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                             March 21, 1963


Honorable Henry Wade                 Opinion No. C-     40
Criminal District  Attorney
  of Dallas County                   Re:   Whether an Individual  can
Dallas, Texas                              have his name on the ballot
                                           for county school trustee
                                           and for trustee of an
                                           independent school district
                                           in the same election,  and
Dear Sir:                                  related question.
              You have requested   an opinion   on the following
questions:
          1. Can a person have his name on the ballot as a
candidate for the office of county school trustee of Dallas
County and also for the office of trustee of the Dallas Inde-
pendent School District, in the same election?
              2.    In the event that he cannot, can he withdraw his
candidacy     for   one office and remain on the ballot for the other
office?
              The fact. situation out of which these questions       arise
is   stated   In your opinion request as follows:
              “On April 6, 1963,   there will be conducted In
       the City of Dallas, Texas, and the County of Dallas,
       Texas, an election   to determine the County School
      .Board Trustees and the Dallas Independent School
       District   Board Trustees.     The County of Dallas and
       the Dallas Independent School District       have agreed
       to hold a joint election     for said Boards of Trustees
       as permitted by Article     2746c,  V.A.C.S.   However, we
       understand that no formal resolution       has been adopted
       as to whether a single ballot or separate ballots
       will be used.    The voting on April 6, 1963, will be
       conducted by the use of voting machines with all of
       the candidates’ names for both .Boards appearing on
       each voting machine.      However, the absentee voting
                                                                       .




Honorable   Henry Wade, page 2 (C-       4C)


      will be conducted separately;    i.e., the Dallas
      Independent School District   will conduct their own
      absentee voting, while the County Clerk will conduct
      the absentee voting for the County School Board.
            “An individual has filed applications as a
      candidate for trustee for both the Dallas Independ-
      ent School District  Board and the Dallas County
      School Board. ”
            Article   XVI, Section 40 of the Texas Constitution,
which prohibits     a person from holding two civil        offices   of
emolument at the same time, does not prevent a person from
holding the two offices       here Involved,    since the office    of
trustee of an independent school district           is not an office    of
emolument.    However, regardless       of whether one or both offices
are offices   of emolument, the same person cannot hold two ln-
compatible offices.       34 Tex.Jur.    351,  Public Officers,    Sec. 18.
In Attorney General’s Opinion No. O-1398           (1939), it was held
that the offices     of county school trustee and trustee of an
independent school district        are incompatible    and that the same
person may not hold both offices         simultaneously.      We egree with
that holding.      Accordingly,    if the individual     fn question were
elected to both offices,        he could accept only one of them.
          Article  2676,  Vernon’s Civil Statutes, which is the
general statute pertalnfng   to the electeon of county school
trustees, contains the following   provisions:
              “Section 1~ + + * The time for such elec-
      tion shall be the first         Saturday in April of each
      year; the order for the election           of county school
      trustees     to be made by the county judge at least
      thirty    (30)    days prior to the date of said election,
      and which order shall desfgnate as votfng places
      withen each common or independent school district
      the same voting place QP places at which votes are
      cast for the District         Trustees of said common and
      independent school districts,          respectively.    The
      election     officers    appointed to hold the election
      for District       Trustees in each of‘said      school dfs-
      tricts,    respectively,      shall  hold this election    for
      county school trustees.”
 .    .




Honorable   Henry Wade, page 3 (C-40        )


            Article  2790e, V.C.S.,  which Is the statute pertain-
lng to the election    of county school trustees  In counties having
a population    of more than 350,000, contains a similar provision,
as follows:
            “Sec. 13.    The election    for County School
     Trustees shall be held on the first         Saturday in
     April of each year, and the election         officers
     holding elections      for trustees    in each district
     in the county shall hold the election         for County
     School Trustees at the same time and place as the
     election    for district   trustees.”
           Under these statutes,   an election  for county school
trustees must be conducted at the same place and by the same
election  officers  as an election  for trustees of an independ-
ent school district   which is held on the same day.
           You have stated that the County of Dallas and the
Dallas Independent School District     have a reed to hold a
joint election    as permitted by Article  27&6c.  This statute
reads as follows:
            %henever an election        for members of the
     county board of trustees,        the board of education,
     board of trustees or other governing board of any
     school district,     or the board of regents,          board
     of trustees or other governl.ng board of any Junior
     college   district,    regional college      district    or
     other type of college       district,    is t,o be held on
     the same day and within all or part of the same
     territory    as any other of the elections          herefn
     enumerated, the various officers,           boards or bodies
     charged with the duty of appointing the election
     officers,    providing the supplies,        canvassing the
     returns, and paying the expenses of such elections
     may agree to hold the elections          jointly    and may
     agree upon the method for allocating            the expenses
     for the joint election.         Resolutions     reciting    the
     terms of the agreement. shall be adopted for each
     of the participating       boards or bodies.        The agree-
     ment may provide for use of a single ballot form
     at each polling     place, to contain all the offices
     to be voted on at that pollfng         place, or for sepa-
     rate ballot forms which may combine two or more of
     the sets of county or district         offices     to be voted
     on, provided that all of the offices            and candidates
                                                                    .   .




Honorable   Henry Wade, page 4 (C- 40        )


     for each district     or political    subdivision     shall
     appear on the same ballot.         One set of election
     officers     may be appointed to conduct the joint
     election,     and any person otherwise qualified        who
     Is a resident of either of the districtsor            polit-
     ical subdivisions     holding the election       shall be
     eligible     to serve as an election    officer.      Poll
     lists,    tally sheets, and return forms for the
     various elections     may be combined In any manner
     convenient and adequate to record and report the
     results    of each election,    and one set of ballot
     boxes and one stub box may be used for receiving
     all ballots     and ballot   stubs for the joint elec-
     tion.     Returns on joint or separate forms may be
     made to, and the canvass made by, each officer,
     board or body designated by law to receive and
     canvass the returns for each election,           or one of
     such officers,     boards and bodies may be designated
     to receive and canvass the returns for the joint
     election     and to report the results of each elec-
     tion to the proper authority.         Where the counted
     ballots    for two or more of the elections        are
     deposited in a single ballot box, the box contain-
     ing the counted ballots       shall be returned to the
     officer    or board designated in the agreement,
     which shall be an officer       or board designated by
     law to receive and preserve the counted ballots
     for one of the eLections constituting          a part of
     the joint electlon."
            In our opinion,   the effect     of Articles   2676 and 2790e
is to make the election     of county school trustees a part of the
election  for district   trustees,    although these statutes do not
require use of a single ballot form and do not authorize a com-
plete fusion of duties in conducting the election           and canvassing
the returns as is permitted by Article         2746~.    When the election
is held under the provisions       of Article   2746c,   that statute
further serves to untte the election.
           Article   6.01   of Vernon's   Election   Code provides      in
part as follows:
           'In all elections    by the people, the vote
     shall be by offfcial     ballot, which shall be num-
     bered and elections     so guarded and conducted as to
     detect fraud and preserve the purity of the ballot.
Honorable   Henry Wade, page 5 (C- 40        )


      * * * The name of no candidate shall appear more
      than once upon the official    ballot, except (a) as
      a candidate for two (2) or more offices     permitted
      by the Constitution    to be held by the same person;
      or (b) when a candidate has been duly nominated
      for the office   of President or Vice-President    of
      the United States and also for an office     requir-
      ing a state-wide   vote for election.  * * *'I
            In the brief accompanying your request, you make the
following   statement, with which we are In agreement:
             "The purpose of the above statute would
      appear to be to prevent a person from becoming
      a candidate for more than one office    when he
      could only accept one of them. This places on
      the candidate the burden of making a choice of
      which office   he wishes to run for before the
      election,   rather than allowing him to run for
      both, and If elected to both, making his choice
      after the election."
             If, at the election      to be held in the Dallas Independ-
ent School District      on April 6, the names of the candidates for
the offices     of county school trustee and district         school trustee
are placed on a single ballot form, we are of the opinion that
Article   6.01   would clearly   prohibit    the placing of the same
person's name on the ballot as a candidate for the two offices.
Att'y Gen. Ops. O-2640       (1940) and WW-493 (1958).        We are further
of the opinion that a person cannot have his name appear as a
candidate for both offices,        regardless    of whether the offices
are listed     on a single ballot form or on separate ballot forms.
The law requires that the offices         be filled    by election   at the
same time and place, and it would be ignoring the purpose of
the prohfbitfon     in Article   6.01   to construe it as applying only
where a single ballot form is used.           The occurrence which the
statute is designed to prevent--election            of a person to an
office   which he cannot accept --is as objectionable           in the one
case as in the other.       To make the prohibition       in Article   6.01
turn on such a technicality        as the physical makeup of the ballot
forms would be thwartfng the intent of the statute,              and we are
unwilling    to construe it so narrowly.         We therefore    answer your
first   question in the negatfve.
Honorable      Henry Wade, page 6 (C- 40         )


          Your second question is whether the individual can
withdraw his candidacy for one office and remain on the ballot
for the other office.
             It should be noted at the outset that the period for
absentee voting in the forthcoming election       began on March 17,
the twentieth dav before the election       date of ADd.1 6. and that
the election    Is now In rogress.     Skelton v. Ya‘tes, 131 Tex.
620,  119 S.W.2d 91 (193 f; ). We are not informed as to what
action has been taken inregard      to placing this lndlvldual~s
name on the ballots,    and we shall therefore    state our opinion
on each of the four possible    situations    which may now exist.
               The manner In which this individual            became a candidate
for these offices          was by filing    an application     for each office,
as provided In Article           2745~~ V.C.S.    This statute is silent
on the matter of withdrawal of candidacy after the application
is filed.        The only statute which might apply Is Article                13.56
of the Election Code, which provides that a nominee may decline
his nomination up to ten days before the election                   ,if It be for
a city    office      and up to twenty days before the election              In other
cases.      In   Williams    v.  Huntress,   153 Tex. 443,     272 S.W.2d 87
 (19%).     the Sunreme Court i n construinn Article               - _ held that
                                                                 13.56
where a party nominee for an office             had been subsequently nomi-
I   ~_-   ,,




nated for a second office            to be voted on at the same election
and he could not lawfully have his name printed on the ballot
for both offices,          he had to decline the nomination for the
first    office     at least twenty days before the election               in order
to have his name printed on the ballot for the second office.
If Article       13.56    applies to a candidate filing        under Article
2745~ (i.e.,        if he Is a "nominee" wlthln the terms of Article
13.56),     it would follow that the application            first     filed would
have had to be withdrawn at least twenty days before the elec-
tion in order for the candidate to have his name placed on the
ballot for the second office,            unless the particular          circumstances
of your fact situation           call for a different      result.       We doubt
that Article        13.56   applies to candidates filing         under Article
2745c, but even so, we are of the opinion that ordinarily                      these
candidates may not withdraw their applications                 after absentee
voting begins.          However, we are of the opinion that an appllca-
tlon filed under Article            2745~ may be withdrawn before commence-
ment of absentee voting.             If, more than twenty days before the
election,       thfs Individual      withdrew his application         for one of
the offices,        we know of no prohibition       agafnst placing his name
on the ballot for the other office.              Therefore,      if this individ-
ual's name now appears as a candidate for only one of these
offices,      it may lawfully remain on the ballot for that office.
Honorable   Henry Wade, page i' (C- 40        )


           Your opinion request reveals that the County Judge
of Dallas County, who has the duty of certifying     the candi-
dates for county school trustee,   had sought your opinion as
to the legality  of placing this Individual's    name on the
ballot for both offices,   but it does not reveal whether he had
taken a position  In the matter.   If the officers   having the
duty of making up the ballot informed the individual      that his
name could not appear as a candidate for both offices      and that
he must choose between the offices   but he refused to do so, and
thereupon they proceeded with the printing of the ballots       and
left his name off the ballot for both offices,     we are of the
opinion that he now has no right to demand that his name be
printed on the ballot for either office.
             If the officers      charged with preparation      of the
ballots   were uncertain as to the law and did not resolve the
question before the expiration          of the time within which an
application    ordinarily     could have been withdrawn, we are of
the opinion that the regular deadline for withdrawal does not
apply.    Accordingly,    If printing of the ballots        has been held
In abeyance awaiting a resolution          of the candidate's     right to
have his name appear under both offices,            he may still    choose
which office    he wishes to run for.         Also, if ballots    have
already been printed,       listing   the Individual     as a candidate
for both offices,      we are of the opinion that the ballots          should
be revised so as not to violate          Article   6.01, and that the lndl-
vidual may still     choose which office       he wishes to run for.

                                  SUMMARY
            The office   of county school trustee and
      trustee of an independent school district    are
      Incompatible,    and the same person may not hold
      both offices    at the same time.
            A person may not have his name printed on
      the ballot as a candidate for the office   of
      county school trustee and also as a candidate
      for trustee of an independent school district,
      where both offices  are to be filled at an elec-
      tion held on the same day.
                                                           “.   .




Honorable   Henry Wade, page 8 (C- 40    )


           If a person who has filed for both offices
     withdraws his application   for one of the offices,
     he may have his name placed on the ballot for
     the other office.
                                 Yours very truly,
                                 WAQffONERCARR
                                 Attorney General of Texas




MKW:afg
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Marietta McGregor Payne
John Reeves
Paul Robertson
APPROVEDFOR THE ATTORNEY
                       GENERA&
BY: Stanton Stone




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