THEATTORNEY GENERAL 

Honorable Emmett Wilburn 

County Attorney 

Center, Texas 

Dear sir: 

OFTEXAS 

March 18, 1939 

Opinion No. O-17 

Re: Special Election After Tie Vote 

in Common School Trustee Election 

We are in receipt of your letter of February 21, 1937, in which 

'you request the opinion of this department upon the followlug question: 

"Is a new election necessary 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 office by 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) 278 S.W. 283, reversed on other'grounds 

(Com. App. 1926) 286 S.W. 161; State vs. Jordan (T.c.A. 1930) 28 S.W. 

(2d) 921. 

Articles 2745, 2746 and 2746a, R.C.S. 1925, as amended, deal 

with common school trustee elections, and Article 2745 provideS that. 

"all vacancies shall be 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 specific provision 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 following provisions: 

"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 election void as to such office only, and 
Honorable Em&t Wilbmm, Page 2 (O-17) 

shall Inmediately order mother election to fill such office; 

and notice shall be given, and such other election shall be 

held In the sme manner as the general election." 

It was stated in Scherz vs. Telfer (T.C.A. 1934) 74 S.W. (2d) 

"The election of such trustee is, of course, undoubtedly 

controlled by the provision of Articles 2745, 2746 and 2746a, 

in all matters and things covered by the provisions of said 

Articles. But it is manifest, we think, that in all other 

matters not covered by said Articles the provisions of the 

Terre11 Election Law would apply." 

The court in this case accordingly held that since election 

contests are not treated in the statutes relating to common school trustees, but are specifically provided for in the general election laws, 

contests of common school trustee elections are referable to the general 

election laws. It should be 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 instructed to set a date for holding 

a new election to fill the "vacancy", as provided in Article 3054, R.C.S. 

1925, which is the general statute applicable to election contests. 

Although ordinarily the 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 

286 S.W. 1.61, the election may 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 should be called, as provided by Art. 2953, aud should be 

conducted as directed in Articles 2745, 2746, and 2746a, R.C.S. 1925, 

as amended; however, such election would not necessarily be held on the 

first Saturday in April. 

Yours very truly 

APPROVEB: 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF.TEXAS 

A!LTOlNEY GENERAL-OF TEXAS 

By /s/ Cecil C. Cammack 

Cecil C..Cammack 

Assistant 

ccc:FG:I&¶ 

O.K. 

/s/'@xL 

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