## TaE ATTORNEY GENEOF TEXAS

April 18, 1939

Hon. Tom F. Coleman, Jr. CountyAttorney hngellna County ILIfkin,

Texas Opiniori No. O-610 May the Commisslone~s Court ., Of Angelina County legallypay for all Angelina legally&g the DrorJeFexDeI1ses lncui‘rd in incui‘rea~ Dear Sir: RIS:

the gpecial eiectlonhelaunderthe authority of Articl&, 1133 CmI1134, Revised Ciiril St&td%s,‘1925, for the incorporation of the city of Huntington?

Your re@iest dated April 5, 1939 for ari"oplnlon frbm' the Lttorney General on the following question, has been received:

'(* l l As to whettieror not.'the C&nmFs- &lion&G CoUrt of Angelina County can~~legally

.. pay~all proper expenses Incurred in the special election held.under the authority of Articles 1133 and 1134,Vernon's Revised Civil Statutes, '~for the incorporationofthe city of Huntington."

Articles 1133 and 1$3&,~'R.C.S., 1925 referred to in your request, are set out in full:

"ArtWle 1133. &'& Incorporated. When a town or village may cbntain in6tie than four hundreds and less than'.tenthotisand Inhabittints, it may.~beIncorporatedas a totln or village In the manner prescribed in this chapter."

"Article1134."'

Mode of incorworation.^ If the lnhabltan~f?ui:h toijnor village desire to be so 1ncorporated;at l‘easttwenty tiesldents

thereof,who would be'quallfl& voters i&d&r the"provlslonsof this chapter, shall file
en application for that purpose in the ofcice of. the'.couhtyjudge.

of the county Inwhich the town or: village is situated, stating.the'~boundarles.of the proposed town or vlllage, the n&tie by whichHon. Tom F. Coleman, Jr., .April18, 1939, page 2 0-610

it is to be knownwhen incorporated,and accompany the samewith a plat of the proposed town or'vlllage Including thereinno territory except that which is Intendedto be used for strictly town purposes. If any.town or village be situated on both 'sidesof a line dividing two counties, applicationmay be maae^to the county"judge'or either county In which a portion of said town
or village is located, inmannei? and form as herein providea. A new'election shallnot be ordered in less than one year."

The electionprovided for in the two articles above quoted isundoubtedly a special election.



## 9RULING'CASE LAW. p. 978

"Any electionwhich Is not regularly held for the electloncf officers or for some other"purpose.whichshall come before the Alectors at regular fixed intervals Is a special election. ,It.Lsopposedfinirieaning more particularly to regular than to general elections, and so where elections are~classifledas"genera1 and special, a regular annual municipal election cannot be-included in the latter class, but must be'treated as a general election. l +',*Where the constitutionprovides for the organization of
a city under general laws .'whenever a xc&jority

-' of the electors voting at a general election shall So determine' the election to decide the question IS, still a special election although decided at a general electlon,"anda statuteproviding for the calling of a special election to determine the question Is not lnconslstentwith the constItutlona1 r,equirement, and this is true notwithstanding the fact that the special election is to be held on the same day as the general election. The use of the word 'special'in such a case is ,surplusage,as the electionnot being a regular ge;uzr;y,,onecould not be other than special.

2O'CORPUS JURIS, D. 56

~"Aspecial election lsone provided for by law,under special circumstances. It is an election held to supply a vacancy in office before the expiration of the'full term for which the incumbentwas elected,noran election atHon. Tom F. Coleman, Jr., April 18, 1939, page 3 0-610

which some question or proposition is submitted to the vote of the qualified electors, or an election for someparticularemergency. + * l +'I

The county judgehas charge of the details of the election for the purpose of determiningwhether or not a town
or village containingmore than four hundred and less than ten thousand inhabitants Is to be incorporatedand is empowered to apbolnt the necessary election officersby Article 1136, which reads as follows:

"Article 1136. Election order If satisfactoryproof ismade that the town or vlllage.containsthe requisite number of Inhabitants, the county judge shallmake an order for holding an election on a day therein stated and at a place designatedwith in the town or s village for the purpose of submitting the question~,~ to a vote of the people. He shall appoint an officer to preside at the election,who shall select two judgesand two clerks to assist in holding It. After a previous notice of ten,dayS,by posting advertisement thereof at three public places In the town or village, the election shall be held in the manner prescribed for holding elections in other cases."

In view of the fact that the election for the incorporatlon of the city of HUntingtonwas a special election, hrticle 29% is applicable. It provides for expenses for election supplies and reads as follows:

"Article2996. ExDenses for election SUDDlieS. All expenses incurred In providing voting booths, stationery,official ballots, wooden or rubber stamps,tally sheets, polling lists, instructioncards,ballot boxes, envelopes,,sealingwax and all other supplies required for conductinga general or sp,ecialelection shallbe paid for by the county, except the cost of supplyingbooths for cities. All accounts for supplies furnished or services rendered shall first be approved by the Commissioners

### court, except th8 accounts for voting booths for Cities.!' According to the provisions of said article, all expenses connected with the mechanism of a special election for the purpose of incorporatinga city within the population rang8 of four hundred~toten thousand inhabitants shall be paid for by th8 countywithin which it Is situated.Hon. Tom F. Coleman, Jr., April 18, 1939, page 4 0-610

Article 2943, R.C.S. of 1925, as 

### amended by Acts of the 45th Legislature,p. 591, Chapter 295, par. 1, 1937, sets forth the scale of compensation for judgesand clerks of both general and special elections. It stipulates that payment shall be made by the county treasurer of the countywhere the election is held upon order of the CommissionersCourt. We quote the statuteas amended:

"Article2943. Pay of judges and clerks. Judges and Clerks of general and special elections shall be paid Three Dollars ($3)a 

### aas each. and Thirty (36) Uents per hour each-for any time in
excess of a day's.work as herein defined; provided that in all counties having a population in excess of thrree

hundred and fifty-five thousand (355,000) inhabitants,according to the last preceding or any future Federal Census, such Judges~and Clerks shallbe aid Five Dollars ($5)a day each and Fifty (5Op Cents per hour each for any timi in excess of a day's,

work as herein defined. The 

### hag8 who delivers the returns 'ofelection immediately after the votes have been counted shallbe paid Two Dollars ($2) for that service,provided the : polling place of his precinct Is at least two (2) miles from the courthouse, and provided also he shallmake returns-ofall election suppliesnot used when he makes return'of the'election. Ten (10)working hcurs shallbe.consider&d a day within the meaning,of this Article. .The compensation of Judges and Clerks of general and special elections shall be paid by the County Treasurer of the countywhere such services are renderedupon order of the Commissioners Court of such county."
Since an election. for the incorporationof a city within the four hundred to’ten thousand populationrange is a special election, and since articles 2996 and 2943 provide for payment of expenses of materials and servicesused In such special electionby the county, it is our opinion that there Is statutory authorization for the payment of the expenses of the election for the incorporation of the city of Huntington by the county of Angelina.

We have noted Article 2997, R.C.S.which says that "The expense of all
same are held."

city elections shall be paid by the city inwhich It is our opinion that this article does not govern the situation of a special electionunder the supervision of county authoritieswhere the question of incorporationitself is being voted upon by the citizens of a given area within the county. In this case the area to b8 incorporated, subsequently the city of Huntington, ,wasnot a city within the purview ofHon. Tom F. Coleman, Jr., April 18, 1939,page 5 O-610

Article 2997 prior to the time of the election. Article 2997 is applicable to municipal elections only, and the city of Huntingtonwas not subject to the provisions of said article,until after the incorporation election.

The expenses incurred in the electionheld for the purpose of incorporatingthe city of Huntingtonwere Incurredby the county under articles 1133, 1134 and 1136, R.C.S., 1925.

We hold, therefore, that Articles 2943 and 2996 are controllingand that the county of Angelinamay legally pay all proper expenses incurred in the special electionheldunder the authority of Articles 1133 and 1134, R.C.S., 1925, for the lncorporation of the city of Huntington.

Trusting that the above fully answers your inquiry,

we are

Yours very truly

ATTORNEY GRNRRAL OF TEXAS

By s/Dick Stout Dick Stout Assistant

DS:omb:wc

APPROVED: s/Gerald C. Mann " h!PTOFtNEY

GENERALOF TEXAS