‘??IXE ~‘ITORNEY GENERAL 

OF TEXAS 

Aus- 11. m 

March 25. 1957 

Honorable Zollic Steakley 

Secrctwy d state 

Austin, Texas 

Opinion No. WW -75 

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 special 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 filing 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 7 1944); McWaters 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 ballot. In Burroughs v. Lyles, the court had before it an application of a candidate 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 chairman until after that date. At that time the statute regulating filing of applications 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 Texas Election Code, is ,not timely filed where it is mailed on 

the last day for filing but is not delivered to the proper officer until the next d>y. 

APPROVED: 

OPINICIN COMMITTEE 

H. Crady Chandler, Chairman 

Yours very truly, 

WILL W ILSON 

Attorney General 

Assistant