              THEATTORNEY                   GENERAL
                            OFTEXAS




                                 March 18, 1939


Honorable Emmett Wilburn              Opinion No. O-17
County Attorney                       Re: Special Election After Tie Vote
Center, Texas                         in Common School Trustee Election

Dear sir:

           We are in receipt of your letter of February 21, 1937, in which
'you request the opinion of this department upon the followlug question:

          "Is a new election necessary this year, when at a common
     school district trustee election last year (1938), the trustee
     whose term was expiring received a tie vote with his opponent,
     and the old trustee is continuing in office by virtue of'not
     having a successor, and iu this connection the trustee servFng
     did not qualify again, but merely held over by virtue of not
     k+ving a successor."

          A school trustee who holds over until hls.successor is duly
elected, and qualified is not merely a de facto trustee, but is held
to be a de jure officer under Texas Constitutiou, Art. XVI, Section 17.
cowan vs. capps (T.c.A. 1925) 278 S.W. 283, reversed on other'grounds
(Com. App. 1926)286 S.W. 161; State vs. Jordan (T.c.A. 1930) 28 S.W.
(2d) 921.

          Articles 2745,2746 and 2746a, R.C.S. 1925, as amended, deal
with common school trustee elections, and Article 2745 provideS that.
"all vacancies shall be filled by the County Board of Trustees for the
remaFnder of the term in which the vacancy occurs." In this connection,
it is noted that there is no specific provision for the procedure to
be followed in case of a tie vote in a common school trustee election.

            Title 50, Elections, R.C.S. 1925, contains the following pro-
visions:

          "Art. 2923. The provisions of this title shall apply to
     all elections held in this State, except as otherwise.provided
     herein.

          "Art. 2953. At any election, if there be an equal number
     of votes given to two or more persons for the same office, ex-
     cept executive offices as provided in the Constitution, and no
     oue elected thereto, the officer to whom the returns are made
     shall declare such election void as to such office only, and
Honorable Em&t    Wilbmm,   Page   2 (O-17)


     shall Inmediately order mother election to fill such office;
     and notice shall be given, and such other election shall be
     held In the sme manner as the general election."

            It was stated in Scherz vs. Telfer (T.C.A. 1934) 74 S.W. (2d)


          "The election of such trustee is, of course, undoubtedly
     controlled by the provision of Articles 2745, 2746 and 2746a,
     in all matters and things covered by the provisions of said
     Articles. But it is manifest, we think, that in all other
     matters not covered by said Articles the provisions of the
     Terre11 Election Law would apply."

          The court in this case accordingly held that since election
contests are not treated in the statutes relating to common school trus-
tees, but are specifically provided for in the general election laws,
contests of common school trustee elections are referable to the general
election laws. It should be noted that although there was a "vacancy"
within the definition laid down In Clark vs. Wornell (T.C.A. 1933), 65
S.W. (2d) 350,the trial c&t    was instructed to set a date for holding
a new election to fill the "vacancy", as provided in Article 3054,R.C.S.
1925, which is the general statute applicable to election contests.

          Although ordinarily the time provided for calling or holding
an.e1ectio.nis mandatory, aqd must be strictly followed, we are of the
opinion that in view of the holding IuCowan vs. Capps (Coin.App. 19261,       0
286 S.W. 1.61,the election may yet be properly held. See also 9 R.C.L.;
p. 999, Sec. lg.

          It is the opinion of this departnientthat under the facts stated,
a new election should be called, as provided by Art. 2953, aud should be
conducted as directed in Articles 2745, 2746,and 2746a, R.C.S. 1925,
as amended; however, such election would not necessarily be held on the
first Saturday in April.

                                                   Yours very truly

APPROVEB:                                     A!LTOlNEYGENERAL-OF TEXAS

/s/ Gerald C. Mann
                                              By   /s/ Cecil C. Cammack
ATTORNEY GENERAL OF.TEXAS                              Cecil C..Cammack
                                                              Assistant

ccc:FG:I&¶

O.K.
/s/'@xL


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