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March 21, 1963
Honorable Henry Wade Opinion No. C- 40
Criminal District Attorney
of Dallas County Re: Whether an Individual can
Dallas, Texas have his name on the ballot
for county school trustee
and for trustee of an
independent school district
in the same election, and
Dear Sir: related question.
You have requested an opinion on the following
questions:
1. Can a person have his name on the ballot as a
candidate for the office of county school trustee of Dallas
County and also for the office of trustee of the Dallas Inde-
pendent School District, in the same election?
2. In the event that he cannot, can he withdraw his
candidacy for one office and remain on the ballot for the other
office?
The fact. situation out of which these questions arise
is stated In your opinion request as follows:
“On April 6, 1963, there will be conducted In
the City of Dallas, Texas, and the County of Dallas,
Texas, an election to determine the County School
.Board Trustees and the Dallas Independent School
District Board Trustees. The County of Dallas and
the Dallas Independent School District have agreed
to hold a joint election for said Boards of Trustees
as permitted by Article 2746c, V.A.C.S. However, we
understand that no formal resolution has been adopted
as to whether a single ballot or separate ballots
will be used. The voting on April 6, 1963, will be
conducted by the use of voting machines with all of
the candidates’ names for both .Boards appearing on
each voting machine. However, the absentee voting
.
Honorable Henry Wade, page 2 (C- 4C)
will be conducted separately; i.e., the Dallas
Independent School District will conduct their own
absentee voting, while the County Clerk will conduct
the absentee voting for the County School Board.
“An individual has filed applications as a
candidate for trustee for both the Dallas Independ-
ent School District Board and the Dallas County
School Board. ”
Article XVI, Section 40 of the Texas Constitution,
which prohibits a person from holding two civil offices of
emolument at the same time, does not prevent a person from
holding the two offices here Involved, since the office of
trustee of an independent school district is not an office of
emolument. However, regardless of whether one or both offices
are offices of emolument, the same person cannot hold two ln-
compatible offices. 34 Tex.Jur. 351, Public Officers, Sec. 18.
In Attorney General’s Opinion No. O-1398 (1939), it was held
that the offices of county school trustee and trustee of an
independent school district are incompatible and that the same
person may not hold both offices simultaneously. We egree with
that holding. Accordingly, if the individual fn question were
elected to both offices, he could accept only one of them.
Article 2676, Vernon’s Civil Statutes, which is the
general statute pertalnfng to the electeon of county school
trustees, contains the following provisions:
“Section 1~ + + * The time for such elec-
tion shall be the first Saturday in April of each
year; the order for the election of county school
trustees to be made by the county judge at least
thirty (30) days prior to the date of said election,
and which order shall desfgnate as votfng places
withen each common or independent school district
the same voting place QP places at which votes are
cast for the District Trustees of said common and
independent school districts, respectively. The
election officers appointed to hold the election
for District Trustees in each of‘said school dfs-
tricts, respectively, shall hold this election for
county school trustees.”
. .
Honorable Henry Wade, page 3 (C-40 )
Article 2790e, V.C.S., which Is the statute pertain-
lng to the election of county school trustees In counties having
a population of more than 350,000, contains a similar provision,
as follows:
“Sec. 13. The election for County School
Trustees shall be held on the first Saturday in
April of each year, and the election officers
holding elections for trustees in each district
in the county shall hold the election for County
School Trustees at the same time and place as the
election for district trustees.”
Under these statutes, an election for county school
trustees must be conducted at the same place and by the same
election officers as an election for trustees of an independ-
ent school district which is held on the same day.
You have stated that the County of Dallas and the
Dallas Independent School District have a reed to hold a
joint election as permitted by Article 27&6c. This statute
reads as follows:
%henever an election for members of the
county board of trustees, the board of education,
board of trustees or other governing board of any
school district, or the board of regents, board
of trustees or other governl.ng board of any Junior
college district, regional college district or
other type of college district, is t,o be held on
the same day and within all or part of the same
territory as any other of the elections herefn
enumerated, the various officers, boards or bodies
charged with the duty of appointing the election
officers, providing the supplies, canvassing the
returns, and paying the expenses of such elections
may agree to hold the elections jointly and may
agree upon the method for allocating the expenses
for the joint election. Resolutions reciting the
terms of the agreement. shall be adopted for each
of the participating boards or bodies. The agree-
ment may provide for use of a single ballot form
at each polling place, to contain all the offices
to be voted on at that pollfng place, or for sepa-
rate ballot forms which may combine two or more of
the sets of county or district offices to be voted
on, provided that all of the offices and candidates
. .
Honorable Henry Wade, page 4 (C- 40 )
for each district or political subdivision shall
appear on the same ballot. One set of election
officers may be appointed to conduct the joint
election, and any person otherwise qualified who
Is a resident of either of the districtsor polit-
ical subdivisions holding the election shall be
eligible to serve as an election officer. Poll
lists, tally sheets, and return forms for the
various elections may be combined In any manner
convenient and adequate to record and report the
results of each election, and one set of ballot
boxes and one stub box may be used for receiving
all ballots and ballot stubs for the joint elec-
tion. Returns on joint or separate forms may be
made to, and the canvass made by, each officer,
board or body designated by law to receive and
canvass the returns for each election, or one of
such officers, boards and bodies may be designated
to receive and canvass the returns for the joint
election and to report the results of each elec-
tion to the proper authority. Where the counted
ballots for two or more of the elections are
deposited in a single ballot box, the box contain-
ing the counted ballots shall be returned to the
officer or board designated in the agreement,
which shall be an officer or board designated by
law to receive and preserve the counted ballots
for one of the eLections constituting a part of
the joint electlon."
In our opinion, the effect of Articles 2676 and 2790e
is to make the election of county school trustees a part of the
election for district trustees, although these statutes do not
require use of a single ballot form and do not authorize a com-
plete fusion of duties in conducting the election and canvassing
the returns as is permitted by Article 2746~. When the election
is held under the provisions of Article 2746c, that statute
further serves to untte the election.
Article 6.01 of Vernon's Election Code provides in
part as follows:
'In all elections by the people, the vote
shall be by offfcial ballot, which shall be num-
bered and elections so guarded and conducted as to
detect fraud and preserve the purity of the ballot.
Honorable Henry Wade, page 5 (C- 40 )
* * * The name of no candidate shall appear more
than once upon the official ballot, except (a) as
a candidate for two (2) or more offices permitted
by the Constitution to be held by the same person;
or (b) when a candidate has been duly nominated
for the office of President or Vice-President of
the United States and also for an office requir-
ing a state-wide vote for election. * * *'I
In the brief accompanying your request, you make the
following statement, with which we are In agreement:
"The purpose of the above statute would
appear to be to prevent a person from becoming
a candidate for more than one office when he
could only accept one of them. This places on
the candidate the burden of making a choice of
which office he wishes to run for before the
election, rather than allowing him to run for
both, and If elected to both, making his choice
after the election."
If, at the election to be held in the Dallas Independ-
ent School District on April 6, the names of the candidates for
the offices of county school trustee and district school trustee
are placed on a single ballot form, we are of the opinion that
Article 6.01 would clearly prohibit the placing of the same
person's name on the ballot as a candidate for the two offices.
Att'y Gen. Ops. O-2640 (1940) and WW-493 (1958). We are further
of the opinion that a person cannot have his name appear as a
candidate for both offices, regardless of whether the offices
are listed on a single ballot form or on separate ballot forms.
The law requires that the offices be filled by election at the
same time and place, and it would be ignoring the purpose of
the prohfbitfon in Article 6.01 to construe it as applying only
where a single ballot form is used. The occurrence which the
statute is designed to prevent--election of a person to an
office which he cannot accept --is as objectionable in the one
case as in the other. To make the prohibition in Article 6.01
turn on such a technicality as the physical makeup of the ballot
forms would be thwartfng the intent of the statute, and we are
unwilling to construe it so narrowly. We therefore answer your
first question in the negatfve.
Honorable Henry Wade, page 6 (C- 40 )
Your second question is whether the individual can
withdraw his candidacy for one office and remain on the ballot
for the other office.
It should be noted at the outset that the period for
absentee voting in the forthcoming election began on March 17,
the twentieth dav before the election date of ADd.1 6. and that
the election Is now In rogress. Skelton v. Ya‘tes, 131 Tex.
620, 119 S.W.2d 91 (193 f; ). We are not informed as to what
action has been taken inregard to placing this lndlvldual~s
name on the ballots, and we shall therefore state our opinion
on each of the four possible situations which may now exist.
The manner In which this individual became a candidate
for these offices was by filing an application for each office,
as provided In Article 2745~~ V.C.S. This statute is silent
on the matter of withdrawal of candidacy after the application
is filed. The only statute which might apply Is Article 13.56
of the Election Code, which provides that a nominee may decline
his nomination up to ten days before the election ,if It be for
a city office and up to twenty days before the election In other
cases. In Williams v. Huntress, 153 Tex. 443, 272 S.W.2d 87
(19%). the Sunreme Court i n construinn Article - _ held that
13.56
where a party nominee for an office had been subsequently nomi-
I ~_- ,,
nated for a second office to be voted on at the same election
and he could not lawfully have his name printed on the ballot
for both offices, he had to decline the nomination for the
first office at least twenty days before the election in order
to have his name printed on the ballot for the second office.
If Article 13.56 applies to a candidate filing under Article
2745~ (i.e., if he Is a "nominee" wlthln the terms of Article
13.56), it would follow that the application first filed would
have had to be withdrawn at least twenty days before the elec-
tion in order for the candidate to have his name placed on the
ballot for the second office, unless the particular circumstances
of your fact situation call for a different result. We doubt
that Article 13.56 applies to candidates filing under Article
2745c, but even so, we are of the opinion that ordinarily these
candidates may not withdraw their applications after absentee
voting begins. However, we are of the opinion that an appllca-
tlon filed under Article 2745~ may be withdrawn before commence-
ment of absentee voting. If, more than twenty days before the
election, thfs Individual withdrew his application for one of
the offices, we know of no prohibition agafnst placing his name
on the ballot for the other office. Therefore, if this individ-
ual's name now appears as a candidate for only one of these
offices, it may lawfully remain on the ballot for that office.
Honorable Henry Wade, page i' (C- 40 )
Your opinion request reveals that the County Judge
of Dallas County, who has the duty of certifying the candi-
dates for county school trustee, had sought your opinion as
to the legality of placing this Individual's name on the
ballot for both offices, but it does not reveal whether he had
taken a position In the matter. If the officers having the
duty of making up the ballot informed the individual that his
name could not appear as a candidate for both offices and that
he must choose between the offices but he refused to do so, and
thereupon they proceeded with the printing of the ballots and
left his name off the ballot for both offices, we are of the
opinion that he now has no right to demand that his name be
printed on the ballot for either office.
If the officers charged with preparation of the
ballots were uncertain as to the law and did not resolve the
question before the expiration of the time within which an
application ordinarily could have been withdrawn, we are of
the opinion that the regular deadline for withdrawal does not
apply. Accordingly, If printing of the ballots has been held
In abeyance awaiting a resolution of the candidate's right to
have his name appear under both offices, he may still choose
which office he wishes to run for. Also, if ballots have
already been printed, listing the Individual as a candidate
for both offices, we are of the opinion that the ballots should
be revised so as not to violate Article 6.01, and that the lndl-
vidual may still choose which office he wishes to run for.
SUMMARY
The office of county school trustee and
trustee of an independent school district are
Incompatible, and the same person may not hold
both offices at the same time.
A person may not have his name printed on
the ballot as a candidate for the office of
county school trustee and also as a candidate
for trustee of an independent school district,
where both offices are to be filled at an elec-
tion held on the same day.
“. .
Honorable Henry Wade, page 8 (C- 40 )
If a person who has filed for both offices
withdraws his application for one of the offices,
he may have his name placed on the ballot for
the other office.
Yours very truly,
WAQffONERCARR
Attorney General of Texas
MKW:afg
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Marietta McGregor Payne
John Reeves
Paul Robertson
APPROVEDFOR THE ATTORNEY
GENERA&
BY: Stanton Stone
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