                      OFTEXAS




Bon, 3. 3. Stevenson
Assistant County Attorney
Kimble Ccunty
Junction, Texas

Dear Sir:              Opinion No. 6198
                       Re: Status of Independent School
                            District with leas than 150
                            scholastics accordin to
                            latest census.
                       Re: Status of primary election
                            clerk nominated for office
                            by Wite-in  campaign, and
                            who has violated Art. 218,
                            Penal Code.

          Your recent communication addressed to this depart-
ments reads, in part, as follows:

          '1 have been saked by the County Judge of
    Kimble County whether or not an Independent School
    District which has fewer than one hundred fifty
    (lj0) scholastics, es required in Art. 2763, Revised
    Civil Statutes, applyins to small Independent School
    Districts, but has the required number of scholastics
    gcing to school in this Independent District. by rea-
    aon of transfers from two other ‘ommon School jia-
    tricta. The trustees of this Independent school
    District contracted with the two Commcn School DTS-
    tricts,above menticned for these scholastics.   There-
    fore t is this Independent Uiatrict still an Independ-
    ent district or dces it revert to a Commcn School
    Xatrict?

          "In a Primary Election where the qualified voters
     write the names in for an officer, znd one of the namea
     so written is is on the Election Board as a~ clerk, and
     if the officer, who is on the Election Eoard, has vio-
     lated the provisions of Art, 218 P. C. of the Statutes
     and said officer had been elected, would the fact that
                                                          .      .




Hon. j-;-% Stevenson, page 2




        he violated the provisicns of said article pre-
        clude the Democratic Executive Committee from
        certifying said dandidate and causing his name
        to be placed on the ballot for General Election
        in November?"

             Regarding the matters covered by the first quoted
paragraph of-your letter, you are advised as follows:

             Art. 2763, R. c. S., regarding small independent
school districts and laws applicable thereto, reads thus:

             "All incorporated districts, having each feirrer
        than one hundred and fifty scholastics according to
        the latest census, shall be governed in the general
        administration, of their schools by the laws which
        apply to common school districts; and all funds of
        such districts shall be kept in the county deposi-
        tories and paid out on order of the trustees ap-
        proved by the county superintendent."

              By "latest census,! as referred to in Art. 2763
aforestid, is meant the latest march scholastic census pro-
vided for in Chapter 14 of Title 49, V. A.S. C' such is the
uniform and unvarying interpretation of our State aepartment
of Education, we have been officially adv!.sed. Neither have
'we discovered any statutory provisicn to the ccntrary. There-
fore, any transfers which are effected by any of the statutory
methods cannot be considered in determining the scholastic
population according tc the "latest census,' within the
meaning of said Art. 2763.

             A close reading of Art. 2763 aforesaid reveals that
an incorporated or independent district, having fewer than
150 scholastics according tomthe latest census, does not lose
its status of aninco~aporated 'district. Such a district "shall
be governed in the general administration" of i',s.schools 'by
the laws ,which apply to common school districts!' Also, all
funds of such cdlstrict shall be kept in the county depository
and paid out on order of the trustees ap::roved by the county
superintendent."
Hon. J. B. Stevenson, page 3




               Your first question is therefore, answered as
follows:

        Such district remains an independent district.            It
does not revert to a common school district.

        'Sic
           now consider the second quoted paragraph of
your communication.

               Article 2940, Vernon's Annotated Civil Statutes,
reads ,   in     part, as fOU0Ws:

       "No one who holds an,office of profit or trust
     under the United States or this State, or in any
     city or town in this State, or . . .who is a candi-
     date for office, . . .shall act ES jud;;e, clerk or
     supervisor of any election;. . .

        In the case of Gayle v. Alexander, 75 S. W. (2) '706,
our Court of Civil Appeals at ayaco, in construing the provisions
of said.rt. 2940, said:

        "The lenislative intent in enactin? the article
     under cons?deraticn was ev'dently to Restrict the
     selection of election officers tc those who '$$erefree
     from the supposed influence, embarrassment, or 'nter-
    test arising from office holding crcersoncl    candidacy
     . . .So far as the selection of election officers is
     concerned, said article might well be deemed mandatory
     and ccmpliance therewith requ;ired Jvhen the eligibility
     of an cfficer so selected is denied, or his right to
     serve as such assailed by any proper proceedin,g prior
     to his actual service. Browning v. Gray, 137 Tenn.
     70 191   S. v*yi.~52j.No such situation is presented in
     this caie.~ isut should the provisions of said article
     in that phase of its application be held mandatory,
     it does not necessarily follow that when a person
     named in said article has been selected as an election
     officer for a particular voting precinct, and his selection
     has not been assailed but has been acquiesced in by the
     qualified electors of such precinct by participating in
     the election held therein, and the votes cast in such
     precinct have been fairly and correctly counted and
     tabulated and return thereof duly made, that such elec-
     tion as to said precinct should solely by reason of
 Hon. J. i3. Stevenson, page 4




        the participation of such election officer in
        holding the same, be declared viod, the returns
        thereof excluded frcm the canvass of the votes
        cast in said election in the entire ccunty, and
        the voters cf such precinct thereby in effect
        disfranchised.

            "The courts have held with practical unanimity
        that an election is not vitiated by the fact that
        the election officers who acted under color of
        authority did net pcssess the required qualifica-
        tions, especially  when no frau? or misconduct is
        imPuted. Hunnicutt v. State, 75 Tex. 233, 239;
        12 S. u. 106; Gel1 v. Faulkner, 84 Tex. 187, 190;
        19 S.'h'. 400; . . .20 C. J. Pp. 99, 90 369; 9 R. c.
        L ., P. 1012, et seq. 832 and 33. . ." (Emphasis ours)


          From your communication, it is ,not clear just when
the election clerk became a candidate for the office involved.
vile
   presume, therefore, that he was not a candidate at the
time of his selection as clerk. lie was evidently non:i.nated
 as a result of a "write-in" campaign.

          In just what manner, said clerk violated the provi-
sions cf Art. 218, P. C., if he did so, is not stated. Said
Article 2lfi reads as follows:

          "Any jud,Se, clerk, or ether person who may
     be in the room where an election, either primary,
     special or general, is bein? held, who there
     indicates by wcrd or siln how he desires a citizen
     to vote or not to vote, shall be fined not less
     than two hundred nor more than five hundred dollars
     and be ccnfined in jail not less than ten nor more
     than thirty days."

          The penalty for violatin:; any of the provisions of
said article is .thus limited to a fine and, ,aail sentence. No
other penalty is Prescribed.   Therefcre, .the Democratic
Executive Committee would not 'beprecluded from certi~fyine
said candidate and causin; his name to be placed on the
ballot for gsneral electicn in November.
Hon. J. B. Stevenson, page 5




          We further hold that it makes no difference when said
election clerk might have become a candidate for the office to
which he was nominated. Unless an election contest has been filed
within the statutory time, resulting in a final judicial determina-
tion that said clerk's violation of any or all of the prcvis?ons
of Art. 218 P. C., was cf such a nature and to such an extent as
to change the result of the election, said nominee's name must be
properly certified for a place on the 'ballot in the November gener-
al election.

                              Very truly yours,

                              ATTORNEY GENERAL OF TEXAS


                              BY     L. H. Flewellen
                                          Assistant
LHF:rt/pam

APFROVED OCT 2, 1944
GARLOS C. ASYLEY
FIRST ASSISTANT
ATTORNEY GENERAL

API-ROVED OPINION COMMITTEE
BY BPW, CHAIRMAN
