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, and related 

Dear Qovernor Daniel: questions. 

Your request for an opinion reads as follows: 

“Resignations from the 56th Legislature have occurred, 

one from a Senatorial District and two from the Legislative 

Districts. 

“From my study of past occurrences, it seems to have 

been the practice not to call special elections to fill 

such vacancies when another election or the primary election date Is relatively close at hand. Section 13 of 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, 32 and 32a of the Texas Election Code 

provide several time limitations for calling elections, the 

dates on which elections are to be held, and the deadline 

for candidates to file for a place on the ballot. 

“I request your opinion on the following questions: 

“1. Under Section 13 of 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 

on which the vacancy becomes effective? 

“2. Does the Texas Election Code impose any limitation 

on the period of time that may elapse between the issuance 

of a writ of election by the Governor and the date set for 

the special election? 
Honorable Price Daniel, page 2 (WW-728) 

"3. May the 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 90 days after the vacancy is 

, 

effective?” 

Article III, Section 13 of the Texas Constitution provides: 

“When vacancies occur In either House, the Governor, 

or the person exercising the power of the Governor, shall 

issue writs of election to fill such vacancies; and should 

the Governor fail to issue a writ of election to fill such 

vacancy within twenty days after it occurs, the returning 

officer of the district in which such vacanc,y may have happened, shall be authorized to order an election for that 

purpose. ” 

The first portion of this seotion makes it 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 must be 

answered in the light of the wording of this provision and of the Governorls immunity from compulsory process. 

The early 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 from judicial process, there wasno way to oompel him to perform 

this duty, and this alternative authority was given to the returning 

officer in order to provide a method 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 do so within twenty days after the vacancy occurs, This authorization is a permissive one: the returning officer may order the 

election but it is not mandatory that he do so. If it-had been intended to make the calling of the election mandatory within this period,of time, the logical way to achieve that result would have been to 

provide that the Governor shall Issue the writs within twenty days 

after the vacancy occurs and to place upon the returning officer a 

positive, enforceable duty to order the election If the Governor fails 

to do so. Since this was not done, we are of the opinion that the provision authorizing but not requiring the returning officer to call the 

election cannot be taken as a mandate 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 any election to fill an unexpired term shall be ordered immediately. The 

(Article 

a plicable portion’of Section 32 of 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. Where vaaanaies 

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 some question as to whether the Legislature can restrict 

a discretionary power placed In the Governor by the Constitution, but 

we doubt that legislation prescribing definite tlme Intervals for carrying out Section 13 of Article III would be held unaonstifkutional. So 

in the absence of a court opinion holding Section 32 of the Election 

Code unconstitutional, we advise you that in our oplnlon It Is applicable to this situation. However, the word “Immediately” Is flexible 

when consideredagainst a particular situation. The call 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 Code would depend 

among other 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 13 of Article III of the Constitution and Section 32 of 

the Election Code when taken together place upon the Qovernor the duty 

of calling an election to fill vacancies in order that every district 

may be represented, and In 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 may elapse between the issuance of a writ of election by the Qovernor and the date set for the 

special election. 

(Preliminarily, It should be pointed out that the term”writ of 

election” as used in Article III, Section 13 of the Constitution and 

in the foregoing question is equivalent to the proolamatlon ordering 

the election or the order for the election under Sections 24 and 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 26 of the Election Code.) 

‘Ihe following sections of the Election Code are 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 and mailed to the several county judges.“’ 

Section 28 (Art. 4.05, Vernon’s Election Code): 

“The county judge shall cause notice of a general ::‘. 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 a vacancy oacurs In the State Senate or House of 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):“’ 

“Where special elections are authorized by this Act, 

the officer authorized by law to’order elections shall 

make such order fixing the time of the election not less 

than twenty (201 nor more than ninety (90) dajra after the 

first public notice of such order. * * *” 

Section 32a (Art. 4.10, Vernon’s Election Code): 

“Any person desiring his name to appear upon the 

offfcfal ballot at any special election held for the purpose of fillgng a vacancy, when no”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 and O-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 on which an election could be held after a vacancy 

occurs9 Attorney General’s Opinion m-46 (1957). did not take this 

statute into acoount, but we are of the opinion that, it is appllcable to these specfal elections. 

2 The first sentence of this statute formerly required posting 

of notice thirty days before the election. This period was’ reduced 

to twenty days in 1951, and now coincides 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 more than ninety days after the first public notice of 

such order. While Section 24 speaks 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 32 means 

the date on which the notice of election is posted, ss,provided In 

Section 28. Section 24 fixes a minimum period of thirty-five days 

between the date of the order and the date of the election, but It 

does not fix a maximum limit on this period. Section 28 requires 

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 any given number of 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. 

Where a statute requires performance of an act but does not fix 

a specific time for performance, it must be performed within a reasonable time. The object of Section 32 Is to fill the vacancy promptly, 

and the essential act to accomplish this purpose Is the holding of the 

election. Obviously, the ordering of the eleutlon without a prompt 

performance of other necessary acts would be contrary to the intent 

of the statute. The requirements for an Immediate ordering of the election and for holding the election within ninety days after notice encompass the Intent that publlu notice of the election should be given 

in due course and within 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 may be called 

for the same day 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 and second questions, we shall 

answer this question solely from the standpoint of whether a special 

election to fill a vacancy In the Legislature may be held on the same 

day as other elections. 

A number of prior Attorney General's opinions have held, expressly 

or implledly, that a special election to fill a vacancy In the Legislature may be held on the same day and at the same place,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). We ooncur In these holdings that there 

is no legal obstacle to holding the spealal election at the same time 

and place as other elections# Of oourse, the oonsent~ of the authority 

having control of the other election would be necessary for a comblnation of the elections. With respect to some types of elections, 
. . . 

: 

I 

Honorable Price Daniel, page 6 (Ww-728) 

there'bould be matters of policy and practicability to be considered, 

but these are matters extraneous to the legality of combining the 

elections. 

Whether the same election officers could conduct both elections 7' 

would depend on the nature of the other eleotlon and the quallficatlons and method of appointment of the officers. Different conslderations enter into this questfon, depending on whether the officers for 

the other election are appointed and paid by the county, by some other 

political subdivision, or by a political 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 members of the Legislature along with a party primary is doubtful 

if Attorney General's Opinions O-2539 and v-1448 are followed, Since 

you did not ask this question, we did not review these, opinions. 

SUMMARY 

'Article III, Section 13 bf the Texas Constitution 

does not make It mandatory that the Governor call a 

special election to fill a vacancy In the Legislature 

within any specified time after the vacancy occurs, but 

Section 32 of the Texas Election Code (Article 4.09, 

Vernon18 Election Code) makes it his duty to call the 

election Immediately. However, the word 'lmmedlately'f 

Is flexible when considered against a particular bituatlon. The call should be Issued at the first reasonable 

opportunity, taking into consideration the necessity for 

filling a particular office. Where the regular seseion 

has already expired, the definition of '%mmedlately" 

would depend, among other things, upon the timing of one 

or more specfal sessions. 

The Election Code requires that the election be held 

not less than 20 nor more than 90 days after posting of 

the election notice, but does not impose any specified 

limit on the period of time that may elapse between issuance of the order for the election and posting of the 

notice. However, it is implied that the notice will be 

: posted in due course and within a reasonable time after _1' issuance of the order. 

A special election to fill a vacancy in the LegUlature may be called for the same day as other elections to 

be held In the dlstrlot, including primary elections, and 

it may be held at the same place 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, 

WILL WILSON 

Attorney ffeneral of Texas 

MKW:bh 

APPROVED: 

OPINION COMMITTEE: 

W.V. ffeppert, Chairman 

Houghton Brownlee,.Jr. 

J.C. Davis, Jr. 

Leon F. Pesek 

C.X. Richards 

B.H. Tlmmins, ,Jr. 

REVIEWED FOR THE ATTORNEY (tEXERAL 

BY: 

Leonard Passmore