                                               Am-11 3, 1957


Honorable Zollle Steakley
Secretary of State
Austin, Texas
                                   Opinion No. WW-88
                            Re:    Time within which the returns
                                   of the Special Election for
                                   United States Senator can be
                                   officially canvassed and the
                                   winning candidate certified.

Dear Mri Steakley:
              Your request for an opinion of this office reads
as follows:
                    'Your opinion is respectfully requested
         concerning the time within which the returns of
         the Special Election for United States Senator
         to be held on Tuesday, April 2, 1957, can be
         officially canvassed and the winning candidate
         certified; together with the date on which the
         successful    candidate can assume the office of
         United States Senator    of Texas (unexpired term),
                "Articles 8.37, 8.38 and 8.39 of the
         Election Code would appear to control. Under
         these statutes the County Judge canvasses the
         results within 48 hours and certifies to the
         Secretary of State; on the 17th day after the
         ele-etion,exclusive of the day of election, and
         not before, the Secretary of State in the presence
         of the Gcvernor and Attorney General is directed
         to open and count the returns of the election,
         whereupon the Governor executes a certificate of
         election.
                "Article 8.44     of the Election Code would
         appear to apply only     to Special Elections for
         members of the Texas     Legislature and to elections
         to fill vacancies in     Congressional Districts."
              We agree with your conclusion that the election
returns in a special election for United States Senator canno?:
be canvassed by the Secretary of State until the 17th day after
                                    e ..,
                                                                              .-

-’   .




                                                                                   !




         the election. Article 8.30 of the Code.provides that the'
         presiding judges of the election precincts shall forward
         the returns in general and special elections to the county
         judge within 36 hours after the vot.eshave been counted, and
         that the county jud&e shall forward a copy of the returns
         to the Sezretaly of State within 48 hours after the returns
         have been canvassed by the commissioners court, Article 8.34
         provides that the co.mmissionerscourt shall canvass the returns
         on the Monday foliowing the election or sooner. Article 8.37
         again provides that "in a11 elections for State or district
         officers, in,nludlngpresidential electors, except members of
         the Legislature," the county judge.shall forward a copy of
         the returns to the Secretary of State within 48 hours after
         the canvass by the commissioners court. Article 8.38 pro-
         vides that the Secretary of State shall open and count the
         returns on the 17th day after the election, "and not before."
         Article 8.39 provides that the Governor shall immediately make
         ollt,sign and deliver a certificate of election to the person
         receiving  the highest number of votes for the office. Although
         the office of United States Senator is not, strictly speakrng,
            'state office ' we have no hesitancy in holding that these
         Eensral rdles also apply to that office.

                           An exception to these general rules Is found in
         Article 8.44 of the Code, which provides for an acceleration
         of the procedures in special elections for State Representative
         or State Senator during a legislative session or within 30 days
         prior to the convening of a session. An amendment to this
         statute, added in 1951, further provides that "this same pro-
         zedure shall be followed whenever a vacancy occurs in Congress
         in any congressional district of this State if Congress is in
         sessl.on:rl,isto 'Jonvenewithin 30 daxs from the date of the
         vacancy. -        Reference to a vacancy In any congressional
         distri,ct'limits its appp   lization to special elections for
         United S-;ites    &pTzae ntative in the various congressional
         dis+,r;c:';s,  and it has no applicability to a special election
         for United States Senator. While this language is sufficiently
         definl.tethat it h'ouldnot permit an extension by constru-tion
         to include spezlal eX:fions for United States Senator, it may


           1 T:nehistorical comment under Article 8.44 of~vernon's
         Amotated E?.@ztj.onCode, prepared by the Counsel for the EleztiGn
         Code Commicsicn i.:hTs?h
                               adderlthis provision when it wrote t'ne1951
         Ele,?tionCo,3e:,
                        describes the change as the addition of a provision
         "adopting the same proced?urein the case of a special election
         for representatives in Congress."
be pointed out that there is a reason for the Legislature's
having pyovided for accelerating the election procedures for
the offices of State Senator, State Representative, and United
States Rep-esentative without also providing for an accelera-
tion in the case of United States Senator. In case~of a
vaoancy In the first three offices, the people are without
representation In the legislative body until the vacancy is
filled by election, but they are represented in the United
States    Senate by a Senator appointed   In accordance    with
Article    12.02 of the Code until   the office  Is filled    by _
election.
              The person elected In the special election held
on April 2 will be entitled to receive a certificate of election
from the,Governor as soon as the results are canvassed on April lg.
Arts. 8.38 and 8.39, Vernon's Election Code. He will be entitled
to qualify for the office immediately thereafter and to assume
office as soon as he has qualified. Art. 12.02, Vernon's Election
Code; U.S. Const., Amend. XVII; 2 U.S.C.A. g$jla, lb, and 36.


                            SUMMARY
                 The Secretary of State should canvass
          the results of a special election for United
         States Senator on the 17th day after the
          election, in accordance with Article 8.38 of
          Vernon's Texas Election Code. The person
          elected is entitled to receive a certificate
          of election as soon as the results are can-
          vassed, and he is entitled to qualify and
          assume the office immediately thereafter.

                                      Yours   very   truly,
                                      WILL WILSON
                                      Attorney General of Texas

                                      By~~~~~
                                                Ma   K. Wall
APPROVED                                        Assistant
Opinion Committee
H. Grady Chmdler, Chaizmsn
Edwin P. Homer
Joe Go.Rollins
F. C. (Ja&) Goodman
