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March 21, 1963 

Honorable Henry Wade Opinion No. C- 40 

Criminal District Attorney 

of Dallas County Re: Whether an Individual can 

Dallas, Texas have his name on the ballot 

for county school trustee 

and for trustee of an 

independent school district 

in the same election, and 

Dear Sir: related question. 

You have requested an opinion on the following 

questions: 

1. Can a person have his name on the ballot as a 

candidate for the office of county school trustee of Dallas 

County and also for the office of trustee of the Dallas Independent School District, in the same election? 

2. In the event that he cannot, can he withdraw his 

candidacy for one office and remain on the ballot for the other 

office? 

The fact. situation out of which these questions arise 

is stated In your opinion request as follows: 

“On April 6, 1963, there will be conducted In 

the City of Dallas, Texas, and the County of Dallas, 

Texas, an election to determine the County School 

.Board Trustees and the Dallas Independent School 

District Board Trustees. The County of Dallas and 

the Dallas Independent School District have agreed 

to hold a joint election for said Boards of Trustees 

as permitted by Article 2746c, V.A.C.S. However, we 

understand that no formal resolution has been adopted 

as to whether a single ballot or separate ballots 

will be used. The voting on April 6, 1963, will be 

conducted by the use of voting machines with all of 

the candidates’ names for both .Boards appearing on 

each voting machine. However, the absentee voting 
. 

Honorable Henry Wade, page 2 (C- 4C) 

will be conducted separately; i.e., the Dallas 

Independent School District will conduct their own 

absentee voting, while the County Clerk will conduct 

the absentee voting for the County School Board. 

“An individual has filed applications as a 

candidate for trustee for both the Dallas Independent School District Board and the Dallas County 

School Board. ” 

Article XVI, Section 40 of the Texas Constitution, 

which prohibits a person from holding two civil offices of 

emolument at the same time, does not prevent a person from 

holding the two offices here Involved, since the office of 

trustee of an independent school district is not an office of 

emolument. However, regardless of whether one or both offices 

are offices of emolument, the same person cannot hold two lncompatible offices. 34 Tex.Jur. 351, Public Officers, Sec. 18. 

In Attorney General’s Opinion No. O-1398 (1939), it was held 

that the offices of county school trustee and trustee of an 

independent school district are incompatible and that the same 

person may not hold both offices simultaneously. We egree with 

that holding. Accordingly, if the individual fn question were 

elected to both offices, he could accept only one of them. 

Article 2676, Vernon’s Civil Statutes, which is the 

general statute pertalnfng to the electeon of county school 

trustees, contains the following provisions: 

“Section 1~ + + * The time for such election shall be the first Saturday in April of each 

year; the order for the election of county school 

trustees to be made by the county judge at least 

thirty (30) days prior to the date of said election, 

and which order shall desfgnate as votfng places 

withen each common or independent school district 

the same voting place QP places at which votes are 

cast for the District Trustees of said common and 

independent school districts, respectively. The 

election officers appointed to hold the election 

for District Trustees in each of‘said school dfstricts, respectively, shall hold this election for 

county school trustees.” 
. . 

Honorable Henry Wade, page 3 (C-40 ) 

Article 2790e, V.C.S., which Is the 

lng to the election of county school trustees 

a population of more than 350,000, contains a 

as follows: 

statute pertainIn counties having 

similar provision, 

“Sec. 13. The election for County School 

Trustees shall be held on the first Saturday in 

April of each year, and the election officers 

holding elections for trustees in each district 

in the county shall hold the election for County 

School Trustees at the same time and place as the 

election for district trustees.” 

Under these statutes, an election for county school 

trustees must be conducted at the same place and by the same 

election officers as an election for trustees of an independent school district which is held on the same day. 

You have stated that the County of Dallas and the 

Dallas Independent School District have a reed to hold a 

joint election as permitted by Article 27 & 6c. This statute 

reads as follows: 

%henever an election for members of the 

county board of trustees, the board of education, 

board of trustees or other governing board of any 

school district, or the board of regents, board 

of trustees or other governl.ng board of any Junior 

college district, regional college district or 

other type of college district, is t,o be held on 

the same day and within all or part of the same 

territory as any other of the elections herefn 

enumerated, the various officers, boards or bodies 

charged with the duty of appointing the election 

officers, providing the supplies, canvassing the 

returns, and paying the expenses of such elections 

may agree to hold the elections jointly and may 

agree upon the method for allocating the expenses 

for the joint election. Resolutions reciting the 

terms of the agreement. shall be adopted for each 

of the participating boards or bodies. The agreement may provide for use of a single ballot form 

at each polling place, to contain all the offices 

to be voted on at that pollfng place, or for separate ballot forms which may combine two or more of 

the sets of county or district offices to be voted 

on, provided that all of the offices and candidates 
. . 

Honorable Henry Wade, page 4 (C- 40 ) 

for each district or political subdivision shall 

appear on the same ballot. One set of election 

officers may be appointed to conduct the joint 

election, and any person otherwise qualified who 

Is a resident of either of the districtsor political subdivisions holding the election shall be 

eligible to serve as an election officer. Poll 

lists, tally sheets, and return forms for the 

various elections may be combined In any manner 

convenient and adequate to record and report the 

results of each election, and one set of ballot 

boxes and one stub box may be used for receiving 

all ballots and ballot stubs for the joint election. Returns on joint or separate forms may be 

made to, and the canvass made by, each officer, 

board or body designated by law to receive and 

canvass the returns for each election, or one of 

such officers, boards and bodies may be designated 

to receive and canvass the returns for the joint 

election and to report the results of each election to the proper authority. Where the counted 

ballots for two or more of the elections are 

deposited in a single ballot box, the box containing the counted ballots shall be returned to the 

officer or board designated in the agreement, 

which shall be an officer or board designated by 

law to receive and preserve the counted ballots 

for one of the eLections constituting a part of 

the joint electlon." 

In our opinion, the effect of Articles 2676 and 2790e 

is to make the election of county school trustees a part of the 

election for district trustees, although these statutes do not 

require use of a single ballot form and do not authorize a complete fusion of duties in conducting the election and canvassing 

the returns as is permitted by Article 2746~. When the election 

is held under the provisions of Article 2746c, that statute 

further serves to untte the election. 

Article 6.01 of Vernon's Election Code provides in 

part as follows: 

'In all elections by the people, the vote 

shall be by offfcial ballot, which shall be numbered and elections so guarded and conducted as to 

detect fraud and preserve the purity of the ballot. 
Honorable Henry Wade, page 5 (C- 40 ) 

* * * The name of no candidate shall appear more 

than once upon the official ballot, except (a) as 

a candidate for two (2) or more offices permitted 

by the Constitution to be held by the same person; 

or (b) when a candidate has been duly nominated 

for the office of President or Vice-President of 

the United States and also for an office requiring a state-wide vote for election. * * *'I 

In the brief accompanying your request, you make the 

following statement, with which we are In agreement: 

"The purpose of the above statute would 

appear to be to prevent a person from becoming 

a candidate for more than one office when he 

could only accept one of them. This places on 

the candidate the burden of making a choice of 

which office he wishes to run for before the 

election, rather than allowing him to run for 

both, and If elected to both, making his choice 

after the election." 

If, at the election to be held in the Dallas Independent School District on April 6, the names of the candidates for 

the offices of county school trustee and district school trustee 

are placed on a single ballot form, we are of the opinion that 

Article 6.01 would clearly prohibit the placing of the same 

person's name on the ballot as a candidate for the two offices. 

Att'y Gen. Ops. O-2640 (1940) and WW-493 (1958). We are further 

of the opinion that a person cannot have his name appear as a 

candidate for both offices, regardless of whether the offices 

are listed on a single ballot form or on separate ballot forms. 

The law requires that the offices be filled by election at the 

same time and place, and it would be ignoring the purpose of 

the prohfbitfon in Article 6.01 to construe it as applying only 

where a single ballot form is used. The occurrence which the 

statute is designed to prevent--election of a person to an 

office which he cannot accept --is as objectionable in the one 

case as in the other. To make the prohibition in Article 6.01 

turn on such a technicality as the physical makeup of the ballot 

forms would be thwartfng the intent of the statute, and we are 

unwilling to construe it so narrowly. We therefore answer your 

first question in the negatfve. 
Honorable Henry Wade, page 6 (C- 40 ) 

Your second question is whether the individual can 

withdraw his candidacy for one office and remain on the ballot 

for the other office. 

It should be noted at the outset that the period for 

absentee voting in the forthcoming election began on March 17, 

the twentieth dav before the election date of ADd.1 6. and that 

the election Is now In Skelton v. Ya‘tes, 131 Tex. 

620, 119 S.W.2d 91 (193 f; 

rogress. 

). We are not informed as to what 

action has been taken inregard to placing this lndlvldual~s 

name on the ballots, and we shall therefore state our opinion 

on each of the four possible situations which may now exist. 

The manner In which this individual became a candidate 

for these offices was by filing an application for each office, 

as provided In Article 2745~~ V.C.S. This statute is silent 

on the matter of withdrawal of candidacy after the application 

is filed. The only statute which might apply Is Article 13.56 

of the Election Code, which provides that a nominee may decline 

his nomination up to ten days before the election ,if It be for 

a city office and up to twenty days before the election In other 

cases. In Williams v. Huntress, 153 Tex. 443, 272 S.W.2d 87 

(19%). the Sunreme Court i I ~_- ,, n construinn Article 13.56 - _ held that 

where a party nominee for an office had been subsequently nominated for a second office to be voted on at the same election 

and he could not lawfully have his name printed on the ballot 

for both offices, he had to decline the nomination for the 

first office at least twenty days before the election in order 

to have his name printed on the ballot for the second office. 

If Article 13.56 applies to a candidate filing under Article 

2745~ (i.e., if he Is a "nominee" wlthln the terms of Article 

13.56), it would follow that the application first filed would 

have had to be withdrawn at least twenty days before the election in order for the candidate to have his name placed on the 

ballot for the second office, unless the particular circumstances 

of your fact situation call for a different result. We doubt 

that Article 13.56 applies to candidates filing under Article 

2745c, but even so, we are of the opinion that ordinarily these 

candidates may not withdraw their applications after absentee 

voting begins. However, we are of the opinion that an appllcatlon filed under Article 2745~ may be withdrawn before commencement of absentee voting. If, more than twenty days before the 

election, thfs Individual withdrew his application for one of 

the offices, we know of no prohibition agafnst placing his name 

on the ballot for the other office. Therefore, if this individual's name now appears as a candidate for only one of these 

offices, it may lawfully remain on the ballot for that office. 
Honorable Henry Wade, page i' (C- 40 ) 

Your opinion request reveals that the County Judge 

of Dallas County, who has the duty of certifying the candidates for county school trustee, had sought your opinion as 

to the legality of placing this Individual's name on the 

ballot for both offices, but it does not reveal whether he had 

taken a position In the matter. If the officers having the 

duty of making up the ballot informed the individual that his 

name could not appear as a candidate for both offices and that 

he must choose between the offices but he refused to do so, and 

thereupon they proceeded with the printing of the ballots and 

left his name off the ballot for both offices, we are of the 

opinion that he now has no right to demand that his name be 

printed on the ballot for either office. 

If the officers charged with preparation of the 

ballots were uncertain as to the law and did not resolve the 

question before the expiration of the time within which an 

application ordinarily could have been withdrawn, we are of 

the opinion that the regular deadline for withdrawal does not 

apply. Accordingly, If printing of the ballots has been held 

In abeyance awaiting a resolution of the candidate's right to 

have his name appear under both offices, he may still choose 

which office he wishes to run for. Also, if ballots have 

already been printed, listing the Individual as a candidate 

for both offices, we are of the opinion that the ballots should 

be revised so as not to violate Article 6.01, and that the lndlvidual may still choose which office he wishes to run for. 

SUMMARY 

The office of county school trustee and 

trustee of an independent school district are 

Incompatible, and the same person may not hold 

both offices at the same time. 

A person may not have his name printed on 

the ballot as a candidate for the office of 

county school trustee and also as a candidate 

for trustee of an independent school district, 

where both offices are to be filled at an election held on the same day. 
“. . 

Honorable Henry Wade, page 8 (C- 40 ) 

If a person who has filed for both offices 

withdraws his application for one of the offices, 

he may have his name placed on the ballot for 

the other office. 

Yours very truly, 

WAQffONER CARR 

Attorney General of Texas 

MKW:afg 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Marietta McGregor Payne 

John Reeves 

Paul Robertson 

APPROVED FOR THE ATTORNEY GENERA& 

BY: Stanton Stone 

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