Untitled Texas Attorney General Opinion ( 1957 )

Am-11 3, 1957 Honorable Zollle Steakley Secretary of State Austin, Texas Opinion No. WW-88 Re: Time within which the returns of the Special Election for United States Senator can be officially canvassed and the winning candidate certified. Dear Mri Steakley: Your request for an opinion of this office reads as follows: 'Your opinion is respectfully requested concerning the time within which the returns of the Special Election for United States Senator to be held on Tuesday, April 2, 1957, can be officially canvassed and the winning candidate certified; together with the date on which the successful candidate can assume the office of United States Senator of Texas (unexpired term), "Articles 8.37, 8.38 and 8.39 of the Election Code would appear to control. Under these statutes the County Judge canvasses the results within 48 hours and certifies to the Secretary of State; on the 17th day after the ele-etion,exclusive of the day of election, and not before, the Secretary of State in the presence of the Gcvernor and Attorney General is directed to open and count the returns of the election, whereupon the Governor executes a certificate of election. "Article 8.44 of the Election Code would appear to apply only to Special Elections for members of the Texas Legislature and to elections to fill vacancies in Congressional Districts." We agree with your conclusion that the election returns in a special election for United States Senator canno?: be canvassed by the Secretary of State until the 17th day after e .., .- -’ . ! the election. Article 8.30 of the Code.provides that the' presiding judges of the election precincts shall forward the returns in general and special elections to the county judge within 36 hours after the vot.eshave been counted, and that the county jud&e shall forward a copy of the returns to the Sezretaly of State within 48 hours after the returns have been canvassed by the commissioners court, Article 8.34 provides that the co.mmissionerscourt shall canvass the returns on the Monday foliowing the election or sooner. Article 8.37 again provides that "in a11 elections for State or district officers, in,nludlngpresidential electors, except members of the Legislature," the county judge.shall forward a copy of the returns to the Secretary of State within 48 hours after the canvass by the commissioners court. Article 8.38 pro- vides that the Secretary of State shall open and count the returns on the 17th day after the election, "and not before." Article 8.39 provides that the Governor shall immediately make ollt,sign and deliver a certificate of election to the person receiving the highest number of votes for the office. Although the office of United States Senator is not, strictly speakrng, 'state office ' we have no hesitancy in holding that these Eensral rdles also apply to that office. An exception to these general rules Is found in Article 8.44 of the Code, which provides for an acceleration of the procedures in special elections for State Representative or State Senator during a legislative session or within 30 days prior to the convening of a session. An amendment to this statute, added in 1951, further provides that "this same pro- zedure shall be followed whenever a vacancy occurs in Congress in any congressional district of this State if Congress is in sessl.on:rl,isto 'Jonvenewithin 30 daxs from the date of the vacancy. - Reference to a vacancy In any congressional distri,ct'limits its appp lization to special elections for United S-;ites &pTzae ntative in the various congressional dis+,r;c:';s, and it has no applicability to a special election for United States Senator. While this language is sufficiently definl.tethat it h'ouldnot permit an extension by constru-tion to include spezlal eX:fions for United States Senator, it may 1 T:nehistorical comment under Article 8.44 of~vernon's Amotated E?.@ztj.onCode, prepared by the Counsel for the EleztiGn Code Commicsicn i.:hTs?h adderlthis provision when it wrote t'ne1951 Ele,?tionCo,3e:, describes the change as the addition of a provision "adopting the same proced?urein the case of a special election for representatives in Congress." be pointed out that there is a reason for the Legislature's having pyovided for accelerating the election procedures for the offices of State Senator, State Representative, and United States Rep-esentative without also providing for an accelera- tion in the case of United States Senator. In case~of a vaoancy In the first three offices, the people are without representation In the legislative body until the vacancy is filled by election, but they are represented in the United States Senate by a Senator appointed In accordance with Article 12.02 of the Code until the office Is filled by _ election. The person elected In the special election held on April 2 will be entitled to receive a certificate of election from the,Governor as soon as the results are canvassed on April lg. Arts. 8.38 and 8.39, Vernon's Election Code. He will be entitled to qualify for the office immediately thereafter and to assume office as soon as he has qualified. Art. 12.02, Vernon's Election Code; U.S. Const., Amend. XVII; 2 U.S.C.A. g$jla, lb, and 36. SUMMARY The Secretary of State should canvass the results of a special election for United States Senator on the 17th day after the election, in accordance with Article 8.38 of Vernon's Texas Election Code. The person elected is entitled to receive a certificate of election as soon as the results are can- vassed, and he is entitled to qualify and assume the office immediately thereafter. Yours very truly, WILL WILSON Attorney General of Texas By````~ Ma K. Wall APPROVED Assistant Opinion Committee H. Grady Chmdler, Chaizmsn Edwin P. Homer Joe Go.Rollins F. C. (Ja&) Goodman