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Honorable W. L. Edwards County Attorney Victoria County Victoria, Texas Dear Sir: Opinion NO. 

### o-2862 Re: Election of third drainage commissioner, Drainage District No. 

### 3,Victoria County, Texas We have recelved~your letter of recent date requesting our opinion upon themethod of determining the third drainage commissioner ofDrainage District No. 

### 3,Victoria County, Texas. For factual background of.your request, we quote from your. letter as follows: "At the past General Election Commissioners for the above Drainage District were voted on, as provided forby Article 

### 8119R.C.S. There were four in the race. Of these, two received first and second place, and consequently are duly elected. However, the remaining two tied for third place,. andwe hereby request the opinion ofyour department to the manner inwhich the thfrd commissioner shall be elected. "Article 

### 81.19

would seem toprovide that in this instance the third Commissioner is tobe chosen by the Commissioner"s Court from the two who tied for thirdplace, although thisstatute to ourmind is somewhat ambiguous. This was not the first election tobe held in theDistrict, as ithas been in existence for anumber of years." Article 2953, Revised Civil Statutes, provides: "At any election, if therebe an equal number ofvotes given to two ormore persons for the same office, except executive offices asprovided in the Constitution, andno one elected thereto, the officer towhom the returns aremade shall declare such election void as to such office only, and shall immediately order another election to fill such office; and notice shallbe given, and such other election shall be held in the samemanner as the general election."- .

Honorable W. L. Edwards, Page 2, 

### o-2862

Article 

### 2953, supra, was enacted in 

### 1876,and was in effect in 

### 1918when the 35th Legislature,,4th Called Session, enacted Article 

### 8119,Vernon's Civil Statutes, 1925, which reads: "After a district is so established, upon the petition of a majority of the real property taxpayers of the district, praying for the election of three drainage commissioners, the Court shall immediately order an election for safd purpose at the earliest legal time, to be held as other elections hereunder. and shall declare the three persons receiving the highest number of votes tobe elected. If the third highest vote be tied, the Courr~~~shall elect the third commissioner from

.ssionersso e'_ected,when

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_ those tying for the place. Such commi duly qualified hereunder, shallbe the 1ecra.i anu rigntI-uI drainaTe commissioners for such district within the full @ziT o.lficeun ng and purpose of this law. Such cammiss til the~llextregular election for State and county

hen and thereafter be elec,tedevery two election." (Empk-asisours) officers, and shall t years at such general Article 8113, Vernon's Civil statutes, provides inpart: I,

....A11 such elections shall be conducted in themanner provided by the general election laws, UnhSS otherwise Provid d e .... (Emphasis ours] The "elections" referred to in Article 

### 8113, supra, 4s any election held under Chapter 

### 7, Title 

### 128,Vernonss Civil Strtutes, 

### 1925,pertaining to drainage dist~ricts,andwhich chapter embodies said Article 

### 8119. Inwriting this opinion we are, of course, assuming that a majority of the real property taxpayers of the district petitioned for the election of drainage commissioners in the first insthrIce,as required by Article 

### 8119,aupra. The Legislature, 2n enacting the underscored portion of Article 

### 8119, supra, enacted same apparently for the express purpose of avoiding the provisions of Article 2953, aupra, by providing for the election by the Commissionerss Court of the third drainage commissioner,, in the event of a tie vote for that place. Itmatters not whether this was the first election of such commissioners. Said Article 

### 8119does not provide that this same procedure shall not apply to subsequent elections, andwe seeno good reason why it should not so apply. In the absence of the underscored portion of said Articl~e 8119, which specifically provides theprocedure tobe. -

Honorable W. L. Edwards,,Page 3, 

### O-2862

followed in the election of the third drainage commissioner in the event of a tie vote,,the general election laws (Art. 

### 2953)would apply, but inview of such specific prov%- sion in said Article 

### 8119,the election of drainage ,r-ommissioners isundoubtedly controlled by theprovisions of said Article, in all matters and things covered by the provisions of sai.3 Article. Scherz vs. Telfer, 74 S.W* (2d) 327. Therefore, it is our opinion that Article 

### 8119,Vernongs Civil Statute, 1925, governs the election ofthe drainage commissioners' Court ofVictoria County to elect the third draina,ye commissioner from the two candidates tying for the third place. Trusting that the above satisfactorily disposes of your inquiry, we remain Very truly yours ATTGRNEY GENZRAL OF TEXAS
BY s;/'D Burla Daviss /
.i3.Burie Daviss

Assistant

APPROVED DEC. 10, 

### 1940 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENZRAL
DBD:AW/cg APPROVED OPINION COMMITI'EE By BWB, Chairman