ORNEY GENERAL 

OF TEXAS 

We have given careful consideration to the above described question presented to us in your letter of April 1.8. 

‘We wish to thank you for the excellent citation of authorities 

relating to this question submitted in your letter, together 

with your discussion thereof. 

The forthcoming election for United States Senator 

to fill the vacancy Fa that office is provided for by the following provision con’tained in the 17th Amendment to the Federal 

Constitutionr 

When vacancies happen in the representation 

of any State in the Senate, the executive authority 

of such State shall issue writs of election to fill 

such vacancies. . . .I1 

This amendment was adopted in 1913 and in conformity 

therewith the Legislature of Texas at the first called session 

of the same year enacted a law which now appears as Chapter 12, 

of Title 30, kticles 3086-3099, inclusive, Revised Civil Statutes of Texas 

vacancies in i 

1925, which provides the procedure for filling 

he office of the United States Senator from Texas. 

Article 3097 contained in Chapter 11, Title 50, Revised Civil 

Statutes of Texas, 192.5, describes the type of election to be 

held on June 28, 1941, as a “special” election in the followings 

language : 

“Bny person desiring to have his name appear upon 

the official ballot as a candidate for United States 

‘Senator at any special election held for the purpose 

of filling a vacancy in the United States Senate, when 

no party primary is held, may do so by presenting his 

application to the Secretary of State which shall set 

forth: . . . .‘I 
Hon. Tom Seay, page 2 (O-3438) 

The general rules governing the conduct of all elections were enacted by statute passed by the first called session in 1905 commonly referred to as the Terre11 Election Law, 

which law as subsequently amended from time to time is now embodied in Title 50, Articles 2923 et seq., Revised Civil Statutes, 192.5. The Texas Supreme Court in Beans P. Waples, 108 

Texas 140, 187 S.W. 191, held that the Ter,ell Election Law of 

1905 and the statute providing for the election of Senators 

enacted in 1913, which was compiled in 1925 as Articles 3086- 

3099, inclusive, should be construed together. .In this case, 

the court speaking through MrO Justice Hawkins, at p. 148, with 

reference to these statutes, declared: 

“Because those two statutes deal with the one 

general subject of party primaries for the making of 

party nominations, and are3 therefore, essentially 

cognate, and because, obviously, the latter was intended to supplement the former, thereby completing 

one general scheme of legislation upon a particular 

subject, and because the latter statute presents 

strong and conclusive intrinsic evidence of a legislative purpose and intent that, in so far as their 

phraseology will permit, the two statutes are to be 

treated, construed, applied and enforced as one, we 

regard it as too plain for argument that, accordingly, said two statutes should be read and construed 

together. Certainly they are statutes in wteria, and in their interpretation the settled rules 

of statutory construction which are applicable in 

such instances should prevail.” 

The court in the Beane v. Waples case reached this 

conclusion in part upon Section 3 of the 1913 Act, which appears 

as Article 3088, Revised Civil Statutes, 1925, and reads as fol1OWSl 

“Art. 3088. Every law regulating or in any manner governing elections or the holding of primaries 

in this State shall be held to apply to each election 

ore nomination of a candidate for a United States Senator so long as they are not in conflict with the Constitution of the United States or of any law of statute enacted by the Congress of the United States regnlating the election of United States Senators or the 

provisions of this law, The returns from any election 

held for United States Senator shall be made, the result ascertained and declared, a certificate of election issued, as provided for the election of representatives in Congress, by this title.” 
Hon. Tom Seay, page 3 (O-3438) 

In 1925 the Terre11 Election law and the Senatorial 

Election Law were both codified in Title 50, R.C.S., 1925, which 

provides an additional reason why these two laws should be construed together and their various provisions reconciled. 

The opinions in Wallis v. Williams, by the Supreme 

Court, 101 Tex. 395, 108 S.W. 153, and Schers v. Telfer by the 

Austin Court of Civil Appeals, 74 S.W. (26) 327, annouhce certain criteria to distinguish between “general” and “special” 

elections. We believe, however, that these criteria have no application in the present instance where the Legislature has in 

Article 3097, supra, expressly declared an election of the type 

here under consideration to be a special election. 

You specifically ask our opinion as to the application 

of the question of whether this is a special or a general election to bticle 2938, Revised Civil Statutes, 1925, and the provisions of the Texas Liquor Control Act relating to the sale of 

liquor and beer on election day. 

Article 2937, R.C.S. prescribes that in voting precincts having less than one hundred qualified voters, there shall 

be two election judges and two clerks. Article 2938 provides for 

four election judges and four clerks in precincts having one huhdred or more qualified voters, but contains the following except ion: 

Vrovided, that in all elections held under the 

provisions of this title, other than general elections, local option elections and primary elections, 

the officers to be appointed by the commissioners 

court to hold said elections shall be a presiding 

judge, and assistant judge and two clerks, . . . ‘a 

Since the election under consideration cannot be classified as a general election, local option election, or primary election, we believe that this proviso applies in the instant case so 

that it is our opinion that only two election judges and two clerks 

are required in all precincts to conduct the forthcoming senatorial elect ion. 

The Texas Liquqr Control Act regulates the sale of liquor and beer on election day. Section 25 of Article 666, Penal 

Code of Texas, 1925, provides in part: 

“It shall be unlawful for any person to sell or 

deliver any liquor: 

“(a) . . . 
Hon. Tom Seay, page 4 (O-3438) 

“(b) On any general primary or general election 

day between the hours of seven o’clock a.m. and eight 

o’clock p.m. . . .” 

Section lob of Article 667, Penal Code of Texas, 1925, 

provides: 

“It shall be unlawful for any person to make any 

sale of beer anywhere in this state on the day of any 

general primary election or general election held in 

this state between the hours of seven a.m. and eight 

p.m. on the day . . .* 

Since both of these provisions prohibiting the sale of 

liquor or beer on election days refer specifically to “general” 

elections, it is our opinion that neither of them apply to the 

forthcoming election for United States Senator since the Legislature has expressly declared it to be a l’speciali’ election. 

We believe that the case cited in your letter, Estes v. 

State, 48 Arizona 21, 58 Pacific (2) 753, is persuasive of the 

conclusion we have reached herein. In that case, the Supreme Court 

of Arizona held that an election to fill the vacancy occuring in 

the office of State Representative to the United States Congress 

was a “special election” to the extent that it was not “a regular 

general election” within the meaning of the Constitutional provision providing for the submission of referendum questions to the 

voters. 

We likewise concur in the suggestion made in your letter 

that an election might be “general” in one sense, and “special” in 

another sense, or as applied to a different statute. Consequently, 

we are limiting this opinion to the precise questions asked by you, 

relating to Article 2938 Revised Civil Statutes 1925 and 

%;lon 25 of gPticle 666 and Section lob of iLrticle 6b7, PeAal 

Code of Texas. 

APPROVED MAY 21, 1941 Yours very truly 

/s/ Grover Sellers 

FIRST ASSIST&?T ATTORNNY GENERAL ATTORNEY GZNERAL OF TEXAS 

APPROVED: OPINION COMMITTRR By /s/ Walter R. Koch 

BY RLK, CHAIRM4N Walter R. Koch, Assistant 

WK:mp rwb