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    Honorable W. L. Edwards
    County Attorney
    Victoria County
    Victoria, Texas

    Dear Sir:                     Opinion NO. o-2862

                                  Re:   Election of third drainage
                                        commissioner, Drainage
                                        District No. 3, Victoria
                                        County, Texas

    We have recelved~ your letter of recent date requesting our
    opinion upon the method of determining the third drainage
    commissioner of Drainage District No. 3, Victoria County, Texas.
    For factual background of.your request, we quote from your.
    letter as follows:

    "At the past General Election Commissioners for the above
    Drainage District were voted on, as provided for by Article
    8119 R.C.S. There were four in the race. Of these, two
    received first and second place, and consequently are duly
    elected. However, the remaining two tied for third place,.
    and we hereby request the opinion of your department to the
    manner in which the thfrd commissioner shall be elected.
    "Article 81.19would seem to provide that in this instance
    the third Commissioner is to be chosen by the Commissioner"s
    Court from the two who tied for third place, although this-
    statute to our mind is somewhat ambiguous.  This was not the
    first election to be held in the District, as it has been in
    existence for a number of years."

    Article 2953, Revised Civil Statutes, provides:

    "At any election, if there be an equal number of votes given
    to two or more persons for the same office, except executive
    offices as provided in the Constitution, and no one elected
    thereto, the officer to whom the returns are made shall
    declare such election void as to such office only, and shall
    immediately order another election to fill such office; and
    notice shall be given, and such other election shall be held
    in the same manner as the general election."
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Honorable W. L. Edwards, Page 2, o-2862



Article 2953, supra, was enacted in 1876, and was in effect
in 1918 when the 35th Legislature,, 4th Called Session, enacted
Article 8119, Vernon's Civil Statutes, 1925, which reads:

"After a district is so established, upon the petition of a
majority of the real property taxpayers of the district,
praying for the election of three drainage commissioners, the
Court shall immediately order an election for safd purpose at
the earliest legal time, to be held as other elections here-
under. and shall declare the three persons receiving the
highest number of votes to be elected. If the third highest
vote be tied, the Courr~~~shallelect the third commissioner from
those tying for the place. Such commi.ssioners
                                          _   -    so
                                                   ~ e'_ected,
                                                      .  ^ _ when
duly qualified hereunder, shall be the 1ecra.ianu rigntI-uI
drainaTe commissioners for such district within the full
@ziT ng and purpose of this law. Such cammiss
o.lfice un til the~llext regular election for State and county
officers, and shall then and thereafter be elec,ted every two
years at such general election."       (Empk-asis ours)

Article 8113, Vernon's   Civil   statutes,   provides in part:
I,
  ....A11 such elections shall be conducted in the manner
provided by the general election laws, UnhSS   otherwise  Pro-
vid e d . . . . (Emphasis ours]

The "elections" referred to in Article 8113, supra, 4s any
election held under Chapter 7, Title 128, Vernonss Civil
Strtutes, 1925, pertaining to drainage dist~ricts, and which
chapter embodies said Article 8119.

In writing this opinion we are, of course, assuming that a
majority of the real property taxpayers of the district
petitioned for the election of drainage commissioners in the
first insthrIce, as required by Article 8119, aupra.

The Legislature, 2n enacting the underscored portion of
Article 8119, supra, enacted same apparently for the express
purpose of avoiding the provisions of Article 2953, aupra,
by providing for the election by the Commissionerss Court of
the third drainage commissioner,,in the event of a tie vote
for that place.  It matters not whether this was the first
election of such commissioners.   Said Article 8119 does
not provide that this same procedure shall not apply to subse-
quent elections, and we see no good reason why it should not
so apply.
In the absence of the underscored portion of said Articl~e
8119, which specifically provides the procedure to be
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    Honorable W. L. Edwards,, Page 3, O-2862



    followed in the election of the third drainage commissioner
    in the event of a tie vote,, the general election laws
    (Art. 2953) would apply, but in view of such specific prov%-
    sion in said Article 8119, the election of drainage ,r-ommissioners
    is undoubtedly controlled by the provisions of said Article, in
    all matters and things covered by the provisions of sai.3
    Article.  Scherz vs. Telfer, 74 S.W* (2d) 327.

    Therefore, it is our opinion that Article 8119, Vernongs Civil
    Statute, 1925, governs the election of the drainage commis-
    sioners' Court of Victoria County to elect the third draina,ye
    commissioner from the two candidates tying for the third place.

    Trusting that the above satisfactorily disposes of your inquiry,
    we remain

                                     Very truly yours

                                     ATTGRNEY GENZRAL OF TEXAS

                                     BY
                                          s;/'D
                                           / . Burla Daviss
                                               i3. Burie Daviss
                                                      Assistant


    APPROVED DEC. 10, 1940

    s/ Grover Sellers

    FIRST ASSISTANT
    ATTORNEY GENZRAL


    DBD:AW/cg

    APPROVED OPINION COMMITI'EE
    By BWB, Chairman
