TXm ATTOIQNEY GENERAL OF TEXAS

Honorable Price Daniel Opinion No, W-728 Governor of Texas Austin, Texas Re: Whether a special election to fill a vacancy in the Leglslature must be called within any specified time, andrelated Dear Qovernor Daniel: questions. Your request for anopinion reads as follows:

“Resignations from the 56th Legislature have occurred, one from a Senatorial District andtwofrom the Legislative Districts.

“Frommystudy of past occurrences, it seems to have been the practice not to call special elections to fill such vacancies whenanother election or the primary election date Is relatively close at hand. Section 13of Article III of the Texas Constitution gives authority to the Governor to Issue writs of election, further stipulating that if this is not done within twenty days after the vacancies occur, the returning officer of the District is authorized to order an election. Articles 24, 32and 32a of the Texas Election Code provide several time limitations for calling elections, the dates onwhich elections are to be held, andthe deadline for candidates to file for aplace on the ballot.

“I request your opinion on the following questions:

“1. UnderSection 13of Article III, is it mandatory for the Governor to call special eleotions to fill vacancies in the Legislature within any specified time after the date onwhich the vacancy becomes effective?

“2. Does the Texas Election Codeimpose any limitation on the period of time that mayelapse between the issuance of awrit of election by the Governor and the date set for the special election?Honorable Price Daniel, page 2 (WW-728)

"3. Maythe special election be called for the same day as other elections to be held in the district, including separate primary elections, if such other election dates are more than 90days after the vacancy is , effective?” Article III, Section 13of the Texas Constitution provides:

“Whenvacancies occur In either House, the Governor, or the person exercising the power of the Governor, shall issue writs of election to fill such vacancies; andshould the Governor fail to issue awrit of election to fill such vacancy within twenty days after it occurs, the returning officer of the district in which such vacanc,y mayhave happened, shall be authorized to order anelection for that purpose. ” Thefirst portion of this seotion makesit the duty of the Governor to call elections to fill vacancies In the Legislature, but it does not expressly prescribe any specified time within which the eleotion shall be called. Whether the last portion of the seotion implies a duty to call the election within twenty days after the vacancy occurs mustbe answered in the light of the wording of this provision andof the Governorls immunity from compulsory process. Theearly Constitutions did not contain the provision authorizing the returning officer to call the election if the Governor ~failed to do so. This provision first appeared in the Constitution of 1866, and has been brought forward In subsequent Constitutions, Obviously, it was added in the realization that, under the rule exempting the Governor fromjudicial process, there wasno wayto oompel himto perform this duty, andthis alternative authority wasgiven to the returning officer in order to provide amethod for calling the eleotion if the Governor failed to act. It is provided that the returning officer ,.,:,
“shall be authorized” to order the election in the event the Governor fails to doso within twenty days after the vacancy occurs, This authorization is apermissive one: the returning officer mayorder the election but it is not mandatory that he doso. If it-had been intended to makethe calling of the election mandatory within this period,of time, the logical wayto achieve that result would have been to provide that the Governor shall Issue the writs within twenty days after the vacancy occurs andto place upon the returning officer a positive, enforceable duty to order the election If the Governor fails to do so. Since this wasnot done, weare of the opinion that the provision authorizing but not requiring the returning officer to call the election cannot be taken as amandate that the election shall be called within the twenty-day period. Although the Constitution does not fix any specified time within which the Governor is to act, the Legislature has provided by statute that anyelection to fill anunexpired term shall be ordered immediately. The (Article aplicable portion’of Section 32of the Texas;Election Code

fi.Og, Vernon’s Election Code) provides as follows:Honorable Price Daniel, page 3 (w-728)

“Election to fill unexpired term. Wherevaaanaies whiah are to be filled by election oaaur In a alvil office, an election shall Immediately be ordered to fill the unexpired term.” There is somequestion as to whether the Legislature can restrict a discretionary power placed In the Governor by the Constitution, but wedoubt that legislation prescribing definite tlme Intervals for carrying out Section 13of Article III would be held unaonstifkutional. So in the absence of a court opinion holding Section 32of the Election Codeunconstitutional, weadvise you that in our oplnlon It Is applicable to this situation. However, the word “Immediately” Is flexible whenconsideredagainst a particular situation. Thecall should be issued at the first reasonable opportunity, taking Into consideration the necessity for filling a particular off ’lae. Thus, In the present situation where the regular session has already expired, the definition of “immediately” In Seation 32 of the Eleation Codewould depend amongother things upon the timing of one or more special sessions. While the calling of a special session with several districts unrepresented would not Impair the legality of a session, It seems clear that Section 13of Article III of the Constitution andSection 32of the Election Codewhentaken together place upon the Qovernor the duty of calling anelection to fill vacancies in order that every district maybe represented, andIn view of the basic American doctrine of no taxation without representation, this would be espeoially true if taxes are to be voted at a special session. Your second question is whether the Texas Eleatlon Code Imposes any limitation on the period of time that mayelapse between the issuance of awrit of election by the Qovernor andthe date set for the special election. (Preliminarily, It should be pointed out that the term”writ of election” as used in Article III, Section 13of the Constitution and in the foregoing question is equivalent to the proolamatlon ordering the election or the order for the election under Sections 24and 32 of the Election Code, rather than the writ of election nhiah Is delivered to the presiding officer of an elect&on precinct under Section 26of the Election Code.)

‘Ihe following sections of the Election Codeare pertinent to this question. Section 24 (Art. 4.01, Vernon’s Election Code):

“Notice shall be given to the people of all elections for State and district offlcers, * l *. Such notices shall be by proclamation by the ffovernor ordering the eleation, not less than thirty-five (35) days before the election,..Honorable Price Daniel, page 4 (ww-728)

Issued andmailed to the several county judges.“’ Section 28 (Art. 4.05, Vernon’s Election Code):

“The county judge shall cause notice of ageneral ::‘

.F:... election or any special election to be published by posting notice of election at each precinct twenty (20) days before the election; which notice shall state the time of holding the election, the office to be filled, or the question to be voted on; * * *. If avacancy oacurs In the State Senate or Houseof Representatives during the session of the Legislature, or within ten (10) days before it convenes, then twenty (20) days notice of t ip;$pl election’to fill such vacancy shall be sufficient,

Section 32 (Art. 4.09, Vernon’s Election Code):“’

“Wherespecial elections are authorized by this Act, the officer authorized by law to ’order elections shall makesuch order fixing the time of the election not less than twenty (201 nor morethan ninety (90) dajraafter the first public notice of such order. * * *” Section 32a (Art. 4.10, Vernon’s Election Code):

“Anyperson desiring his nameto appear upon the offfcfal ballot at any special election held for the purpose of fillgng a vacancy, whenno ”party primary has been held, may do so by presenting his application to the proper zL authority. +* * .:
.

“Such application must be ffled not later than thirty (30) days before any such special election, * * *.’

‘Attorney General’s Opinions O-4690 andO-4905 (1942) held that this statute applies to special elections to fill vacancies In the office of State Representative or State Senator. In discussing the earliest date onwhich an election could be held after avacancy occurs9 Attorney General’s Opinion m-46 (1957). did not take this statute into acoount, but weare of the opinion that, it is appllcable to these specfal elections. 2Thefirst sentence of this statute formerly required posting of notice thirty days before the election. This period was’reduced to twenty days in 1951, andnowcoincides with the twenty-day period which is permitted under the second sentenae.Honorable Price Daniel, Page 5 NW-728)

Section 32 requires that the election be held not less than twenty nor morethan ninety days after the first public notice of such order. While Section 24speaks of the Governor's proclamation asp"notice * l * to the people," It Is quite clear from the other statutory provisions that "first public notice" In Section 32means the date onwhich the notice of election is posted, ss,provided In Section 28. Section 24fixes aminimumperiod of thirty-five days between the date of the order andthe date of the election, but It does not fix amaximumlimit on this period. Section 28requires the county judge to cause notice of the election to be posted at least twenty days before the date of the election, but It does not require that the notice be posted within anygiven numberof days after he receives the order. It is seen from these provisions that the Election Code does not fix a specified time within whloh the election must be held after It is ordered. Wherea statute requires performance of an act but does not fix a specific time for performance, it must be performed within a reasonable time. Theobject of Section 32 Is to fill the vacancy promptly, andthe essential act to accomplish this purpose Is the holding of the election. Obviously, the ordering of the eleutlon without aprompt performance of other necessary acts would be contrary to the intent of the statute. Therequirements for anImmediate ordering of the election andfor holding the election within ninety days after notice encompass the Intent that publlu notice of the election should be given in due course andwithin a reasonable time after Issuance of the order, and that the election order should fix a date for the election not more than ninety days after posting In due course. Your third question Is whether the special election maybe called for the sameday as.other elections to be held In the district, lneluding separate primary eleatlons, If suoh other election dates are more than 90 days after the vacancy Is effeotive. I' Since the time limit for holding the special election hae been covered in our answer to the first andsecond questions, weshall answer this question solely from the standpoint of whether a special election to fill avacancy In the Legislature maybe held on the same dayas other elections. Anumberof prior Attorney General's opinions have held, expressly or implledly, that a special election to fill avacancy In the Legislature maybe held on the samedayandat the sameplace,as other elections, Including a party primary, but the special election must be conducted as a separate election, with separate ballots, ballot, boxes, poll lists, returns, etc. Attly Qen. Ops., Book 382 pp. 18, 48 (lg38), o-2539 (lg4o), 0-2853 (lg4o), 0-3473 (19411, o-4872 (19421, v-1367 (1951), v-1448 (1952). Weooncur In these holdings that there is no legal obstacle to holding the spealal election at the sametime andplace as other elections# Ofoourse, the oonsent~of the authority having control of the other election would be necessary for a comblnation of the elections. With respect to sometypes of elections,. . . :

I Honorable Price Daniel, page 6 (Ww-728)
there'bould be matters of policy andpracticability to be considered, but these are matters extraneous to the legality of combining the elections. Whether the sameelection officers could conduct both elections 7' would depend on the nature of the other eleotlon andthe quallficatlons andmethod of appointment of the officers. Different conslderations enter into this questfon, depending onwhether the officers for the other election are appointed andpaid by the county, by someother political subdivision, or by apolitical party (In the case of a primary election). For a discussion of this questlon,we refer you to the Attorney General's opinions cited above. Whether there would be any substantial saving of election cost in holding a special election for membersof the Legislature along with aparty primary is doubtful if Attorney General's Opinions O-2539 andv-1448 are followed, Since you did not ask this question, wedid not review these, opinions. SUMMARY 'Article III, Section 13bf the Texas Constitution does not makeIt mandatory that the Governor call a special election to fill avacancy In the Legislature within any specified time after the vacancy occurs, but Section 32of the Texas Election Code (Article 4.09, Vernon18 Election Code) makesit his duty to call the election Immediately. However, the word 'lmmedlately'f Is flexible whenconsidered against aparticular bituatlon. Thecall should be Issued at the first reasonable opportunity, taking into consideration the necessity for filling aparticular office. Wherethe regular seseion has already expired, the definition of '%mmedlately" would depend, amongother things, upon the timing of one or more specfal sessions. TheElection Coderequires that the election be held not less than 20nor more than 90days after posting of the election notice, but does not impose any specified limit on the period of time that mayelapse between issuance of the order for the election andposting of the notice. However, it is implied that the notice will be : posted in due course andwithin a reasonable time after _1'issuance of the order.

Aspecial election to fill avacancy in the LegUlature maybe called for the samedayas other elections to be held In the dlstrlot, including primary elections, and it maybe held at the sameplace as other electlo,ns, but it should be conducted as a separate election with separate ballots, ballot boxes, returns, etc. Whether the 8ame 8et I.. . .

Honorable Price Daniel, Page 7 (w-728)

of election officers could conduot both eleatlons would depend on the nature of the other election,

: Very truly youra, WILLWILSON Attorney ffeneral of Texas

MKW:bh APPROVED: OPINIONCOMMITTEE: W.V. ffeppert, Chairman Houghton Brownlee,.Jr. J.C. Davis, Jr. LeonF. Pesek C.X. Richards B.H. Tlmmins, ,Jr. REVIEWED

FORTHEATTORNEY

(tEXERAL BY: Leonard Passmore