## GENERAL ‘??IXE ~‘ITORNEY

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 onthe ,laPtdgy:for.‘filing **but**

### was not Dear Mr. Steakley: received until the following day.

You have requested an opinion concerning your duty tocertify the **name** of Grover Cleveland Damuth for a place onthe ballot at the special election tofill avacancy in the Texas House ofRepresentatives for the 29th Representative District. which is to be held onApril 20, 1957. You state that the application 

### was received in your office by mail onthe morning of March 21. and that the envelope inwhich,tbe application 

### was received bears the postmark “Conroe Tex. Mar 20 330 P M”.

Section 32a ofthe Texas Election Code (Article 4’.10, Vernon’s Texas Election Code) provides that an application for a place onthe ballot at a special election held for the purpose offilling 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 onApril 20was midnight ofMarch 20. Att’y Gen. Op. WW-38 (1957).

Statutory provisions fixing the time for the filing ofap iications are mandatory. Burroughs v. Lyles, 142 Tex. 704, lgl **S.W.2d** 570 71944); 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 190ofthe Election Code, relating tothe filing ofapplications for aplace ona 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 inthis State.” **but** Section 32a makes no such provision with respect to an application for aplace on

### aspecial 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 onthe last day for filing butwhich was not delivered to the party chairman until after that date. At that time the statute regulating filing ofapplications for district offices (Article 3112, R.C.S.) required that the candidate file his application “not later 

### thanthe 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 stateHon. 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 3112, is convincing that a different rule was intended to apply.”

Inview ofthis 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 aplace on~ the special election ballot,

SUh4MARY An application for a place ona special election ballot, filed under the provisions of Section 32a ofthe Texas Election Code, is,nottimely 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 WILSON Attorney General

Assistant