                               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
