               ‘??IXE      ~‘ITORNEY                 GENERAL
                                  OF     TEXAS
                                Aus-       11. m


                                   March    25. 1957


Honorable  Zollic Steakley                     Opinion   No. WW -75
Secrctwy  d state
Austin, Texas                                  Re:   Certification      of candidate in
                                                     a special election where his
                                                     application was mailed on the
                                                     ,laPt dgy:for.‘filing   but was not
Dear   Mr.   Steakley:                               received    until the following day.

          You have requested     an opinion concerning   your duty to certify the
name of Grover     Cleveland   Damuth for a place on the ballot at the special
election to fill a vacancy in the Texas House of Representatives      for the 29th
Representative    District.  which is to be held on April 20, 1957. You state
that the application was received     in your office by mail onthe morning     of
March 21. and that the envelope in which,tbe application was received bears
the postmark    “Conroe Tex. Mar 20 3 30 P M”.

           Section 32a of the Texas Election Code (Article 4’.10, Vernon’s     Texas
Election Code) provides     that an application for a place on the ballot at a spe-
cial election held for the purpose of filling a vacancy “must be filed not later
than thirty (30) days before any such epecial election.”     The deadline for fil-
ing applications   for the special election to be held on April 20 was midnight
of March 20. Att’y Gen. Op. WW-38         (1957).

          Statutory provisions      fixing the time for the filing of ap iications are
mandatory.     Burroughs    v. Lyles, 142 Tex. 704, lgl S.W.2d 570 71944); Mc-
Waters   v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.          1952). The general rum
that an instrument     is not “filed” until it is delivered   to the proper officer.
Burroughs    v. Lyles.

           Section 190 of the Election Code, relating to the filing of applications
for a place on a primary        election ballot, provides     that an application    “shall
be considered    filed if sent to such chairman at his post-office           address by
registered   mail from any point in this State.” but Section 32a makes no such
provision with respect to an application for a place on a special election bal-
lot. In Burroughs      v. Lyles, the court had before it an application          of a candi-
date for a district     office in a primary    election, which had been placed~ in the
mail on the last day for filing but which was not delivered            to the party chair-
man until after that date. At that time the statute regulating            filing of appli-
cations for district offices (Article       3112, R.C.S.) required      that the candidate
file his application     “not later than the third Monday in May,” without making
any provision    that an application     mailed on or before the deadline would be
considered    as filed.    Another statute regulating     filing of applications     for state
Hon. Zollie    Steakley,   page   2:   (ww-73)




offices (Article  3111, R.;. S.) did contain the provision     that an application
for a state office “shall be considered     filed if sent to such chairman at his
post-office  address   by registered   mail from any point in this State.”       The
court ‘held that the application   for the district office had not been filed in
time, and that “the fact that the Legislature      provided that a~request sent by
registered   mail should be considered     filed in the quoted statute, but made
no such provision    in Article 3 112, is convincing that a different rule was
intended to apply.”

        In view of this decision, it is our opinion that the application of
Grover Cleveland Damuth was not filed within the required time., and that
his name should not be certified for a place on~the special election ballot,


                                        SUh4MARY

                        An application for a place on a special election
           ballot, filed under the provisions   of Section 32a of the Tex-
           as Election Code, is ,not timely filed where it is mailed on
           the last day for filing but is not delivered   to the proper of-
           ficer until the next d>y.

                                                 Yours   very    truly,

                                                 WILL W ILSON
                                                 Attorney General




                                                     Assistant

APPROVED:

OPINICIN      COMMITTEE
H. Crady      Chandler, Chairman
