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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 the method of determining the third drainage 

commissioner of Drainage 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 for by Article 

8119 R.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,. 

and we hereby request the opinion of your department to the 

manner in which the thfrd commissioner shall be elected. 

"Article 81.19 would seem to provide that in this instance 

the third Commissioner is to be chosen by the Commissioner"s 

Court from the two who tied for third place, although thisstatute to our mind is somewhat ambiguous. This was not the 

first election to be held in the District, as it has been in 

existence for a number of years." 

Article 2953, Revised Civil Statutes, provides: 

"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 manner as the general election." 
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Honorable W. L. Edwards, Page 2, o-2862 

Article 2953, supra, was enacted in 1876, and was in effect 

in 1918 when 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 to be elected. If the third highest 

vote be tied, the Courr~~~shall elect the third commissioner from 

.ssioners so e'_ected, when _ - ~ . ^ _ 

those tying for the place. Such commi 

duly qualified hereunder, shall be the 1ecra.i anu rigntI-uI 

drainaTe commissioners for such district within the full 

@ziT 

o.lfice un 

ng and purpose of this law. Such cammiss 

til the~llext regular election for State and county 

hen and thereafter be elec,ted every two 

election." (Empk-asis ours) 

officers, and shall t 

years at such general 

Article 8113, Vernon's Civil statutes, provides in part: 

I, . . ..A11 such elections shall be conducted in the manner 

provided by the general election laws, UnhSS otherwise Provid e d . . . . (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, and which 

chapter embodies said Article 8119. 

In writing 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. It matters not whether this was the first 

election of such commissioners. Said Article 8119 does 

not provide that this same procedure shall not apply to subsequent elections, and we see no good reason why it should not 

so apply. 

In the absence of the underscored portion of said Articl~e 

8119, which specifically provides the procedure to be 
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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 in view of such specific prov%- 

sion in said Article 8119, the election of drainage ,r-ommissioners 

is undoubtedly controlled by the provisions 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 of the drainage commissioners' Court of Victoria 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