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):            g<?y of DeLeon                 v,
                                                               ---    Fincher,   344   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
