ORNEY GENER:AB, 

opinion NO. 0-5807 

Re: Procedure to be followed when 

there is a tie in an independent 

school district election. 

Honorable T. D. Sansing 

County Attorney 

Hansford county 

Spearman, Texas 

Dear Sir: 

Your opinion request of April 4, 1944, reads in part as follows: 

"At a recent; election held by the Morse Independent School 

District in Hansford County, Texas, two of the candidates for 

trustee tied. Three were in the race. From some reason or 

other only one was to be elected. I have checked statutes and 

have been unable to find a solution to this problem. It is my 

opinion, after discussing the matter with our district judge, 

that another election should be called for the purpose of 

electing trustee and that this election should be one where 

anyone who might desire could enter the race. There is some 

doubt in my mind as to whether or not such election should be 

one wherein the ,two who tied should run the tie-off, rather 

than one where anyone might run, as above set out. It strikes 

me, however, that this election is and should be of a general 

nature and not restricted to the two who tied. 

"I am not completely satisfied about the matter, and I 

respectfully request that your office render me an opinion on 

same at the earliest possible time . . s . II 

Your letter does not inform us &the number of scholastics 

contained in the Morse Independent School District, and we have been 

unable to obtain this information from the sources immediately available 

to US. However, in order to make an immediate reply to your request, 

we are assuming that the District contains fewer than five hundred 

scholastics, and this Opinion is predicated upon such assumption. If 

we be mistaken in this assumption, we shall be pleased to render a new 

Opinion upon this subject upon receipt of information as to the actual 

number of scholastics in the District. 

Article 27&a, V.A.C.S., provides as follows: 
Honw~ble T. Il. Sansing, page 2 (0-580'~) 

"All of the ballots for the election of a s&ool. +xustee in cotmnon school distri.ct 6 ahd i,n irxI.~?I:crtdon~t school 

districts having fewer than five hundred (500) scholastics 

as shovn by the last preceding 8cholastL.c census roll approve.i by the State Ilepart!nen,t of E~%l.~:ation and exrlusive 

of tran,sfers shall be printed with black i.m.;i on clear white 

paper, of s~afficient thickness to prevent the mark.s thereon 

being seen through the paper, and be of uniform style and 

dimension; at the top of the ballot ,there shall be printed 

'Official Ballot, _ Indepen.d.ent School District ' , 

the number or name of the schocl district in which the election is to be 'held to be filled in by the judge of the county 

when he orders the ball,ots prin.te.d. Andy person desiring to 

have, his name placed on 6ai.d official ballot, as a candidate 

for the offi.ce of trastee of a common school district or of 

an independent schoo:L di,strict as herei.c. provided shal.1, at 

least ten days before 6ai.d e!.ectixn, file a written request 

with the county judge of the com:ty in wh.ich said district 

is located, requesting that his name be placed on the official ballot, and no candidate shall have his a&me printed on 

said ballot unless he has complied with ,the provisions of 

this Act; provided that five or more resident qualified voters in the district may reqttest that certain names be printed. 

'The county Judge, upon receipt of such written request, and at 

least five days 'before the election, shall have the ballots 

printed as provided in this Act, placing on the ballot the 

name of each candidate who has complied with the terms of this 

Act, and deliver a sufficient number of printed ballots and 

amount of su,pplies n,ecessary for such election to the presiding officer of the election at least one day before said election is to be held, said election supplies, ballots, boxes, and 

tally sheets to be delivered by th.e county judge by mail or in, 

any other manner by him deemed best, to the presiding officer 

of said elfxtion in sealed envelopes which shall not be opened 

'by the e.lect,va toffi.cer until the d.ay of .the election. The expenses tof prin,ting the tallots and de1.ivering same to the presiding offi.cer, together with the other expenses incidental to 

said election shall 'be pai.d o!:t of the available maintenance 

funds belonging to the scho~,l district in which said election 

is held, or to be held. The officers of said election shall i? 

required to use the ballots so fnrnished'by the colulty judge as 

provided herein. The election officers shall make returns of 

said election to the county judge and certify the result in the 

same manner as is now required by law, and said ballot boxes 

which shall have been furnished by local school official6 +a11 

be sent to the county Judge and said election returns ah&be 

canvassed by the Commissioners' Court and together with ball& 

boxes shall be safely preserved for a period of three months 

next after the date of the election." 
Honorable T. D. Sansing, page 3 (O-5807) 

It will be noticed that this statute~,contains no provisions 

governing situations in which an election results in a tie. Consequently, 

the problem will be controlled by the general election laws. Shaw v. 

Taylor, 146 S.W. (2d) 452, Scherz vO Telfer, 74 S.W. (2d) 327. 

With respect to tie votes in elections, the general election 

laws provide in Article 2953, V.A.C.S.: 

"At any election, if there be an equal number of votes 

given to two or more persons for the same office, except 

executive offices as provided in the Constitution, and no 

one elected thereto, the officer to whom the returns are 

made shall declare such election void as to such office 

only, and shall immediately order another election to fill 

such office; and notice shall be given, and such other 

election shall be held in the same manuer as the general 

election." 

Moreover, the first Section of Article 2953a provides: 

"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 nor more than ninety days after the first public notice of such order." 

In your election there was but one position to be filled, and 

two candidates tied for this position, We deem this situation to be 

covered by the provisions of the two statutes last above quoted, and you 

are respectfully advised that the first election should be declared void 

and another election should be ordered. Since the new election is to 

"be held in the same manner as the general election", we feel that persons other than the two candidates who tied are at liberty to enter this 

election, provided they comply with the applicable provisions of the 

law relative to the filing of their candidacies. 

In considering this matter we are not unaware of the case of 

Beeler v. Loock, 135 S.W. (2d) 644 (error dismissed). We consider this 

case to be inapplicable to the instant situation for the reason that 

in the facts there birder consideration seven positions were to be filled, 

and it appears that the candidates who tied were among the seven candidates who received the highest number of votes. The action of the court 

in refusing to declare the election void and to order a new election 

was for the reason that a resolution of the tie was not necessary to 

a determination of the seven persons who had received the highest number 

of votes and who, therefore, were elected. Thus the court said: 

"In the present instance, however, the fact that candidates might receive an equal number of votes, there being 
Honorable T. D. Sansing, page 4 (0-5807) 

seven places, and not merely one, to fill, could not result in the election being void merely because two or more 

may h8ve received an equal number of votes." (Emphasis 

added) 

In the situation under consideration, but one position la to 

be filled, and such position can be filled only by determining the one 

person who received the highest number of votes. This can be done only 

by resolving the tie vote, and Articles 29% and 2p53a (1)direct the 

manner in which such resolution is to be accomplished. 

Trusting that the foregoing satisfactorily answers your inquiry, 

we are 

Very truly yours 

APPROVED APR 11, 1944 

ISI Gee. P. Blackburn 

Acting ATTORNEY GENERAL OF TEXAS 

ATTORNEY GENERAL OF TEXAS 

By /s/ R. Dean Moorhead 

R. Dean Moorhead 

Assistant 

RDM: ff:lm 

APPROVED 

OPINION 

COMMITTEE 

BY /s/ BWB 

CHAIRMAN