### THEATTORNEY GENERAL

Honorable Emmett Wilburn County Attorney Center, Texas Dear sir: 

### OFTEXAS

March 

### 18,1939 OpinionNo. O-17 Re: Special ElectionAfter Tie Vote in Common SchoolTrustee Election

We are in receipt of your letter of February 21, 1937, in which 'yourequest the opinion of this departmentupon the followlug question:

"Is a new electionnecessary this year, when at a common school district trustee election last year (1938), the trustee whose term was expiring received a tie vote with his opponent, and the old trustee is continuing in officeby virtue of'not having a successor,and iu this connection the trustee servFng did not qualify again,but merely held over by virtue of not k+ving a successor." A school trustee who holds over until hls.successor is duly elected, and qualified is not merely a de facto trustee,but is held to be a de jure officer under Texas Constitutiou,Art. XVI, Section 

### 17. cowan vs. capps (T.c.A. 1925) 

### 278S.W. 

### 283,reversed on other'grounds (Com.App. 

### 1926)

286S.W. 

### 161;State vs. Jordan (T.c.A. 1930) 

### 28S.W. (2d) 921. Articles 

### 2745,2746and 2746a,R.C.S. 1925, as amended, deal with common school trustee elections,and Article 2745 provideS that. "all vacancies shallbe filled by the County Board of Trustees for the remaFnder of the term in which the vacancy occurs." In this connection, it is noted that there is no specificprovision for the procedure to be followed in case of a tie vote in a common school trustee election.

Title 50, Elections,R.C.S. 1925, contains the followingprovisions: "Art. 2923. The provisions of this title shall apply to all elections held in this State, except as otherwise.provided herein. "Art. 2953. 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 oue elected thereto, the officer to whom the returns are made shall declare such electionvoid as to such office only, andHonorable Em&t Wilbmm, Page 

### 2 (O-17)

shall Inmediatelyorder mother election to fill such office; and notice shallbe given, and such other election shallbe held In the sme manner as the general election." It was stated in Scherz vs. Telfer (T.C.A. 1934) 

### 74S.W. (2d)

"The election of such trustee is, of course,undoubtedly controlledby the provision of Articles 2745, 

### 2746and 

### 2746a, in all matters and things coveredby the provisions of said Articles. But it is manifest,we think, that in all other matters not coveredby saidArticles the provisions of the Terre11 Election Law would apply." The court in this case accordinglyheld that since election contests are not treated in the statutesrelating to common school trustees, but are specificallyprovided for 

### in the 

### general election laws, contests of common school trustee elections are referable to the general election laws. It shouldbe noted that although there was a "vacancy" within the definition laid down In Clark vs. Wornell (T.C.A. 1933), 

### 65 S.W. (2d) 

### 350,the trial c&t was instructedto set a date for holding a new election to fill the "vacancy",as provided inArticle 

### 3054, R.C.S. 1925, which is the general statuteapplicable to election contests.

Although ordinarilythe time provided for calling or holding an. e1ectio.n

is mandatory, aqd must be strictly followed,we are of the opinion that in view of the holding IuCowan vs. Capps (Coin. App. 

### 19261, 0 

### 286S.W. 

### 1.61,

the electionmay yet be properly held. See also 9 R.C.L.; p. 999, Sec. lg.

It is the opinion of this departnient that under the facts stated, a new election shouldbe called, as provided by Art. 2953, aud shouldbe conducted as directed inArticles 2745, 

### 2746, and 

### 2746a, R.C.S. 1925, as amended; however, such electionwould not necessarilybe held on the first Saturday inApril. Yours very truly APPROVEB: /s/ Gerald C. Mann ATTORNEY GENERAL OF.TEXAS A!LTOlNEY GENERAL-OFTEXAS By /s/ Cecil C. Cammack

Cecil C..Cammack Assistant ccc:FG:I&¶ O.K. /s/'@xL

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