GERALD C. MANN
                             AUHTIN   11.TRKAe


   Honorable John Atchison              Opinion No. o-2187
   County Attorney                      Re: Situation resulting from
   Gainesville, Texas                       an independent school dis-
                                            trict election for two
                                            trustees, when one candi-
                                            date receives 74 votes,
                                            two others 70 each and a
   Dear Sir:                                fourth 41.
              In your letter of April 8, 1940, you advise      US   of
   the following facts:
                 "Valley View Independent School District of
            Cooke County is located south of Gainesville and
            comprises the unincorporated town of Valley View
            together with one or more communities outside said
            town. It has less than 500 scholastics.
                 "An election was held in said Independent school
            district on Saturday, April 6, 1940, for the purpose
            of electing two school trustees. There were four
            candidates whose names were regularly carried on the
            ballot. One received 74 votes, two received 70 votes
            each, and the,fourth received 41 votes."
              You request our opinion as to whether (1) the man
    receiving 74 votes has been elected, (2) in what manner
    should the still remaining vacancy or vacancies be filled,
    that is whether by appointment or special election, and
    (3) if a new election is to be held whe%erthe names of
    new candidates should be permitted on the ballot.
                 Article 2746a,   Vernon's Civil Statutes, reads in
    part:
              "All of the,ballots for the election of a school
         trustee in common school districts and in independent
         school districts having fewer than five hundred (500)
         scholastics as shown by the last preceding scholastic
         census roll approved by the State Department of Educa-
         tion and exclusive of transfers shall be printed with
         black ink on clear white paper of sufficient thickness
         to prevent the marks thereon being seen through the
         paper.,and be of uniform style and dimension; at the
         top of the ballot, there shall be printed 'Official
         Ballot,              Independent School District,'
         the number or name of the school district in which the
Honorable John Atchison, Page 2   (O-21.87)


     election Is to be held to be filled in by the judge
     of'the county when he orders the ballots printed.
     Any person desiring to have his name placed on said
     official ballot, as a candidate for the office of
     trustee of a common school district or of an inde-
     pendent school district as herein provided shall,
     at least ten days before said election, file a
     written request with the county judge of the county
     in which said district islocated, requesting that
     his name be placed on the official ballot, and no
     candidate shall have his name printed on said ballot
     unless he has complied with the provisions of this
     Act; provided that five or more resident qualified
     voters in the district may request that certain
     names be printed. The county judge, upon receipt
     of such written request, and at least five days
     before the 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 supplies necessary
     for such election to the presiding officer of the
     election at least one day before said election is
     to be held, said election supplies, ballots, boxes,
     and tally sheets to be delivered by the county judge
     by mall or In any other manner by him deemed best,
     to the presiding officer of said election in sealed
     envelopes which shall not be opened by the election
     officer until the day of the election. . . .I

     _. , The
          . , statutes
                  ..   relating specially
                                 ..      .to. trustees.for
                                                        .
such aistrlcts as tne one in questlon contain no provlslons
covering the first and second questions. Hence the problem
will be controlled by the general election laws. Scherz
vs. Telfer, 74 S.W. (2) 327.
          Article 2953 and the first section of Article 2953a,
Vernon's Civil Statutes, read as follows:
          "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 elec-
     tion void as to such office only,md shall immediately
     order another election to fill such office; and notice
     shall be given, and such other election sh$ll be held
     in the same manner as the general elect+     Acts 1876,
     p. 3lO;,G.L. vol. 8, p. 1146; P.D. 3606.
Honorable John Atchison, Page 3(0-2187)


          "Sec. 1. Where special elections are author-
     ized 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 nor more
     than nine+ days after the first public notice of such
     order."
          It is noted that there were two offices to be
filled by the election just held. In one of them there was
no tie. The man receiving 74 Woteswas duly elected. As
to the other office there was a tie, two men receiving 70
votes each. As to that office the election was void, under
Article 2953. Under that~statute anobher election should
be ordered. Article 2953a requires tha time of such special
election to be fixed at not less than twenty nor more than
ninety days after the publication of the order. Such minl-
mum time thus allows for the ten days to file application
for a place on the ballot as provided in Article2746a,
and we are~of the opinion that such applications, if season-
ably filed, should be accepted and the names of such new
applicants placed on the ballot for the special election.
                                  Yours very truly
                             ATTORNEY GENERAL OF TEXAS
                             By    s/ GLENN R. LEWIS
                                      Glenn R. Lewis
                                           Assistant
APPROVED   APR. 15, 1940
s/GERALDC.MANN
ATTORNEYGENERAL   OF TEXAS

GRL:ew/amm                    APPROVED    Opinion Committee
                                          By B.W.B. Chairman
