### ORNEY GENER:AB,

opinion NO. 0-5807 Re: Procedure to be followedwhen there is a tie in an independent school district election. HonorableT. D. Sansing CountyAttorney 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 IndependentSchool 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 statutesand have been unable to find a solutionto this problem. It ismy opinion, after discussingthe matter with our district judge, that another election shouldbe called for the purpose of electing trustee and that this election shouldbe one where anyone who might desire could enter the race. There is some doubt in my mind as to whether or not such election shouldbe 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 shouldbe of a general nature and not restricted to the two who tied.
"I am not completely satisfiedabout the matter, and I respectfully request that your office renderme an opinion on same at the earliestpossible time
. . s . II
Your letter does not informus &the number of scholastics contained in the Morse IndependentSchool District, and we have been unable to obtain this informationfrom the sources immediatelyavailable 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 shallbe pleased to render a new Opinion upon this subjectupon receipt of informationas 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,nirxI.~?I:crtdon~t school districtshaving fewer than five hundred (500) scholastics as shovnby the last preceding 8cholastL.c census roll approve.i

by the State Ilepart!nen,t of E~%l.~:ation

and exrlusive of tran,sfers

shallbe printed with black i.m.;i on clearwhite paper, of s~afficient thickness to prevent the mark.sthereon being seen through the paper, and be of uniform style and dimension;at the top of the ballot ,thereshallbe printed 'OfficialBallot,

_ Indepen.d.ent School District', the number or name of the schocl district in which the election is to be 'held to be filled inby 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 officialballot, 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 inwh.ichsaid district is located, requestingthat his name be placed on the official ballot, and no candidate shall have his a&me printed on saidballot unless he has compliedwith ,the provisions of this Act; provided that

five or more resident qualifiedvoters in the districtmay reqttest that certainnames be printed. 'Thecounty Judge, upon receipt of suchwritten request, and at least five days 'before the election, shallhave the ballots printed as provided in this Act, placing on the ballot the name of each candidatewho has compliedwith the terms of this Act, and deliver a sufficientnumber 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 deliveredby th.e county judgeby mail or in, any othermanner by him deemed best, to thepresiding officer of said elfxtion in sealed envelopeswhich shallnot be opened 'by the e.lect,va

toffi.cer

until the d.ay

of .theelection. The expenses tof

prin,tingthe tallots and de1.ivering same to the presiding offi.cer,

togetherwith the other expenses incidentalto said election shall 'bepai.do!:t of the availablemaintenance 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'bythe colultyjudge as provided herein. The election officers shallmake returns of said election to the county judge and certify the result in the samemanner as isnow requiredby law, and saidballot boxes which shall have been furnishedby local school official6 +a11 be sent to the county Judge and said election returns ah&be canvassedby the Commissioners'Court and together with ball& boxes shallbe safelypreserved 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 controlledby 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 immediatelyorder another election to fill such office; and notice shallbe given, and such other election shallbe held in the samemanuer as the general election." Moreover, the first Section of Article 2953a provides: "Where special elections are authorizedby this Act, the officer authorized 'bylaw 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 situationto be coveredby the provisions of the two statutes last above quoted, and you are respectfullyadvised that the first election shouldbe declaredvoid and another election shouldbe ordered. Since the new election is to "be held in the samemanner as the general election",we feel that persons other than the two candidateswho tied are at liberty to enter this election,provided they comply with the applicableprovisions of the law relative to the filing of their candidacies.

In consideringthis 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 inapplicableto the instant situation for the reason that in the facts there birder consideration seven positionswere to be filled, and it appears that the candidateswho tied were among the seven candidates who received the highest number of votes. The action of the court in refusing to declare the electionvoid and to order a new election was for the reason that a resolution of the tie was not necessary to a determinationof the sevenpersons 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 beingHonorable T. D. Sansing,page 4 (0-5807)

sevenplaces, and not merely one, to fill, could not result in the electionbeing void merely because two or more may h8ve received an equal number of votes." (Emphasis added)
In the situationunder consideration,but one position la to be filled, and suchposition can be filled only by determining the one person who received the highest number of votes. This canbe done only by resolving the tie vote, and Articles 29% and 2p53a (1)directthe manner in which such resolution is to be accomplished.

Trusting that the foregoing satisfactorilyanswers 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