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Honorable Charles S. McMillan
County Attorney
San Augustine County
San Augustine, Texas
Dear Sir: Opinion No. O-3393
Re: (1) Whether a ballot is void
and should be counted in a
school trustee election where
there are three names on the
ballot where only two trustees
are to be elected. (2) Has
Article 2808, R. C. S., been
amended by Acts of the 41st
Legislature, 1931, 5th C. S.,
p. 212? (3) Under the facts
given is the school trustee
election void 7
We have rkceived your written request for an opinion from this
department. We quote from your first request:
“I would like to request an opinion on the following question:
“‘Whether a ballot is void and should be counted in a
school trustee election that has the names of three persons
on the ballot for trustee offices where only two trustees are
to be elected?’
“Due to my limited library I am unable to determine
whether Article 2808 of Vernon’s Ann. Civ. Statutes has been
amended, and it is very important in determining another ques-
tion that would arise if it has not been so amended by the 41st
Leg., 5th C. S., Ch. 66, Acts 1929.”
We also quote from your supplemental request furnishing us
additional information as follows:
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Honorable Charles S. McMillan, Page 2, O-3393
““This is to advise that the Lucas Consolidated School
District No. 34 is a consol.idation of common school dis-
tricts. It is in the country. The election order and notice
submitted the election of two trustees. The third candidate
was merely a candidate for the two elective places.
“Now here is what happened. There were three candi-
dates for two elective places. There were other candidates
but only three names were printed on the ballot, and they
are;‘is .follows:
“Vaughn Lakey
Tom Rayburn
Norman Williams
In the meantime, that is, between the ti.me the election was
ordered and held, a member of the board of trustees of the
school district resigned. His name was T. W. Lakey. When
the time to vote arrived, a majority of the voters voted their
ballot as follows:
“Vaughn Lakey
Tom Rayburn
Jay Gardener (Write i,n)
Some voted as follows:
“Vaughn Lakey
Tom Rayburn
J. W. Bryant (write in)
Others voted as follows:
‘“Vaughn Lakey
Norman Williams
Then when the time to tally came, the election officer counted
all the ballots i.n one group that voted for two trustees, in another
group, the ballots cast for three trustees.
It seems that the majority of the ballots were cast for three trus-
tees. The election officer made his returns in the following manner:
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Honorable Charles S. McMillan, Page 3, O-3393
“Vaughn Lakey 61
Tom Rayburn 42
Gay Gardener 41
Norman Williams 17
J. W. Bryant 6
The commissioners court canvassed the returns as follows:
‘*Vaughn Lakey
Tom Rayburn
My main conc.ern is whether the Article referred to in my former opin-
ion is the law. In other words you have two articles governing the elec-
tion of school trustees in a consolidated school district as the one above.
Another concern is whether the ballots that had the names of three trus-
tees on them were void if only two trustees were to be elected.
Whether the facts warrant the construction that the whole election was
void.”
We first consider the question of whether or not Article 2808,
Revised Civil Statutes, 1925, has been amended or repealed. Said Article
provides as follows:
“The board of county school trustees at its next meeting
after such consolidation of school districts is declared, shall
appoint a board of seven trustees for the consolidation district.
No person shall be trustee who cannot read and write the Eng-
lish language understandingly, and who has not been a resident
of this State one year, and of the district six months, prior to
his appointment or election. The terms of office of three of the
trustees so appointed shall expire on the first day of May next
following their appointment, and the terms of office of the other
four trustees shall expire on the first day of May of the succeed-
ing year, as those so appointed shall determine by lot. Each
year thereafter alternately three trustees and four trustees shall
be elected by the qualified voters of the district on the first Sat-
urday of April and trustees so elected shall enter upon the dis-
charge of their duties on the first day of May next following and
serve for a term of two years thereafter. District trustees shall
qualify by taking the official oath which shall be filed with the
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Honorable Charles S. McMillan, Page 4, O-3393
county superintendent of the county wherein the distri,ct Is
situated. The board of trustees after bei.ng quali.fied shall
immediately organize by el,ecting one of their number presi-
dent and another secretary:, a report of which organizat.ion
shall be filed with the county superintendent. The board of
county school trustees shal,l, fill. any vacancy by appointment
until the next regular election for district trustees. The
board of trustees of the district shall appoint three qualified
voters of the district to hold sai.d .election and make returns
thereof in like manner as provi.ded by law for holding elec-
tions for trustees in common school districts, except that the
persons holding said election shall. each receive two dollars
a day for such services.”
The Forty-first Legislature, 1931, 5th Called Session, Page 212,
enacted Senate Bill No. 30, the caption of which provides:
“An Act providing for the appointment or election and term
of office of school trustees in all independent districts having
fewer than 75,000 population by the Federal Census of 1920 and
for all consolidated and rural high school districts; adjusting
the term of office of trustees now in office; providing for filling
of all vacancies; providing for the date of first election under
this Act; repealing all laws both general and special in confl.ict
herewith, and declaring an emergency.* (Underscoring ours)
Section 3 of the same Act provides:
‘“Sec. 3. The board of county school trustees at its next
meeting after the consolidati.on of school districts is declared
shall appoint a board of seven trustees for the consolidated
district. No person shall be trustee who cannot read and write
the English language understandi,ngl,y, and who has not been a
resident of this State one year, and of the district six months,
prior to this appointment or election. Those elected at the first
election shall determine by lot the term for which they are to
serve. The three members drawing numbers one, two and
three shall serve for one year, the two members drawing num-
bers four and five shall serve for two years and the two mem-
bers drawing numbers six and seven shall serve for three years,
or and until their successors are elected and qualified; and regu-
larly thereafter on the first Saturday i.n April of each year three
trustees or two trustees shal.1 be elected for a term of three
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Honorable Charles S. McMillan, Page 5, O-3393
years to succeed the trustees whose term shall at that time
expire. The members of the board remaining after a vacancy
shall fill the same for the unexpired term. District trustees
shall qualify by taking the official oath which shall be filed
with the county superintendent of the county wherein the dis-
trict is situated. The board of trustees after being qua1ifie.d
shall immediately organize by electing one of their number
president and another secretary, a report of which organization
shall be filed with the county superintendent. The board of trus-
tees of the district shall appoint three qualified voters of the
district to hold said election and make returns thereof in like
manner as provided by law for holding elections for trustees
in common school districts, except that the pers,ons holding
said election shall each receive from the general fund of the
county two dollars a day for such services.”
Section 5 of the same Act, in part, provides:
“Sec. 5. The first election under the provision of this Act
shall be held on the first Saturday in April, 1931. * + * and in
all consolidated and rural high school districts in which the
term of office of three elective trustees expire in 1931, their
successors shall be elected for a term of three years. * * *
In all such districts in which the term of office of four elec-
tive trustees expire in 1932,. after their successors are elected,
they shall determine by lot which two members shall serve for
one year and which two members shall serve for three years.
Those members drawing numbers one and two shall serve for
one year; those members drawing numbers three and four shall
serve for three years, and annually thereafter ei.ther :thmree trus-
tees or two trustees, as the case may be, shall be elected to
serve for a term of three years.
“In all such independent, consolidated and rural high
school districts in which the terms of office of four elective
trustees expire in 1931 their successors shall determine by
lot which two shall serve for two years and which two shall
serve for three years. Those members dr.awing numbers one
and two shall serve for two years and those members drawing
the numbers three and four shall serve for three years, and
annually thereafter either three trustees or two trustees shall
be elected to serve for a term of three ~years.*
Honorable Charles S. McMillan, Page 6, O-3393
Senate Bill No. 30, supra, is carried in Vernon’s Civil Statutes as Article
2774-a.
A consideration of the two Acts, quoted above, clearly shows
that they are on the same general subject. It is clear that the Act last
quoted intended to change the number of trustees to be elected annually and
to change their tenure of office as well as to provide a different method of
selecting a trustee of a consolidated school district where a vacancy occurs.
We believe that there is no doubt but what the two Acts are inconsistent and
irreconcilable in so far as the selection of trustees, their tenure of office,
and the filling of a vacancy is concerned, and to that extent, we believe that
the later Act, by implication, repeals the provisions of Article 2808. 39 Tex.
Jur. 139.
We have con,sidered the case of Plains Common Consolidated
School District No. I of Yoakum County v. Hayhurst, (Civ. App.) 122 S. W.
(2d) 322, which seems to hold that the pro’visions of Article 2808 are con-
trolling in so far as the election of trustees of a consolidated common school
district are concerned as well as the filling of a vacancy on the Board of
Trustees. Since the opinion does not show whether or not Article 2774-a was
called to the court’s attention and in view of the provisions of the two Acts,
which we have already discussed, we do not believe that the case, referred to,
is authority for holding that Article 2808 has not been repealed, by implication,
by the provisions of Article 2774-a, supra.
Upon the facts submitted by you, we agree with your conclusion
that the resignation of the trustee and the acceptance of his resignation by the
Board of Trustees, did not terminate his status as a trustee until his succes-
sor has been duly appointed and qualified in the manner required by law. In
our Opinion No. O-1432, we discussed the same question and quoted from Plains
Consolidated School District case, supra, for authority. We are enclosing a copy
of Opinion No. O-1432 for your consideration.
We now consider the effect of more than two names being printed
on the ballot.
Article 2774-a, which we have held to be applicable, provides,
in part:
“The Board of Trustees of the District shall appoint three
qualified voters of the district to hold said election and make
returns thereof in like manner as provided by law for holding
elections for trustees in common school districts. * * **
Honorable Charles S. McMillan, Page 7, O-3393
Article ‘4746, Revised Civil Statutes, 1925, is a statute provid-
ing for the conduct of a trustee election in a common school district. This
article does not refer to ballots.
Article 2746-a, Vernon’s Civil Statutes, provides:
“A11 of the ballots for the election of a school trustee in
common school districts and in independent school districts
having fewer than five hundred (500) scholastics as shown
by the last preceding scholastic census roll approved by the
State Department of Education and exclusive of transfers
shall be printed with black ink on clear white paper, of
sufficient thickness to prevent the marks thereon being seen
through the paper, and be of uniform style and dimension; at
the top of the ballot there shall be printed ‘Official Ballot,
Independent School District,.’ the number of
name of the school district in which the election is to be held
to be filled in by the judge of the county when he orders the
ballots printed. * * +v
It will be noticed that the statute, last referred to, does not specifically say
how the names shall be placed upon the ballot.
It was held in the case of Scherz v. Telfer, (Civ. App.) 74 S. W.
(2d) 327, as follows:
“We find nothing in the statute expressly excluding from
the provisions of the election laws the election of common
school trustees. The election of such trustees is, of course,
undoubtedly controlled by the provisions of articles 2745,
2746, and 2746a in all matters and things covered by the pro-
visions of said articles. But it is manifest, we think, that
in all other matters not covered by said articles the provi-
sions of the Terre11 Election Law would apply. 0 * t”
Article 3018, Revised Civil Statutes, 1925, of the Terre11 Elec-
tion Law, provides:
we * * If the names of two or more persons are upon a
ballot for the same office, when but one p’erson is to be
elected to that office, such ballot shall not be counted for
either of such persons.”
Honorable Charles S. McMillan, Page 8, O-3393
We think the above statute is applicable to your proposition.
In 16 Tex. Jur. 111, 112, the rule is well stated as follows:
“It is further enacted that, if the names of two or more
persons are upon a ballot for the same office, when but one
person is to be elected to that office, the ballot shall not be
counted for either of such persons. The language of this
statute is mandatory. Hence, a ballo which contains the
names of two persons as candidates for the same office,
neither of which has been erased cannot properly be counted
for either of the candidates. If the name of a candidate for a
designated office is on a ballot and is not scratched, the fact
that the voter has written in the name of the person for whom
he desires to vote, while showing the intention of the voter,
cannot override the plain direction of the statute. The vote
is illegal and cannot lawfully be counted.
‘But where the intention of the voter to scratch one name
is clearly shown, though the name was not entirely obliterated,
and another name is written in at’the proper place, the ballot
will be counted for the name so written i.n. And, although the
statute provides that the name of no candidate shall appear
more than once upon the official ballot, except in a certain
instance, if the name of a candi.date i,s written i.n although it
already appears printed on the ballot, the ballot is not rendered
invalid.*
We think the above quoted statutes and authorities clearly con-
template that after the voter, under the facts submitted by you, has been handed
a ballot that it is incumbent upon the voter, if his vote is to be legally counted
and allowed, to see that not more than two unscratched names appear up on said
ballot. You are therefore advised that all ballots which were handed to the elec-
tion judges by the voters upon which there appeared more than two unscratched
names are void and should not be counted. We also beli.eve that those ballots
that had only two unscratched names left on them when they were handed to the
election judges by the voter should be allowed and counted and that same are
valid ballots. From the facts submi,tted by you, we are unable to determine,
upon the basis indicated above, how many ballots were properly cast in the
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Honorable Charles S. McMillan, Page 9, O-3393
election inquired about which of course would determine who waci dul,y
elected.
From the facts submitted by you, we do not find anythi,ng which
shows that the election is void as a matter of law.
Yours very truly
ATTORNEY GENERAL OF TEXAS
FIRST ASSISTANT
ATTORNEY GENERAL
Harold McCracken
Assistant
HM:RS
ENCLOSURE
APPROVED
OPINION
yjg;z
Chairman