Untitled Texas Attorney General Opinion ( 1944 )

ORNEY GENER:AB,
Honorable T. D. Sansing opinion NO. 0-5807
County Attorney Re: Procedure to be followed when
Hansford county there is a tie in an independent
Spearman, Texas school district election.
Dear Sir:
Your opinion request of April 4, 1944, reads in part as follows:
"At a recent;election held by the Morse Independent School
District in Hansford County, Texas, two of the candidates for
trustee tied. Three were in the race. From some reason or
other only one was to be elected. I have checked statutes and
have been unable to find a solution to this problem. It is my
opinion, after discussing the matter with our district judge,
that another election should be called for the purpose of
electing trustee and that this election should be one where
anyone who might desire could enter the race. There is some
doubt in my mind as to whether or not such election should be
one wherein the ,twowho tied should run the tie-off, rather
than one where anyone might run, as above set out. It strikes
me, however, that this election is and should be of a general
nature and not restricted to the two who tied.
"I am not completely satisfied about the matter, and I
respectfully request that your office render me an opinion on
same at the earliest possible time . . s . II
Your letter does not inform us &the number of scholastics
contained in the Morse Independent School District, and we have been
unable to obtain this information from the sources immediately available
to US. However, in order to make an immediate reply to your request,
we are assuming that the District contains fewer than five hundred
scholastics, and this Opinion is predicated upon such assumption. If
we be mistaken in this assumption, we shall be pleased to render a new
Opinion upon this subject upon receipt of information as to the actual
number of scholastics in the District.
Article 27&a, V.A.C.S., provides as follows:
Honw~ble T. Il.Sansing, page 2 (0-580'~)
"All of the ballots for the election of a s&ool. +xus-
tee in cotmnonschool distri.ct 6 ahd i,nirxI.~?I:crtdon~t
school
districts having fewer than five hundred (500) scholastics
as shovn by the last preceding 8cholastL.ccensus roll ap-
prove.iby the State Ilepart!nen,tof E~%l.~:ationand exrlusive
of tran,sfersshall be printed with black i.m.;i on clear white
paper, of s~afficientthickness to prevent the mark.sthereon
being seen through the paper, and be of uniform style and
dimension; at the top of the ballot ,thereshall be printed
'Official Ballot, _ Indepen.d.entSchool District ',
the number or name of the schocl district in which the elec-
tion is to be 'heldto be filled in by the judge of the county
when he orders the ball,otsprin.te.d.Andyperson desiring to
have,his name placed on 6ai.dofficial ballot, as a candidate
for the offi.ceof trastee of a common school district or of
an independent schoo:Ldi,strictas herei.c. provided shal.1,at
least ten days before 6ai.de!.ectixn,file a written request
with the county judge of the com:ty in wh.ichsaid district
is located, requesting that his name be placed on the offi-
cial ballot, and no candidate shall have his a&me printed on
said ballot unless he has complied with ,theprovisions of
this Act; provided that five or more resident qualified vo-
ters in the district may reqttestthat certain names be printed.
'The county Judge, upon receipt of such written request, and at
least five days 'beforethe election, shall have the ballots
printed as provided in this Act, placing on the ballot the
name of each candidate who has complied with the terms of this
Act, and deliver a sufficient number of printed ballots and
amount of su,ppliesn,ecessaryfor such election to the presid-
ing officer of the election at least one day before said elec-
tion is to be held, said election supplies, ballots, boxes, and
tally sheets to be delivered by th.ecounty judge by mail or in,
any other manner by him deemed best, to the presiding officer
of said elfxtion in sealed envelopes which shall not be opened
'by the e.lect,vatoffi.ceruntil the d.ayof .theelection. The ex-
penses tofprin,tingthe tallots and de1.iveringsame to the pre-
siding offi.cer,together with the other expenses incidental to
said election shall 'be pai.do!:tof the available maintenance
funds belonging to the scho~,ldistrict in which said election
is held, or to be held. The officers of said election shall i?
required to use the ballots so fnrnished'by the colultyjudge as
provided herein. The election officers shall make returns of
said election to the county judge and certify the result in the
same manner as is now required by law, and said ballot boxes
which shall have been furnished by local school official6 +a11
be sent to the county Judge and said election returns ah&be
canvassed by the Commissioners' Court and together with ball&
boxes shall be safely preserved for a period of three months
next after the date of the election."
Honorable T. D. Sansing, page 3 (O-5807)
It will be noticed that this statute~,containsno provisions
governing situations in which an election results in a tie. Consequently,
the problem will be controlled by the general election laws. Shaw v.
Taylor, 146 S.W. (2d) 452, Scherz vO Telfer, 74 S.W. (2d) 327.
With respect to tie votes in elections, the general election
laws provide in Article 2953, V.A.C.S.:
"At any election, if there be an equal number of votes
given to two or more persons for the same office, except
executive offices as provided in the Constitution, and no
one elected thereto, the officer to whom the returns are
made shall declare such election void as to such office
only, and shall immediately order another election to fill
such office; and notice shall be given, and such other
election shall be held in the same manuer as the general
election."
Moreover, the first Section of Article 2953a provides:
"Where special elections are authorized by this Act,
the officer authorized 'bylaw to order elections shall
make such order, fixing the time of the election not less
than twenty nor more than ninety days after the first pub-
lic notice of such order."
In your election there was but one position to be filled, and
two candidates tied for this position, We deem this situation to be
covered by the provisions of the two statutes last above quoted, and you
are respectfully advised that the first election should be declared void
and another election should be ordered. Since the new election is to
"be held in the same manner as the general election", we feel that per-
sons other than the two candidates who tied are at liberty to enter this
election, provided they comply with the applicable provisions of the
law relative to the filing of their candidacies.
In considering this matter we are not unaware of the case of
Beeler v. Loock, 135 S.W. (2d) 644 (error dismissed). We consider this
case to be inapplicable to the instant situation for the reason that
in the facts there birderconsideration seven positions were to be filled,
and it appears that the candidates who tied were among the seven candi-
dates who received the highest number of votes. The action of the court
in refusing to declare the election void and to order a new election
was for the reason that a resolution of the tie was not necessary to
a determination of the seven persons who had received the highest number
of votes and who, therefore, were elected. Thus the court said:
"In the present instance, however, the fact that candi-
dates might receive an equal number of votes, there being
Honorable T. D. Sansing, page 4 (0-5807)
seven places, and not merely one, to fill, could not re-
sult in the election being void merely because two or more
may h8ve received an equal number of votes." (Emphasis
added)
In the situation under consideration, but one position la to
be filled, and such position can be filled only by determining the one
person who received the highest number of votes. This can be done only
by resolving the tie vote, and Articles 29% and 2p53a (1)direct the
manner in which such resolution is to be accomplished.
Trusting that the foregoing satisfactorily answers your inquiry,
we are
Very truly yours
APPROVED APR 11, 1944 ATTORNEY GENERAL OF TEXAS
ISI Gee. P. Blackburn
By /s/ R. Dean Moorhead
Acting ATTORNEY GENERAL OF TEXAS R. Dean Moorhead
Assistant
RDM: ff:lm
APPROVED
OPINION
COMMITTEE
BY /s/ BWB
CHAIRMAN