Untitled Texas Attorney General Opinion

OFTEXAS Bon, 3. 3. Stevenson Assistant County Attorney Kimble Ccunty Junction, Texas Dear Sir: Opinion No. 6198 Re: Status of Independent School District with leas than 150 scholastics accordin to latest census. Re: Status of primary election clerk nominated for office by Wite-in campaign, and who has violated Art. 218, Penal Code. Your recent communication addressed to this depart- ments reads, in part, as follows: '1 have been saked by the County Judge of Kimble County whether or not an Independent School District which has fewer than one hundred fifty (lj0) scholastics, es required in Art. 2763, Revised Civil Statutes, applyins to small Independent School Districts, but has the required number of scholastics gcing to school in this Independent District. by rea- aon of transfers from two other ‘ommon School jia- tricta. The trustees of this Independent school District contracted with the two Commcn School DTS- tricts,above menticned for these scholastics. There- fore t is this Independent Uiatrict still an Independ- ent district or dces it revert to a Commcn School Xatrict? "In a Primary Election where the qualified voters write the names in for an officer, znd one of the namea so written is is on the Election Board as a~ clerk, and if the officer, who is on the Election Eoard, has vio- lated the provisions of Art, 218 P. C. of the Statutes and said officer had been elected, would the fact that . . Hon. j-;-% Stevenson, page 2 he violated the provisicns of said article pre- clude the Democratic Executive Committee from certifying said dandidate and causing his name to be placed on the ballot for General Election in November?" Regarding the matters covered by the first quoted paragraph of-your letter, you are advised as follows: Art. 2763, R. c. S., regarding small independent school districts and laws applicable thereto, reads thus: "All incorporated districts, having each feirrer than one hundred and fifty scholastics according to the latest census, shall be governed in the general administration, of their schools by the laws which apply to common school districts; and all funds of such districts shall be kept in the county deposi- tories and paid out on order of the trustees ap- proved by the county superintendent." By "latest census,! as referred to in Art. 2763 aforestid, is meant the latest march scholastic census pro- vided for in Chapter 14 of Title 49, V. A.S. C' such is the uniform and unvarying interpretation of our State aepartment of Education, we have been officially adv!.sed. Neither have 'we discovered any statutory provisicn to the ccntrary. There- fore, any transfers which are effected by any of the statutory methods cannot be considered in determining the scholastic population according tc the "latest census,' within the meaning of said Art. 2763. A close reading of Art. 2763 aforesaid reveals that an incorporated or independent district, having fewer than 150 scholastics according tomthe latest census, does not lose its status of aninco~aporated 'district. Such a district "shall be governed in the general administration" of i',s.schools 'by the laws ,which apply to common school districts!' Also, all funds of such cdlstrict shall be kept in the county depository and paid out on order of the trustees ap::roved by the county superintendent." Hon. J. B. Stevenson, page 3 Your first question is therefore, answered as follows: Such district remains an independent district. It does not revert to a common school district. 'Sic now consider the second quoted paragraph of your communication. Article 2940, Vernon's Annotated Civil Statutes, reads , in part, as fOU0Ws: "No one who holds an,office of profit or trust under the United States or this State, or in any city or town in this State, or . . .who is a candi- date for office, . . .shall act ES jud;;e, clerk or supervisor of any election;. . . In the case of Gayle v. Alexander, 75 S. W. (2) '706, our Court of Civil Appeals at ayaco, in construing the provisions of said.rt. 2940, said: "The lenislative intent in enactin? the article under cons?deraticn was ev'dently to Restrict the selection of election officers tc those who '$$erefree from the supposed influence, embarrassment, or 'nter- test arising from office holding crcersoncl candidacy . . .So far as the selection of election officers is concerned, said article might well be deemed mandatory and ccmpliance therewith requ;ired Jvhen the eligibility of an cfficer so selected is denied, or his right to serve as such assailed by any proper proceedin,g prior to his actual service. Browning v. Gray, 137 Tenn. 70 191 S. v*yi.~52j.No such situation is presented in this caie.~ isut should the provisions of said article in that phase of its application be held mandatory, it does not necessarily follow that when a person named in said article has been selected as an election officer for a particular voting precinct, and his selection has not been assailed but has been acquiesced in by the qualified electors of such precinct by participating in the election held therein, and the votes cast in such precinct have been fairly and correctly counted and tabulated and return thereof duly made, that such elec- tion as to said precinct should solely by reason of Hon. J. i3. Stevenson, page 4 the participation of such election officer in holding the same, be declared viod, the returns thereof excluded frcm the canvass of the votes cast in said election in the entire ccunty, and the voters cf such precinct thereby in effect disfranchised. "The courts have held with practical unanimity that an election is not vitiated by the fact that the election officers who acted under color of authority did net pcssess the required qualifica- tions, especially when no frau? or misconduct is imPuted. Hunnicutt v. State, 75 Tex. 233, 239; 12 S. u. 106; Gel1 v. Faulkner, 84 Tex. 187, 190; 19 S.'h'. 400; . . .20 C. J. Pp. 99, 90 369; 9 R. c. L ., P. 1012, et seq. 832 and 33. . ." (Emphasis ours) From your communication, it is ,not clear just when the election clerk became a candidate for the office involved. vile presume, therefore, that he was not a candidate at the time of his selection as clerk. lie was evidently non:i.nated as a result of a "write-in" campaign. In just what manner, said clerk violated the provi- sions cf Art. 218, P. C., if he did so, is not stated. Said Article 2lfi reads as follows: "Any jud,Se, clerk, or ether person who may be in the room where an election, either primary, special or general, is bein? held, who there indicates by wcrd or siln how he desires a citizen to vote or not to vote, shall be fined not less than two hundred nor more than five hundred dollars and be ccnfined in jail not less than ten nor more than thirty days." The penalty for violatin:; any of the provisions of said article is .thus limited to a fine and, ,aail sentence. No other penalty is Prescribed. Therefcre, .the Democratic Executive Committee would not 'beprecluded from certi~fyine said candidate and causin; his name to be placed on the ballot for gsneral electicn in November. Hon. J. B. Stevenson, page 5 We further hold that it makes no difference when said election clerk might have become a candidate for the office to which he was nominated. Unless an election contest has been filed within the statutory time, resulting in a final judicial determina- tion that said clerk's violation of any or all of the prcvis?ons of Art. 218 P. C., was cf such a nature and to such an extent as to change the result of the election, said nominee's name must be properly certified for a place on the 'ballot in the November gener- al election. Very truly yours, ATTORNEY GENERAL OF TEXAS BY L. H. Flewellen Assistant LHF:rt/pam APFROVED OCT 2, 1944 GARLOS C. ASYLEY FIRST ASSISTANT ATTORNEY GENERAL API-ROVED OPINION COMMITTEE BY BPW, CHAIRMAN