THEA’ITORNEYGENERAL OF TEXAS
AUSTIN II. TEW’ILL WILSON **A-RNEY** GEXA’ERAI.

. March5, 1957

Honorable Price Daniel Governor of Texas Austin, Texas
OPINION NO. ww-46
Re: Date for specialelection to fill a vacancy in the House of Representatives.

Dear Governor Daniel:

You have requestedan opinion on whether a special election to fill a vacancy in the office of State Representative for the 29thDistrict resulting from resignation of the incumbent could be called for April 2, the date on which a specialelection to fill a vacancy in theUnited States Senate is to be held. You ask, further, in event the election could not be called for April 2, what is the earliestdate 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,resignationof the incumbentdoes not occuruntil the resignation Is accepted. Sawyerv. 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 28and 32 of the Texas Election Code (Article64.05 and 4.09,Vernon's EleCtion Code). Section 32 provides that where a vacancy to be filledby election occurs in a civil office, an election shall immediatelybe ordered to fill the unexpired term, and that the order for the election shall fix the time of the election "not less than twentynor more than ninety days after the firstpublic 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 thatunder 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 electionnowordered for April 2 wouldhave to be held as a write-in

election withouthaving thenames of any candidatesprinted on the ballot. This would resultbecause of the provisions of Section 32a of the Election Code (Article4.10,Vernon's Election Code), which reads in part as follows:

'Anyperson desiringhis name to appear upon the official ballot at any specialelection held for the purpose of filling a vacancy, when no party primaryhas been held, may do so by presentinghis application to the proper authority.

. . .

"Suchap licationmust be friednot later than thirty (30 days before any such special election a . . ti (Emphasis supplied) This statute fixesmidnight of the thirty-firstday preceding the election (notcounting the day of the election) as thedeadline for candidates to file for a place on the ballot. Att'y Gen. Op. No. WW-38 (1957). Even assuming that candidates couldhave filed immediatelyupon submissionof the resignationon 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 foregoingdiscussion answersyour first question. Your second qiiestion concerns the earliestdate on which the election could be held.

In event an election is oalled, it undoubtedly would Abeyour desire to set the election for a date which will allow candidates a reasonable time in which to ,filefor a place on the ballot. What constitutes a reasonable time is a matter withinyour discretion. To that timemust be added the 30 days requiredby Section 32a. The earliestday for the election will be the thirty-firstday following the deadline for filing. Assuming that the resignationwere accepted and the eiection ordered on this date (March5), and thatyou shoulddecide that the deadline of the following Saturday midnight would allow a reasonable time for filing of applications, April 9th would be the earliestdate for which the election could be called. This interval for filing is used by way of illustrationonly , and is not a suggestionas to what time shouldbe allowed for that purpose. We trust that this will answer your secondquestion sufficiently.
SUMMARY Since candidates at a special election to fill a vacancy in an officemust file their applications for a place on theballot 30 fulldays 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-firstday following the deadline for candidates to file. It is within the discretion of the authority ordering the election to determine what length of time shouldbe allowed for the filing of applications.

Very trulyyours, WILL WILSON ATTORNEY GENERAL

BY 2y K-&e Mary Wall Assist&

MKW:csb

APPROVED: OPINION COMMITTEE
BY: H. Grady Chandler, Chairman