                TXm        ATTOIQNEY            GENERAL

                                OF      TEXAS




Honorable Price Daniel                                 Opinion No, W-728
Governor of Texas
Austin, Texas                                          Re: Whether a special
                                                           election   to fill a
                                                           vacancy in the Legls-
                                                           lature must be called
                                                           within any specified
                                                           time, and related
Dear Qovernor Daniel:                                      questions.
    Your request   for   an opinion     reads as follows:
           “Resignations from the 56th Legislature  have occurred,
    one from a Senatorial    District and two from the Legislative
    Districts.
           “From my study of past occurrences,       it seems to have
    been the practice    not to call special elections        to fill
    such vacancies when another election        or the primary elec-
    tion date Is relatively     close at hand. Section 13 of Article
    III of the Texas Constitution      gives authority     to the Governor
    to Issue writs of election,      further stipulating      that if this
    is not done within twenty days after the vacancies occur, the
    returning officer    of the District     is authorized to order an
    election.   Articles   24, 32 and 32a of the Texas Election Code
    provide several time limitations       for calling    elections,  the
    dates on which elections     are to be held, and the deadline
    for candidates to file for a place on the ballot.
          “I request     your opinion    on the following   questions:
          “1. Under Section 13 of Article     III, is it mandatory
    for the Governor to call special eleotions       to fill vacancies
    in the Legislature   within any specified     time after the date
    on which the vacancy becomes effective?
          “2. Does the Texas Election Code impose any limitation
    on the period of time that may elapse between the issuance
    of a writ of election  by the Governor and the date set for
    the special election?
Honorable     Price    Daniel,    page 2 (WW-728)

            "3. May the special election  be called for the same
     day as other elections    to be held in the district, in-
     cluding separate primary elections,    if such other elec-  ,
     tion dates are more than 90 days after the vacancy is
     effective?”
    Article     III,    Section    13 of the Texas Constitution   provides:
            “When vacancies occur In either House, the Governor,
    or the person exercising     the power of the Governor, shall
    issue writs of election     to fill such vacancies;   and should
    the Governor fail to issue a writ of election       to fill such
    vacancy within twenty days after it occurs,      the returning
    officer   of the district   in which such vacanc,y may have hap-
    pened, shall be authorized to order an election       for that
    purpose. ”
The first   portion of this seotion makes it the duty of the Governor to
call elections    to fill   vacancies In the Legislature, but it does not
expressly prescribe      any specified time within which the eleotion shall
be called.   Whether the last portion of the seotion implies a duty to
call the election    within twenty days after the vacancy occurs must be
answered in the light of the wording of this provision      and of the Gov-
ernorls immunity from compulsory process.
      The early Constitutions      did not contain the provision     authorizing
the returning officer       to call the election   if the Governor ~failed to
do so. This provision       first  appeared in the Constitution    of 1866, and
has been brought forward In subsequent Constitutions,           Obviously,    it
was added in the realization        that, under the rule exempting the Gover-
nor from judicial      process,   there wasno way to oompel him to perform
this duty, and this alternative        authority was given to the returning
officer   in order to provide a method for calling        the eleotion   if the
Governor failed     to act. It is provided that the returning officer            ,. ,:,
“shall be authorized” to order the election          in the event the Governor
fails   to do so within twenty days after the vacancy occurs,          This au-
thorization    is a permissive one: the returning officer        may order the
election    but it is not mandatory that he do so. If it-had been in-
tended to make the calling        of the election mandatory within this peri-
od,of time, the logical        way to achieve that result would have been to
provide that the Governor shall Issue the writs within twenty days
after the vacancy occurs and to place upon the returning officer              a
positive,    enforceable    duty to order the election    If the Governor fails
to do so. Since this was not done, we are of the opinion that the pro-
vision authorizing       but not requiring the returning officer      to call the
election    cannot be taken as a mandate that the election        shall be called
within the twenty-day period.
     Although the Constitution      does not fix any specified   time within
which the Governor is to act, the Legislature       has provided by statute
that any election     to fill   an unexpired term shall be ordered immediate-
ly. The a plicable     portion’of   Section 32 of the Texas;Election   Code
(Article   fi .Og, Vernon’s Election Code) provides as follows:
Honorable     Price   Daniel,   page 3 (w-728)

          “Election   to fill unexpired term. Where vaaanaies
    whiah are to be filled     by election oaaur In a alvil of-
    fice,  an election   shall Immediately be ordered to fill   the
    unexpired term.”
     There is some question as to whether the Legislature              can restrict
a discretionary    power placed In the Governor by the Constitution,              but
we doubt that legislation      prescribing     definite     tlme Intervals   for car-
rying out Section 13 of Article        III would be held unaonstifkutional.         So
in the absence of a court opinion holding Section 32 of the Election
Code unconstitutional,      we advise you that in our oplnlon It Is appli-
cable to this situation.      However, the word “Immediately” Is flexible
when consideredagainst      a particular    situation.      The call should be
issued at the first     reasonable opportunity,         taking Into consideration
the necessity   for filling    a particular     off’lae.    Thus, In the present
situation   where the regular session has already expired,             the defini-
tion of “immediately” In Seation 32 of the Eleation Code would depend
among other things upon the timing of one or more special               sessions.
     While the calling   of a special    session with several districts    un-
represented would not Impair the legality         of a session,  It seems clear
that Section 13 of Article     III of the Constitution      and Section 32 of
the Election Code when taken together place upon the Qovernor the duty
of calling  an election   to fill  vacancies in order that every district
may be represented,    and In view of the basic American doctrine of no
taxation without representation,      this would be espeoially     true if
taxes are to be voted at a special       session.
     Your second question is whether the Texas Eleatlon Code Imposes
any limitation     on the period of time that may elapse between the is-
suance of a writ of election     by the Qovernor and the date set for the
special  election.
      (Preliminarily,     It should be pointed out that the term”writ        of
election”    as used in Article       III, Section 13 of the Constitution    and
in the foregoing       question is equivalent     to the proolamatlon ordering
the election    or the order for the election         under Sections 24 and 32
of the Election       Code, rather than the writ of election       nhiah Is de-
livered to the presiding        officer    of an elect&on precinct   under Sec-
tion 26 of the Election        Code.)
    ‘Ihe following      sections    of the Election       Code are pertinent   to this
question.
    Section     24 (Art.    4.01,   Vernon’s   Election     Code):
          “Notice shall be given to the people of all elections
    for State and district    offlcers,   * l *. Such notices   shall
    be by proclamation   by the ffovernor ordering the eleation,
    not less than thirty-five      (35) days before the election,..
Honorable     Price   Daniel,     page 4 (ww-728)

    Issued     and mailed       to the several       county     judges.“’

    Section     28 (Art.    4.05,       Vernon’s    Election     Code):
           “The county judge shall cause notice of a general          ::‘.F:...
    election   or any special     election   to be published by
    posting notice of election        at each precinct    twenty (20)
    days before the election;        which notice shall state the
    time of holding the election,         the office   to be filled,
    or the question to be voted on; * * *. If a vacancy oa-
    curs In the State Senate or House of Representatives
    during the session of the Legislature,           or within ten (10)
    days before it convenes, then twenty (20) days notice of
    t ip;$pl    election’to   fill    such vacancy shall be sufficient,

    Section     32 (Art.    4.09,       Vernon’s    Election     Code):“’
          “Where special    elections are authorized by this Act,
    the officer   authorized by law to’order    elections shall
    make such order     fixing the time of the election   not less
    than twenty (201 nor more than ninety (90) dajra after the
    first  public notice of such order. * * *”
    Section     32a (Art.       4.10,    Vernon’s    Election     Code):
            “Any person desiring his name to appear upon the
    offfcfal    ballot at any special election   held for the pur-
    pose of fillgng     a vacancy, when no”party primary has been
    held, may do so by presenting his application       to the proper               zL
    authority.    + * *                                     .: .
            “Such application must be ffled not later than thirty
    (30)    days before any such special election,  * * *.’


      ‘Attorney   General’s Opinions O-4690              and O-4905 (1942) held that
this statute applies to special elections                  to fill  vacancies  In the
office    of State Representative    or State            Senator. In discussing   the
earliest     date on which an election   could            be held after a vacancy
occurs9 Attorney General’s Opinion m-46                   (1957). did not take this
statute into acoount, but we are of the                  opinion that, it is appll-
cable to these specfal elections.
    2
     The first  sentence of this statute formerly required posting
of notice thirty days before the election.   This period was’reduced
to twenty days in 1951, and now coincides   with the twenty-day period
which is permitted under the second sentenae.
Honorable   Price   Daniel,   Page 5 NW-728)

      Section 32 requires that the election       be held not less than
twenty nor more than ninety days after the first           public notice of
such order. While Section 24 speaks of the Governor's proclamation
asp "notice * l * to the people,"       It Is quite clear from the other
statutory    provisions    that "first public notice"     In Section 32 means
the date on which the notice of election        is posted, ss,provided     In
Section 28. Section 24 fixes a minimum period of thirty-five            days
between the date of the order and the date of the election,            but It
does not fix a maximum limit on this period.          Section 28 requires
the county judge to cause notice of the election           to be posted at
least twenty days before the date of the election,           but It does not
require that the notice be posted within any given number of days
after he receives       the order. It is seen from these provisions      that
the Election Code does not fix a specified         time within whloh the
election    must be held after It is ordered.
      Where a statute requires performance of an act but does not fix
a specific   time for performance,   it must be performed within a reason-
able time. The object of Section 32 Is to fill      the vacancy promptly,
and the essential    act to accomplish this purpose Is the holding of the
election.   Obviously,  the ordering of the eleutlon without a prompt
performance of other necessary acts would be contrary to the intent
of the statute.    The requirements for an Immediate ordering of the elec-
tion and for holding the election      within ninety days after notice en-
compass the Intent that publlu notice of the election      should be given
in due course and within a reasonable time after Issuance of the order,
and that the election    order should fix a date for the election    not more
than ninety days after posting In due course.
     Your third question Is whether the special election      may be called
for the same day as.other    elections  to be held In the district,     ln-
eluding separate primary eleatlons,     If suoh other election   dates are
more than 90 days after the vacancy Is effeotive.
                                                           I'
      Since the time limit for holding the special election     hae been
covered in our answer to the first     and second questions,   we shall
answer this question solely from the standpoint of whether a special
election   to fill a vacancy In the Legislature   may be held on the same
day as other elections.
      A number of prior Attorney General's opinions have held, expressly
or implledly,     that a special election      to fill  a vacancy In the Legis-
lature   may be held on the same day and at the same place,as         other
elections,    Including a party primary, but the special election         must
be conducted as a separate election,         with separate ballots,   ballot,
boxes, poll lists,     returns,    etc. Attly Qen. Ops., Book 382 pp. 18,
48 (lg38),    o-2539 (lg4o),    0-2853 (lg4o),    0-3473 (19411, o-4872 (19421,
v-1367 (1951), v-1448 (1952). We ooncur In these holdings that there
is no legal obstacle      to holding the spealal election      at the same time
and place as other elections#         Of oourse, the oonsent~ of the authority
having control of the other election         would be necessary for a combl-
nation of the elections.      With respect to some types of elections,
                                                     .   . .
                         :
                                                                            I




Honorable   Price   Daniel,   page 6 (Ww-728)

there'bould be matters of policy       and practicability    to be considered,
but these are matters extraneous       to the legality    of combining the
elections.
      Whether the same election    officers    could conduct both elections       7'
would depend on the nature of the other eleotlon          and the quallfica-
tlons and method of appointment of the officers.          Different    consldera-
tions enter into this questfon,       depending on whether the officers        for
the other election     are appointed and paid by the county, by some other
political   subdivision,   or by a political     party (In the case of a
primary election).     For a discussion     of this questlon,we    refer you to
the Attorney General's opinions cited above. Whether there would be
any substantial    saving of election     cost in holding a special election
for members of the Legislature      along with a party primary is doubtful
if Attorney General's Opinions O-2539 and v-1448 are followed,              Since
you did not ask this question,      we did not review these, opinions.
                                        SUMMARY
          'Article    III, Section 13 bf the Texas Constitution
    does not make It mandatory that the Governor call a
    special election       to fill    a vacancy In the Legislature
    within any specified        time after the vacancy occurs, but
    Section 32 of the Texas Election Code (Article           4.09,
    Vernon18 Election Code) makes it his duty to call the
    election     Immediately. However, the word 'lmmedlately'f
    Is flexible     when considered against a particular        bitua-
    tlon. The call should be Issued at the first           reasonable
    opportunity,      taking into consideration     the necessity    for
    filling     a particular    office.   Where the regular seseion
    has already expired,        the definition   of '%mmedlately"
    would depend, among other things, upon the timing of one
    or more specfal sessions.
            The Election Code requires that the election    be held
     not less than 20 nor more than 90 days after posting of
     the election    notice, but does not impose any specified
     limit on the period of time that may elapse between is-
     suance of the order for the election    and posting of the
     notice.   However, it is implied that the notice   will be
 : posted in due course and within a reasonable time after
 _1' issuance of the order.

            A special election to fill   a vacancy in the LegUla-
     ture may be called for the same day as other elections       to
     be held In the dlstrlot,    including primary elections,   and
     it may be held at the same place as other electlo,ns,     but
     it should be conducted as a separate election      with separate
     ballots,   ballot boxes, returns,    etc. Whether the 8ame 8et
                                                     I.
         .   .   .




    Honorable        Price   Daniel,   Page 7 (w-728)

         of election officers could conduot both eleatlons                   would
         depend on the nature of the other election,
                                            Very truly   youra,
                                            WILL WILSON
:                                           Attorney ffeneral     of Texas



    MKW:bh
    APPROVED:
    OPINION COMMITTEE:
    W.V. ffeppert,       Chairman

    Houghton Brownlee,.Jr.
    J.C. Davis, Jr.
    Leon F. Pesek
    C.X. Richards
    B.H. Tlmmins, ,Jr.
    REVIEWEDFOR THE ATTORNEY
                           (tEXERAL
    BY:
          Leonard Passmore
