            TaE   ATTORNEY    GENE-
                     OF TEXAS




                                      April 18, 1939

Hon. Tom F. Coleman, Jr.
County Attorney
hngellna County
ILIfkin,Texas
Dear Sir:                  OpinioriNo. O-610                    .,
                       RIS:     May the Commisslone~s Court Of
                                Angelina County legally pay
                                                        p&g for all
                                the DrorJeFexDeI1sesincui‘rea~
                                                    lncui‘rd in
                                the gpecial eiectlon hela under-
                                the authority of Articl&, 1133 CmI-
                                1134, Revised CiirilSt&td%s,‘1925,
                                for the incorporation of the city
                                of Huntington?
          Your re@iest dated April 5, 1939 for ari"oplnlonfrbm'
the Lttorney General on the following question, has been received:
          '(*l l As to whettieror not.'theC&nmFs-
    &lion&G CoUrt of Angelina County can~~legally..
    pay~all proper expenses Incurred in the special
    election held.under the authority of Articles
    1133 and 1134, Vernon's Revised Civil Statutes,
  '~for the incorporation ofthe city of Huntington."
          Articles 1133 and 1$3&,~'R.C.S.,1925
    referred to in your request, are set out in full:
           "ArtWle 1133.  &'&    Incorporated.
          When a town or village may cbntain
    in6tie
         than four hundredsand less than'.tenthoti-
    sand Inhabittints,it may.~beIncorporated as a
    totlnor village In the manner prescribed in this
    chapter."
          "Article 1134."'Mode of incorworation. ^
          If the lnhabltan~f?ui:h    toijnor village
    desire to be so 1ncorporated;at l‘easttwenty
    tiesldentsthereof, who would be'quallfl& voters
    i&d&r the"provlslons of this chapter, shall file
    en application for that purpose in the ofcice of.
    the'.couhtyjudge.of the county In which the town
    or:village is situated, stating.the'~boundarles.of
    the proposed town or vlllage, the n&tieby which
Hon. Tom F. Coleman, Jr., .April 18, 1939, page 2     0-610


    it is to be known when incorporated, and accom-
    pany the same with a plat of the proposed town
    or'vlllage Including therein no territory except
    that which is Intended to be used for strictly
    town purposes. If any.town or village be situ-
    ated on both 'sidesof a line dividing two counties,
    application may be maae^to the county"judge'or
    either county In which a portion of said town
    or village is located, in mannei?and form as here-
    in providea. A new'election shall not be ordered
    in less than one year."
          The election provided for in the two articles above
quoted is undoubtedly a special election.
          9 RULING'CASE   LAW. p. 978
            "Any election which Is not regularly
    held for the electloncf officers or for some
    other"purpose.which shall come before the Alec-
    tors at regular fixed intervals Is a special elec-
    tion. ,It.Lsopposed fin irieaning more particularly
    to regular than to general elections, and so
    where elections are ~classifledas"genera1 and
    special, a regular annual municipal election can-
    not be-included in the latter class, but must
    be'treated as a general election. l +',* Where
    the constitution provides for the organization of
    a city under general laws .'whenevera xc&jority-'
    of the electors voting at a general election shall
    So determine' the election to decide the ques-
    tion IS, still a special election although decided
    at a general electlon,"and a statute providing for
    the calling of a special election to determine
    the question Is not lnconslstent with the con-
    stItutlona1 r,equirement,and this is true notwith-
    standing the fact that the special election is to
    be held on the same day as the general election.
    The use of the word 'special' in such a case is
   ,surplusage, as the election not being a regular
    ge;uzr;y,,one could not be other than special.

    2O'CORPUS JURIS, D. 56
         ~"A special election lsone provided for
    by law,under special circumstances. It is an
    election held to supply a vacancy in office be-
    fore the expiration of the'full term for which
    the incumbent was elected, noran election at
Hon. Tom F. Coleman, Jr.,   April 18,   1939, page 3   0-610



    which some question or proposition is submitted
    to the vote of the qualified electors, or an elec-
    tion for someparticular emergency. + * l +'I
          The county judge has charge of the details of the
election for the purpose of determining whether or not a town
or village containing more than four hundred and less than ten
thousand inhabitants Is to be incorporated and is empowered to
apbolnt the necessary election officers by Article 1136, which
reads as follows:
          "Article 1136.  Election order
          If satisfactory proof is made that the
    town or vlllage.contains the requisite number of
    Inhabitants, the county judge shall make an order
    for holding an election on a day therein stated
    and at a place designated with in the town or s
    village for the purpose of submitting the question~,~
    to a vote of the people. He shall appoint an offi-
    cer to preside at the election, who shall select
    two judges and two clerks to assist in holding It.
    After a previous notice of ten,dayS, by posting
    advertisement thereof at three public places In
    the town or village, the election shall be held
    in the manner prescribed for holding elections
    in other cases."
          In view of the fact that the election for the incorpor-
atlon of the city of HUntington was a special election, hrticle
29% is applicable. It provides for expenses for election sup-
plies and reads as follows:
          "Article 2996.  ExDenses for election
    SUDDlieS. All expenses incurred In providing
    voting booths, stationery, official ballots,
    wooden or rubber stamps, tally sheets, polling
    lists, instruction cards, ballot boxes, envel-
    opes,,sealing wax and all other supplies re-
    quired for conducting a general or sp,ecialelec-
    tion shall be paid for by the county, except the
    cost of supplying booths for cities. All accounts
    for supplies furnished or services rendered
    shall first be approved by the Commissioners court,
    except th8 accounts for voting booths for Cities.!'
          According to the provisions of said article, all ex-
penses connected with the mechanism of a special election for
the purpose of incorporating a city within the population rang8
of four hundred ~to ten thousand inhabitants shall be paid for
by th8 county within which it Is situated.
Hon. Tom F. Coleman, Jr., April 18,   1939, page 4   0-610



          Article 2943, R.C.S. of 1925, as amended by Acts of
the 45th Legislature, p. 591, Chapter 295, par. 1, 1937, sets
forth the scale of compensation for judges and clerks of both
general and special elections. It stipulates that payment shall
be made by the county treasurer of the county where the elec-
tion is held upon order of the Commissioners Court. We quote
the statute as amended:
         "Article 2943. Pay of judges and clerks.
   Judges and Clerks of general and special elections
   shall be paid Three Dollars ($3) a aas each. and
   Thirty (36) Uents per hour each-for any time in
   excess of a day's.work as herein defined; provided
   that in all counties having a population in excess
   of thrreehundred and fifty-five thousand (355,000)
   inhabitants, according to the last preceding or
   any future Federal Census, such Judges~and Clerks
   shall be aid Five Dollars ($5) a day each and
   Fifty (5Op Cents per hour each for any timi in ex-
   cess of a day's,work as herein defined. The hag8
   who delivers the returns 'of election immediately
   after the votes have been counted shall be paid
   Two Dollars ($2) for that service, provided the :
   polling place of his precinct Is at least two (2)
   miles from the courthouse, and provided also he
   shall make returns -of all election supplies not
   used when he makes return'of the'election. Ten
   (10) working hcurs shall be.consider&d a day with-
   in the meaning,of this Article. .The compensation
   of Judges and Clerks of general and special elec-
   tions shall be paid by the County Treasurer of the
   county where such services are rendered upon order
   of the Commissioners Court of such county."
          Since an election.for the incorporation of a city
within the four hundred to’ten thousand population range is a
special election, and since articles 2996 and 2943 provide for
payment of expenses of materials and services used In such special
election by the county, it is our opinion that there Is statutory
authorization for the payment of the expenses of the election for
the incorporation of the city of Huntington by the county of
Angelina.
          We have noted Article 2997, R.C.S. which says that "The
expense of all city elections shall be paid by the city in which
same are held." It is our opinion that this article does not
govern the situation of a special election under the supervision
of county authorities where the question of incorporation it-
self is being voted upon by the citizens of a given area within
the county. In this case the area to b8 incorporated, subsequent-
ly the city of Huntington, ,was not a city within the purview of
Hon. Tom F. Coleman, Jr., April 18,    1939, page 5     O-610


Article 2997 prior to the time of the election. Article 2997
is applicable to municipal elections only, and the city of Hunt-
ington was not subject to the provisions of said article,until
after the incorporation election.
          The expenses incurred in the election held for the
purpose of incorporating the city of Huntington were Incurred by
the county under articles 1133, 1134 and 1136, R.C.S., 1925.
          We hold, therefore, that Articles 2943 and 2996 are
controlling and that the county of Angelina may legally pay all
proper expenses incurred in the special election held under the
authority of Articles 1133 and 1134, R.C.S., 1925, for the ln-
corporation of the city of Huntington.
            Trusting   that the above fully answers your inquiry,
we are
                                    Yours very truly
                                ATTORNEY GRNRRAL OF TEXAS

                                    By s/Dick Stout
                                          Dick Stout
                                          Assistant
DS:omb:wc
APPROVED:
s/Gerald C. Mann          "
h!PTOFtNEY
         GENERALOF     TEXAS
