nominating candidates to be voted on at gen-
    eral and special elections held at the expen-
    se of the county, the absentee voting shall
    be conducted by the County Clerk. In primary
    elections for nominating candidates for city
    offices, the absentee voting shall be con-
    ducted by the city secretary or city clerk.
    II
    . . . .
    ,I
    . . . .
    "(8) Compensation of clerk for absentee
    voting. Neither the County Clerk nor the city
    secretary or city clerk shall receive any addi-
    tional compensation for performing the duties
    -5224-
    .
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 11   (M-1068)
    devolving upon him under this Section, but
    additional deputies necessitated thereby may
    be appointed and compensated under the General
    Law pertaining to appointment of deputies.
    Except as herein required or expressly authorized,
    the County Clerk shall not conduct absentee
    voting in any election.  In all elections
    where some person other than the County Clerk
    or city secretary or city clerk conducts the
    absentee voting#the authority calling the
    election shall fix the compensation of such
    person and his deputies, if any, which shall
    be paid out of the same fund as other expenses
    of the election are paid. Employees of the
    authority calling the election or employees
    of any political subdivision of the State which
    is affected by the election, with the permis-
    sion of its governing board, may be appointed
    to serve as clerk or deputy,clerk for absentee
    voting without additional compensation."
    We believe that to some extent this statute is ambiguous.
    It is unclear whether deputies hired to assist with the con-
    duct of absentee voting in primary elections were intended
    to be paid from county or city funds, or from funds col-
    lected by assessment of fees against primary candidates.
    We believe the latter was the legislative intent for two
    reasons. First, such an intent is in keeping with the
    general scheme chosen by the legislature for funding
    primaries, and second, because the former construction
    would contravene the law as interpreted in Waples v.
    
    Beene, supra
    . In fact, Waples v. Beene considers an
    almost identical question of statutorv construction and
    holds that given two possible constructions, only one of
    which is constitutional, the one constitutional is to be
    chosen. Use of public money to pay the deputy clerks
    contemplated by the above statute, is presently
    impermissible.
    Only the Texas Legislature has power to provide for
    state conduct of primary elections, and only the legislature
    has power to appropriate money for that purpose.  If the
    state is to pay for primary elections, it will be neces-
    sary for the legislature to act, and if action by the leg-
    islature is to be effective, it must be completed before
    -5225-
    . .   .
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 12   (M-1068)
    any expenditures are made or contracted for. There must
    be prior law to support any payments from the state
    treasury.
    In light of the fact that Mr. Bullock has requested
    we not represent his office in this matter, we suggest
    that we be authorized to request the Federal Court to
    use its pending jurisdiction to decide whether conduct
    of primary elections is a public function required of
    the state. At the same time, we would request that the
    Court make some determination of the other questions
    considered in this opinion. While they present matters
    of state law, there is serious question whether there is
    a present means to place them immediately before the Texas
    Supreme Court. Original jurisdiction of the Texas Supreme
    Court is limited, and that court does not render advisory
    opinions.  Neither do federal courts render advisory opin-
    ions, but the Federal Court having jurisdiction in this case,
    would, we feel, furnish necessary clarification concerning
    the thrust of its orders.
    We believe it desirable to have a court decision as
    soon as possible, so that the Governor may, if possible,
    be assured, whether the legislature must be called. We
    are confident the Governor will give proper consideration
    to, and take proper action in, this extraordinary situa-
    tion. It is our opinion that a court decision is needed
    before the state may confidently fund primary elections.
    It is our opinion that a special session of the legislature
    is required in order to authorize the state to assume the
    costs of primary elections.
    Because of the extraordinary circumstances of this
    matter, we are furnishing this opinion to each member
    of the Federal Courts.
    SUMMARY
    The vouchers presented to the Comptroller
    of Public Accounts for costs of primary elec-
    tions may not be legally paid. The Texas
    Election Code, Article 5.05, Subdivisions la(5)
    and (8) is constitutional, though funding for
    payment of deputies from public funds for con-
    ducting absentee primary voting is lacking.
    -5226-
    .   . . .
    Hon. Robert S. Calvert, Hon. Bob Bullock, page 13    (M-1068)
    Other vouchers may be paid only where there
    is pre-existing authorization and appropria-
    tion of funds. Only the legislature may
    choose for the state to fund primary elec-
    tions. Only the legislature may appropriate
    funds for that purpose. Court clarification
    of whether funding of primary elections is
    an expenditure for a public purpose is needed
    at once,and recommended by this office.
    .,37
    Your's very truly,
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    J. C. Davis
    Rex White
    John Reeves
    Wardlow Lane
    SAMUEL D. MCDANIEL
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
    -5227-