Untitled Texas Attorney General Opinion ( 1974 )

The Honorable Jim Clark Opinion No. H- 394
Chairman, Committee on Labor
House of Representatives Re: Construction of Sec. 27a,
P. 0. Box 2910 Art. l269m. V. T. C. S.
Austin, Texas 78767 the Fir&men’s and Police-
men’s. Civil Sefvice Act.,
Dear Representative Clark:
You have requested an opinion interpreting provisions of Art. 1269m.
Sec. 27(a), V. T. C.S., specifically, the following passage:
. . . Upon receiving a petition signed by qualified
voters in said city in number not less than ten per
cent (10%) of the total number voting in the last
preceding municipal election, the governing body
of said city shall -call an election within sixty (60)
days after said petition has been fi,led with governing
body. . . . (Emphasis added)
You ask:
1. Does the passage mean that a date and place for
the election must be set wi,thin sixty (60) days after
the petition has been submif:ted to the governing body
of the city, or that the election be held within sixty
(60) days after submission?
2. If the passage cbnnotes the former rather than
the latter, is there a time li,mit for holding the election,
or ca.n the governing body set the date and place for the
election for any time in the future?
Your first question turns on t:he me;lning of: the word “calls” when used
in the context of Art. 12h9rn, Sec. 27(a). V. T. C.S. Black’s L,aw Dicti,onary
-
(4th Ed. 1951) defines “calling an c:lrction” as:
The Honorable Jim Clark, page 2 (H-394)
[clommonly cowtrued as including, or as being
synonymous wi,th. the giving of noti,ce of the
election.
If the call for an election i.ncl,udes the holding of it, the statute will
clearly require an election to ‘be held “within sixty days.” However, if
the call is synonymous with the giving of notice no statutory mandate to
hold an election wit:hin sixty days resuI.ts from Art. 12h?m, Sec. 27(a).
V. T. CS.
No Texas authority explicitly construing the meaning of the phrase
“call an election” has been found. Other jurisdictions have con.sistently
construed “calling an election” to mean giving notice of an’election.
State V. Hall, 144 P. 475, 478 (Ore. 1914); People V. Gou&, 103 N. E.
685, 686 (Ill. 1913),
It is clear from an examination of Art. 4.11, Election Code, V. T. C. S.,
that this construction of the phrase has been used ‘by t.hf Texas Legislature.
Art. 4.11 provides:
. . . In event no candidate receives a majority,
* < . t:he Governor :iha!,l. witbin fi 1.” (5) days after
the resul.ts of the eleciion are offici,aUy declared,
call a second election to be held on a specified day
which shall btd not lees than thirty (3O)nor more than
for~ty (40) day,> after the date of the prc,ci.amation or
order calling the elec:tion. . . .
This Act provides that the “call” be made within five days but explicitly
forbids the elecr;ion to be “held” wif,hin that period. “Calling an election, ”
then,does not el;compass the holding of t.he electi,on. These cases dis-
tinguish between call.irb,g and holding eI.evtions: Gl~ass V. Smith, 244 S. W. Zd
645 (Tex. 1951); Wolf
----_-- v. Pe& 414 S. W. Zd 539-(Tex. Civ. App., Fort Worth
1967, no writ): g344 S. W. 2d 743 (T~ex. Civ. App.,
Eastland 1961., wr~i!~ ref., r.. r. e, ): __---__
Nrwicn Coun,f:y ---Water Sup&r- Dist. v. Bean,
320 S. W. 2d 158 (Teu. Ciu. App., Arlr”n 1959. writ ref’d., n. r. E. ). It is
our opinion that tlr+, nwar’?ng ~)f thf- $1 rasI in Texas is identical, to that COT.>-
manly in use outside t,h-;.s jurlsd’l,ct.:LIn. ItI Texas the “cal.l.ing” of an ele<:tion
is synonymous 4th t:he giv-Y!r:g af n$~stice uf’ it. to t.he voters.
.
The Honorable’ Jim Clark, page 3 (H-394)
Subdivision 1 of Art. 4.05, Kl,ection Code, V. T. C. S., stipulates
how notice of an election is to be gi,ven. Subdivision 2 of Art. 4. 05,
Election Code, V. ‘I’. C. S., provides in pertinent part:
The notice of each . . . special el.ection shall state
the nature and date of thr election, the hours during
which the poll,s wi1.l be open anti the location of the
polling pla,ce or places. . . a
Thus the procedure for “calli,ng an election” requires not only that
a date and place for the election be set, but also that such informntion
be made available to the voters pursuant to Subdivision 1 of Art. 4. 05.
It is our opinion that Art. 126Ym, Sec. 27(a), V. T. C. S., requires
this procedure to be completed within sixty days of the fil.ing of a
properly submiRed petition.
In answer to your second question. it is our opinion that an election
called pursuant to Art. 126Ym, Sec. 27(a), V. T. C.S., must be held
within a reasonable time after the call.
Time is an essential element of a valid election.
The time for holding an election must be fixed in
advance either by law or !,)y the officer or officers
empowered by law to designate the time, and when
no speci.al length of i:imt: is required it must be a
reasonable ti,rne. 29 C. J.S. El~ections
- Sec. 77.
See also Countz v. Mitch&, 38 S. W. 2d 770 (Tex. Comm. App. 1531);
Edwards- 256 S. W. 2d 4’70 (Tes. Civ. App., Fort Worth 1953,
writ dism. ); St~ai~e V. Self, I,91 S. 511.2~1 75h (Trw. Civ. App. , San Antonio
1945, no wril:).
.
e
The Honorable Jim Clark, page 4 (H-394)
SUMMARY
Article 1269m, Sec. 27(a), V. T. C. S., requires that
a date and place for the election be set and notice of
such date and place be given within sixty days after sub-
mission of a valid petition. The actual holding of an
election called pursuant to Art. 126Yn1, Sec. 27(a), must
take place within a reasonable time thereafter.
Very truly yours,
Attorney General of Texas
LA PY’F. YO K,%rst A sistant
Yi2LkpL
DAVID M. KENDALL, Chairman
Opini.on Committee
p. 1847