           Tms     ATNBRNEY              GENERAL
                         OF   ?&-EXAS




Hon. J. W. Edgar                   Opinion No. M-234
State Commissioner of
  Education                        Ret    Whether Article 9.38a,
Texas Education Agency                    Texas Election Code,
Austin, Texas                             applies to a school
                                          trustee election and re-
Dear Dr. Edgar:                           lated questions.

          You have recently requested an opinion from this
office concerning the construction of Article 9.38a of the
Texas Election Code. The specific questions are quoted from
your letter as follows:

          "1. Is Article 9.38a applicable to a
     school trustee election?

          "2. Does discretion lie in the Board
     of Trustees to grant or refuse the applica-
     tion for recount or is it a ministerial duty
     to grant?

          "3* What Board of Trustees acts on the
     application, the Board existing on the day of
     election, or the Board as constituted in part
     of the newly elected trustees based on the
     original canvass?

          "4. What effect, if any, has the fact
     that a local district court has ordered and
     will have its own ,recounthave upon said ap-
     plication for recount and the school board's
     power to act upon same?"




                          -1139-
Dr. J. W. Edgar, page 2 (M-234)



          The first question requires an analysis of Subdivision
1 of Article 9.38a, which is quoted, in part, as follows:

         "Subdivision 1. Grounds for recount.
    (a) A candidate for nomination or election
    to any public office or to the party office
    of county chairman or precinct committeeman
    may obtain a recount of the votes cast for
    the office on manually counted paper ballots,
    in the manner outlined in this section:



          Our courts have long recognized that school trustees
are public officers. In Lee v. Leonard Indewndent School
District, 24 S.W.2d 449 (Tex.Civ.App. 1930, error ref.), the
Court stated at page 450:

          "School districts are but subdivisions
     of the state government, organized for con-
     venience in exercising the governmental func-
     tion of establishing and maintaining public
     free schools for the benefit of the people.
     School trustees are public officers, whose
     powers are under control of the Legislature."

          Unquestionably, Article 9.38a applies to school trustee
elections, where paper ballots are used.

          Question Two (2) requires an analysis of subdivisions
7, 8, and 9 of Article 9.38a which deal with the duties of the
canvassing board. Subdivision 7 is quoted, in part, as follows:

          "Subdivision 7. Procedure for ordering
     recount. (a) Where a candidate has complied
     with all conditions for obtaining a recount,
     as soon as practicable the canvassing board
     conducting the recount shall set a dateson
     which the recount is to begin and shall notify
     by mail each opposing candidate of the place
     or places where the recount will be conducted


                         -1140-
Dr.   J. W. Edgar, page 3 (M-334)



      and the exact time when it will begin. The
      time for commencing the recount shall not be
      sooner than two daysnor later than four days
      after the date of the notification. The re-
      count shall be conducted in the office of the
      officer having custody of the voted ballots,
      who shall be entitled to be present or to have
      a representative designated by him present
      while the recount is in progress.

            " (b) The canvassing board shall appoint
       a committee of three disinterested registered
       voters of the political subdivision in which
       the ballots were cast, who shall make the re-
       count. . . . The committee shall permit any
       affected candidate or one person authorized in
       writing by such candidate to be present to watch
       the recount, to inspect the ballots, to observe
       the tallying of the votes, and to observe all
       other actions of the committee in connection
       with the recount."

            Subdivision 8 is quoted, in part, as follows:

            "Subdivision 8. Procedure for making the
       recount. (a) The canvassing board shall issue
       an order to the officer having custody of the
       voted ballots, stating the names of the recount
       committee and the time at which the recount is
       to begin, and directing him to deliver to the
       chairman of the committee the ballot box or
       boxes containing the ballots to be recounted.
       . . .

            "(c) After the recount is completed, the
       committee shall make out its report and deliver
       it to the presiding officer of the canvassing
       board. The chairman of the committee shall de-
       liver the locked ballot boxec with the original
       contents intact and the ballot box keys to the
       respective officers who originally had custody
       of the boxes and the keys."

                           - 1141-
Dr.   J. W. Edgar, page 4 (M-234)



           Subdivision 9 is quoted as follows:

           "Subdivision 9. Action by canvassing
      board following recount. As soon as practi-
      cable, and not later than two days after re-
      ceiving all the committee reports, the presid-
      ing officer of the canvassing board shall con-
      vene the board, which at such meeting shall
      declare the result of the election for the
      office involved on the basis of the revised
      returns. The board and its presiding officer
      shall take such further actions as may be ne-
      cessary in the same manner as for an original
      canvass."

          It seems clear that once a candidate has complied
with the conditions for recount, the canvassing board is then
required to set a time and notify the other candidate of the im-
pending recount, and follow the statutory procedure in providing
a recount, and then canvassing the results. The board has no
discretion in refusing the application for recount, provided
the applicant has complied with the conditions and the previously
canvassed vote shows applicant was defeated by less than five per
cent (5%) of the votes given the next highest candidate.

          Question Three (3) requires an analysis of Subdivision
2 of Article 9.38a, which is quoted, in part, as follows:

            "Subdivision 2. Procedure for requesting
       recount; general provisions. (a) A candidate
       desiring a recount must file a written, signed
       application with the presiding officer of the
       body which canvasses the returns of the elec-
       tion and makes the official declaration of the
       result (hereinafter called 'canvassing board').
       The application may be presented for filing at
       any time after the returns from all election
       precincts involved have been received from the
       presiding judges of the election, and it must
       be presented not later than the second day
       after the official declaration of the result:
       . . .,I

                           -1142-
Dr.   5. W. Edgar, page 5 (M-234)



          The above quoted portion of Article 9.38a identifies
the canvassing board which must act upon the application for
recount, and places a limitation of time when the application
must be submitted to the presiding officer of the board. In
light of the fact that the Article (subdivision 2) speaks of
the board as the body which canvasses the returns and declares
the official declaration of result, it is our opinion that the
canvassing board for recount is the board of trustees existing
on the day of the election.

          This position is further fortified by the fact that
the time limitation whereby the applicant must submit applica-
tion for recount runs from the time before the first canvass is
made until no later than two (2) days after the first canvass
and official declaration of result. This time limitation upon
the submission of the application for recount implies that the
application must go to the board as constituted on the day of
election.

          Additionally, the time limitation upon the procedure
of recount as set out in Subdivision 7(a), (quoted above, pages
2 and 3,) shows an intent that the recount be handled as speedily
as possible and still give the other candidates involved fair
notice of the impending recount. Giving the statute a reasonable
and practical constr~uction,we conclude that the board of trustees,
as existing on the day of election, would be in much better position
as a practical matter to comply with the speedy requirements for
recount than would the newly elected board. We reiterate, there-
fore, that it is our opinion that the board of trustees existing
on the day of election must serve as the canvassing board for the
recount, if any.

          In regard to Question Number Four (41, we have been
advised by the County Attorney of Starr County, the Honorable
Frank R. Nye, Jr., that the District Court action to which you
refer, in your letter, was an action instigated under Article
9.02 of the Election Code to determine if election fraud had
been committed.

          This office has long recognized that an action under
Article 9.02 is not an "election contest." We quote from At-
torney General's Opinion No. R-3009 (1952), page 3:

                           -1143-
Dr. J.   W.   Edgar, page 6 (M-234)



         "Section 130 (now Art. 9.02) . . .is an
    ex parte proceeding conducted in a manner sim-
    ilar to that of a court of inquiry and is not
    in any manner a contest of an election which
    would change the results of such election."

          The court action in question not being an "election
contest", and not falling into the exclusive jurisdiction of
the District Court as required by Section 8 of Article V of the
Texas Constitution, it is our opinion that the fact that a Dis-
trict Court will have a recount of the ballots under authority
of Article 9.02, does not prevent the utilization of the recount
procedure authorized by Article 9.38a.

                        SUMMARY

          Article 9.38a, Vernon's Texas Election Code,
     is applicable to school trustee elections.

          The board of trustees existing on the day of
     election will serve as canvassing board for re-
     count, and it has a ministerial duty to order re-
     count if the applicant meets the conditions of
     Article 9.38a, and the previously canvassed vote
     shws applicant was defeated by less than five
     per cent (5%) of votes given next highest candidate.

          The fact that a District Court will have a
     recount of the ballots under authority of Article
     9.02, Vernon's Texas Election Code, does not pre-
     clude a recount under authority of Article 9.38a.

                                      truly yours,
                                “fl



Prepared by James C. McCoy
Assistant Attorney General


                            - 1144-
.




    Dr. J. W. Edgar, page 7 (M-234)



    APPROVED:
    OPINION COMMITTEE

    Hawthorne Phillips, Chairman
    Kerns Taylor, Co-Chairman
    John Fainter
    Eugene Heatly
    Scott Garrison
    Bill Craig

    A. J. CARUBBI, JR.
    Executive Assistant




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