Untitled Texas Attorney General Opinion ( 1940 )

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Honorable W. L. Edwards
County Attorney
Victoria County
Victoria, Texas
Dear Sir: Opinion NO. o-2862
Re: Election of third drainage
commissioner, Drainage
District No. 3, Victoria
County, Texas
We have recelved~ your letter of recent date requesting our
opinion upon the method of determining the third drainage
commissioner of Drainage District No. 3, Victoria County, Texas.
For factual background of.your request, we quote from your.
letter as follows:
"At the past General Election Commissioners for the above
Drainage District were voted on, as provided for by Article
8119 R.C.S. There were four in the race. Of these, two
received first and second place, and consequently are duly
elected. However, the remaining two tied for third place,.
and we hereby request the opinion of your department to the
manner in which the thfrd commissioner shall be elected.
"Article 81.19would seem to provide that in this instance
the third Commissioner is to be chosen by the Commissioner"s
Court from the two who tied for third place, although this-
statute to our mind is somewhat ambiguous. This was not the
first election to be held in the District, as it has been in
existence for a number of years."
Article 2953, Revised Civil Statutes, provides:
"At any election, if there be an equal number of votes given
to two or more persons for the same office, except executive
offices as provided in the Constitution, and no one elected
thereto, the officer to whom the returns are made shall
declare such election void as to such office only, and shall
immediately order another election to fill such office; and
notice shall be given, and such other election shall be held
in the same manner as the general election."
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Honorable W. L. Edwards, Page 2, o-2862
Article 2953, supra, was enacted in 1876, and was in effect
in 1918 when the 35th Legislature,, 4th Called Session, enacted
Article 8119, Vernon's Civil Statutes, 1925, which reads:
"After a district is so established, upon the petition of a
majority of the real property taxpayers of the district,
praying for the election of three drainage commissioners, the
Court shall immediately order an election for safd purpose at
the earliest legal time, to be held as other elections here-
under. and shall declare the three persons receiving the
highest number of votes to be elected. If the third highest
vote be tied, the Courr~~~shallelect the third commissioner from
those tying for the place. Such commi.ssioners
_ - so
~ e'_ected,
. ^ _ when
duly qualified hereunder, shall be the 1ecra.ianu rigntI-uI
drainaTe commissioners for such district within the full
@ziT ng and purpose of this law. Such cammiss
o.lfice un til the~llext regular election for State and county
officers, and shall then and thereafter be elec,ted every two
years at such general election." (Empk-asis ours)
Article 8113, Vernon's Civil statutes, provides in part:
I,
....A11 such elections shall be conducted in the manner
provided by the general election laws, UnhSS otherwise Pro-
vid e d . . . . (Emphasis ours]
The "elections" referred to in Article 8113, supra, 4s any
election held under Chapter 7, Title 128, Vernonss Civil
Strtutes, 1925, pertaining to drainage dist~ricts, and which
chapter embodies said Article 8119.
In writing this opinion we are, of course, assuming that a
majority of the real property taxpayers of the district
petitioned for the election of drainage commissioners in the
first insthrIce, as required by Article 8119, aupra.
The Legislature, 2n enacting the underscored portion of
Article 8119, supra, enacted same apparently for the express
purpose of avoiding the provisions of Article 2953, aupra,
by providing for the election by the Commissionerss Court of
the third drainage commissioner,,in the event of a tie vote
for that place. It matters not whether this was the first
election of such commissioners. Said Article 8119 does
not provide that this same procedure shall not apply to subse-
quent elections, and we see no good reason why it should not
so apply.
In the absence of the underscored portion of said Articl~e
8119, which specifically provides the procedure to be
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Honorable W. L. Edwards,, Page 3, O-2862
followed in the election of the third drainage commissioner
in the event of a tie vote,, the general election laws
(Art. 2953) would apply, but in view of such specific prov%-
sion in said Article 8119, the election of drainage ,r-ommissioners
is undoubtedly controlled by the provisions of said Article, in
all matters and things covered by the provisions of sai.3
Article. Scherz vs. Telfer, 74 S.W* (2d) 327.
Therefore, it is our opinion that Article 8119, Vernongs Civil
Statute, 1925, governs the election of the drainage commis-
sioners' Court of Victoria County to elect the third draina,ye
commissioner from the two candidates tying for the third place.
Trusting that the above satisfactorily disposes of your inquiry,
we remain
Very truly yours
ATTGRNEY GENZRAL OF TEXAS
BY
s;/'D
/ . Burla Daviss
i3. Burie Daviss
Assistant
APPROVED DEC. 10, 1940
s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENZRAL
DBD:AW/cg
APPROVED OPINION COMMITI'EE
By BWB, Chairman