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March21, 1963

Honorable HenryWade Opinion No. C- 40 Criminal District Attorney of Dallas County Re: Whether an Individual can Dallas, Texas have his nameon the ballot for county school trustee andfor trustee of an independent school district in the sameelection, and Dear Sir: related question.

Youhave requested anopinion on the following questions: 1. Cana person have his nameon the ballot as a candidate for the office of county school trustee of Dallas County andalso for the office of trustee of the Dallas Independent School District, in the sameelection?

2. In the event that he cannot, can hewithdraw his candidacy for one office andremain on the ballot for the other office? Thefact. situation out of which these questions arise is stated In your opinion request as follows:

“OnApril 6, 1963, there will be conducted In the City of Dallas, Texas, andthe County of Dallas, Texas, anelection to determine the County School .Board Trustees andthe Dallas Independent School District Board Trustees. TheCounty of Dallas and the Dallas Independent School District have agreed to hold ajoint election for said Boards of Trustees as permitted byArticle 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. Thevoting on April 6, 1963, will be conducted bythe use of voting machines with all of the candidates’ namesfor both .Boards appearing on each voting machine. However, the absentee voting.

Honorable HenryWade, 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.

“Anindividual has filed applications as a candidate for trustee for both the Dallas Independent School District Board andthe 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 sametime, 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 sameperson cannot hold twolncompatible offices. 34 Tex.Jur. 351, Public Officers, Sec. 18. In Attorney General’s Opinion No. O-1398 (1939), it washeld that the offices of county school trustee andtrustee of an independent school district are incompatible and that the same person maynot hold both offices simultaneously. Weegree 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~ ++* Thetime for such election shall be the first Saturday in April of each year; the order for the election of county school trustees to bemadeby the county judge at least thirty (30) days prior to the date of said election, andwhich order shall desfgnate as votfng places withen each commonor independent school district the samevoting place QPplaces at which votes are cast for the District Trustees of said commonand 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 HenryWade, 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. Theelection for County School Trustees shall be held on the first Saturday in April of each year, andthe election officers holding elections for trustees in each district in the county shall hold the election for County School Trustees at the sametime andplace as the election for district trustees.” Under these statutes, an election for county school trustees mustbe conducted at the sameplace andby the same election officers as an election for trustees of an independent school district which is held on the sameday.

Youhave stated that the County of Dallas andthe Dallas Independent School District have a reed to hold a joint election as permitted byArticle 276c. & This statute reads as follows:

%henever an election for membersof 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 anyJunior college district, regional college district or other type of college district, is t,obe held on the sameday andwithin all or part of the same territory as anyother 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, andpaying the expenses of such elections mayagree to hold the elections jointly andmay 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. Theagreementmayprovide 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 maycombine twoor more of the sets of county or district offices to be voted on, provided that all of the offices and candidates. .

Honorable HenryWade, page 4 (C- 40 )

for each district or political subdivision shall appear on the sameballot. Oneset of election officers maybe appointed to conduct the joint election, andanyperson 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, andreturn forms for the various elections maybe combined In anymanner convenient andadequate to record andreport the results of each election, andone set of ballot boxes andone stub box maybe used for receiving all ballots andballot stubs for the joint election. Returns onjoint or separate forms maybe madeto, andthe canvass madeby, each officer, board or body designated by law to receive and canvass the returns for each election, or one of such officers, boards andbodies maybe designated to receive and canvass the returns for the joint election andto report the results of each election to the proper authority. Wherethe 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 anofficer or board designated by law to receive andpreserve 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 makethe election of county school trustees a part of the election for district trustees, although these statutes donot require use of a single ballot form and donot authorize a complete fusion of duties in conducting the election andcanvassing the returns as is permitted byArticle 2746~. Whenthe election is held under the provisions of Article 2746c, that statute further serves to untte the election.

Article 6.01 of Vernon's Election Codeprovides 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 andpreserve the purity of the ballot.Honorable HenryWade,page 5 (C- 40 )

* * * Thenameof 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 sameperson; or (b) whena candidate has been duly nominated for the office of President or Vice-President of the United States andalso for an office requiring a state-wide vote for election. * * *'I In the brief accompanying your request, you makethe following statement, with which weare In agreement:

"Thepurpose of the above statute would appear to be to prevent a person from becoming a candidate for more than one office whenhe could only accept one of them. This places on the candidate the burden of makinga choice of which office he wishes to run for before the election, rather than allowing himto run for both, andIf elected to both, makinghis choice after the election." If, at the election to be held in the Dallas Independent School District onApril 6, the namesof the candidates for the offices of county school trustee and district school trustee are placed on a single ballot form, weare of the opinion that Article 6.01 would clearly prohibit the placing of the same person's nameon the ballot as a candidate for the twooffices. Att'y Gen. Ops. O-2640 (1940) andWW-493(1958). Weare further of the opinion that a person cannot have his nameappear as a candidate for both offices, regardless of whether the offices are listed on a single ballot form or on separate ballot forms. Thelaw requires that the offices be filled by election at the sametime andplace, 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. Theoccurrence 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. Tomakethe prohibition in Article 6.01 turn on such a technicality as the physical makeupof the ballot forms would be thwartfng the intent of the statute, andweare unwilling to construe it so narrowly. Wetherefore answer your first question in the negatfve.Honorable HenryWade, page 6 (C- 40 )

Your second question is whether the individual can withdraw his candidacy for one office andremain 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. andthat the election Is nowIn Skelton v. Ya‘tes, 131 Tex. 620, 119S.W.2d 91 (193f;rogress. ). Weare not informed as to what action has been taken inregard to placing this lndlvldual~s nameon the ballots, andweshall therefore state our opinion on each of the four possible situations which maynowexist.

ThemannerIn which this individual becamea candidate for these offices wasby filing anapplication 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. Theonly statute which might apply Is Article 13.56 of the Election Code, which provides that a nominee maydecline his nomination upto ten days before the election ,if It be for

a city office andupto twenty days before the election In other cases. In Williams v. Huntress, 153 Tex. 443, 272S.W.2d 87 (19%). the SunremeCourt i

I ~_- ,, n construinn Article 13.56 held that - _ where a party nominee for an office hadbeen subsequently nominated for a second office to be voted on at the sameelection andhe could not lawfully have his nameprinted on the ballot for both offices, he hadto decline the nomination for the first office at least twenty days before the election in order to have his nameprinted 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 bewithdrawn at least twenty days before the election in order for the candidate to have his nameplaced 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, weare of the opinion that ordinarily these candidates maynot withdraw their applications after absentee voting begins. However, weare of the opinion that an appllcatlon filed under Article 2745~maybe withdrawn before commencementof absentee voting. If, more than twenty days before the election, thfs Individual withdrew his application for one of the offices, weknowof noprohibition agafnst placing his name on the ballot for the other office. Therefore, if this individual's namenowappears as a candidate for only one of these offices, it maylawfully remain on the ballot for that office.Honorable HenryWade,page i' (C- 40 )

Your opinion request reveals that the CountyJudge of Dallas County, whohas the duty of certifying the candidates for county school trustee, had sought your opinion as to the legality of placing this Individual's nameon 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 makingupthe ballot informed the individual that his namecould 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 nameoff the ballot for both offices, weare of the opinion that he nowhas noright to demandthat his namebe 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, weare 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 nameappear under both offices, he maystill choose which office he wishes to run for. Also, if ballots have already been printed, listing the Individual as a candidate for both offices, weare of the opinion that the ballots should be revised so as not to violate Article 6.01, andthat the lndlvidual maystill choose which office he wishes to run for.

SUMMARY Theoffice of county school trustee and trustee of an independent school district are Incompatible, andthe sameperson maynot hold both offices at the sametime. Aperson maynot have his nameprinted on the ballot as a candidate for the office of county school trustee andalso as a candidate for trustee of an independent school district, where both offices are to be filled at an election held on the sameday.“.

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Honorable HenryWade, page 8 (C- 40 )

If a person whohas filed for both offices withdraws his application for one of the offices, he mayhave his nameplaced on the ballot for the other office. Yours very truly, WAQffONER

CARR Attorney General of Texas

MKW:afg APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Marietta McGregor Payne John Reeves Paul Robertson APPROVED

FORTHEATTORNEY

GENERA& BY: Stanton Stone

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