THEA’ITORNEYGENERAL 

OF TEXAS 

AUSTIN II. TEW’ILL WILSON 

A-RNEY GEXA’ERAI. . 

March 5, 1957 

Honorable Price Daniel 

Governor of Texas 

Austin, Texas 

OPINION NO. ww-46 

Re: Date for special election 

to fill a vacancy in the 

House of Representatives. 

Dear Governor Daniel: 

You have requested an opinion on whether a special 

election to fill a vacancy in the office of State Representative 

for the 29th District resulting from resignation of the incumbent 

could be called for April 2, the date on which a special election 

to fill a vacancy in the United States Senate is to be held. 

You ask, further, in event the election could not be called for 

April 2, what is the earliest date on which it could be held. 

It Is our understanding that the Incumbent tendered 

his resignation to you on March 3, but that it has not yet 

been accepted. Generally speaking, a vacancy in an office 

caused by,resignation of the incumbent does not occur until 

the resignation Is accepted. Sawyer v. City of San Antonio, 

149 Tex. 408, 234 S.W.2d 398 (1950). However, the calling 

of an election to fill a vacancy In the office would be tantamount to acceptance. 

You have called our attention to Sections 28 and 32 

of the Texas Election Code (Article6 4.05 and 4.09, Vernon's 

EleCtion Code). Section 32 provides that where a vacancy to 

be filled by election occurs in a civil office, an election 

shall immediately be ordered to fill the unexpired term, and 

that the order for the election shall fix the time of the 

election "not less than twenty nor more than ninety days after 

the first public notice of such order." Section 28 ,requires 

that notice of the election be posted twenty days before the 

election. Since 27 days remain between the present date and, 

April 2, it is seen that under these two statutes there would 

be sufficient time for these acts to be performed with reference 

to an election called for April 2. However, an election now 
ordered for April 2 would have to be held as a write-in 

election without having the names of any candidates printed 

on the ballot. This would result because of the provisions 

of Section 32a of the Election Code (Article 4.10, Vernon's 

Election Code), which reads in part as follows: 

'Any person desiring his name to appear 

upon the official ballot at any special election 

held for the purpose of filling a vacancy, when 

no party primary has been held, may do so by 

presenting his application to the proper 

authority. . . . 

"Such ap lication must be fried not later 

than thirty (30 days before any such special 

election a . . ti (Emphasis supplied) 

This statute fixes midnight of the thirty-first day 

preceding the election (not counting the day of the election) 

as the deadline for candidates to file for a place on the 

ballot. Att'y Gen. Op. No. WW-38 (1957). Even assuming that 

candidates could have filed immediately upon submission of the 

resignation on March 3, before It had been accepted or an 

election ordered to fill the vacancy, the deadline for filing 

would have been midnight of March 2. Clearly, if candidates 

are to be allowed to file for a place on the ballot, the 

election cannot be held on April 2, 

The foregoing discussion answers your first question. 

Your second qiiestion concerns the earliest date on which the 

election could be held. 

In event an election is oalled, it undoubtedly would 

Abe your desire to set the election for a date which will allow 

candidates a reasonable time in which to ,file for a place on 

the ballot. What constitutes a reasonable time is a matter 

within your discretion. To that time must be added the 30 

days required by Section 32a. The earliest day for the 

election will be the thirty-first day following the deadline 

for filing. Assuming that the resignation were accepted and 

the eiection ordered on this date (March 5), and that you 

should decide that the deadline of the following Saturday 

midnight would allow a reasonable time for filing of applications, April 9th would be the earliest date for which the 

election could be called. This interval for filing is used 

by way of illustration only , and is not a suggestion as to 

what time should be allowed for that purpose. We trust that 

this will answer your second question sufficiently. 

SUMMARY 

Since candidates at a special election 

to fill a vacancy in an office must file their 

applications for a place on the ballot 30 full 
days before the date of the election, a special 

election at which the names of candidates are to 

appear on the ballot c'annot be called for a date 

earlier than the thirty-first day following the 

deadline for candidates to file. It is within the 

discretion of the authority ordering the election 

to determine what length of time should be allowed 

for the filing of applications. 

Very truly yours, 

WILL WILSON 

ATTORNEY GENERAL 

BY 2y K-&e 

Mary Wall 

Assist& 

MKW:csb 

APPROVED: 

OPINION COMMITTEE 

BY: H. Grady Chandler, 

Chairman