Who is the 'returning officer' that can order a special election for a vacant Texas legislative seat?

Plain-English summary

The Texas Constitution has a backstop for filling a sudden vacancy in the Legislature. Article III, section 13(a) says that when a seat in either house opens up, the governor issues a writ of election to fill it, but if the governor does not act within 20 days, the "returning officer" of the district can order the election instead. The Secretary of State's office wanted to know who that "returning officer" actually is, since the Constitution never defines the term, and specifically who fills the role in a legislative district that lies entirely within one county.

The AG looked at how the term is used elsewhere in the Constitution and in the Election Code. Other constitutional provisions describe returning officers as the officials who complete, seal, and transmit election returns to the Secretary of State, and the interpretive commentary to section 13(a) says the returning officer is the officer who was in charge of the returns from the previous election. An old Texas Supreme Court case had identified a county judge as the returning officer under a statute that made the judge canvass the votes and declare the result, which shows the role tracks whoever the statutes assign the returns duty to at the time.

Turning to current law, the AG found the Election Code now puts that duty on the county clerk: for an election for a district office, the county clerk of each county in the territory prepares the county's election returns and delivers them to the Secretary of State. So for a single-county legislative district, the county clerk is the returning officer for purposes of article III, section 13(a). The Secretary of State is not the returning officer; that office is the recipient of the returns, not the preparer. The AG added two cautions. First, the section 13(a) power is permissive, the returning officer may order the special election but is not required to. Second, although many counties use a county elections administrator who performs the clerk's election duties, that administrator is an employee rather than a public officer, so a court is unlikely to treat the elections administrator as the constitutional returning officer.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Secretary of State's office: At the time of the opinion, the AG concluded the Secretary of State is not the returning officer under article III, section 13(a); that office receives the returns rather than preparing them, and the returning officer for a single-county legislative district is the county clerk.

County clerks: The opinion identified the county clerk as the returning officer for a single-county legislative district, the official who, if the governor does not act in time, holds the permissive authority to order a special election to fill the vacancy.

County elections administrators: The opinion concluded a court is unlikely to treat an elections administrator as the returning officer, because that administrator is an agent or employee of the county rather than a public officer, even though the administrator may prepare and submit returns as delegated by the clerk.

Common questions

Who can order a special election if the governor doesn't fill a vacant legislative seat?
The AG concluded the returning officer of the district may, and for a single-county legislative district that is the county clerk under Election Code section 67.007, exercising the permissive authority in article III, section 13(a).

Is the Secretary of State the returning officer?
The AG concluded no. The Secretary of State receives election returns from each county's returning officer rather than preparing them, so the office is not the returning officer under article III, section 13(a).

Is the returning officer required to call the election?
No. The AG noted, consistent with a prior opinion, that the authority is permissive: the returning officer may order the election but is not obligated to.

What about counties that use an elections administrator instead of relying on the clerk?
The AG concluded a court is unlikely to treat a county elections administrator as the returning officer, because the administrator is an employee or agent of the county and not a public officer, even if the administrator handles returns as delegated by the clerk.

Background and statutory framework

Article III, section 13(a) provides that on a legislative vacancy the governor issues a writ of election, and if the governor fails to do so within 20 days, the returning officer of the district may order an election. The Constitution does not define "returning officer," but article IV, section 3 and article XVII, section 1(c) describe returning officers as those who complete, seal, and transmit returns to the Secretary of State, and the interpretive commentary to section 13(a) says the returning officer is the officer in charge of the prior election's returns. The Texas Supreme Court in Trimmier v. Carlton identified a county judge as the returning officer under a statute requiring the judge to canvass the votes and declare the result, illustrating that the role follows the officer assigned the returns duty.

Under the current Election Code, the county clerk of each county in the territory covered by a district-office election prepares the county election returns (Tex. Elec. Code § 67.007(a)), prepares a report of precinct votes after each election for state senator or representative (§ 67.017(a)), and delivers those returns to the Secretary of State (§§ 67.007(d), 67.017(b)), on official forms the Secretary provides (§ 67.009(a)). The AG therefore concluded the county clerk is the returning officer for a single-county legislative district for purposes of article III, section 13(a) (see Tex. Const. art. V, § 20 (county clerk is an officer); Tex. Att'y Gen. Op. No. KP-0060 (2016)), and that the Secretary of State is the recipient, not the returning officer. The AG noted the section 13(a) authority is permissive (Tex. Att'y Gen. Op. No. WW-728 (1959)) and that a county elections administrator, who may perform the clerk's duties under section 31.043(2), is an agent or employee rather than an officer and so is unlikely to be the returning officer (Krier v. Navarro).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 13(a); art. IV, § 3; art. V, § 20; art. XVII, § 1(c)
• Tex. Elec. Code § 31.043(2); § 67.007; § 67.007(a); § 67.007(d); § 67.009(a); § 67.017(a); § 67.017(b)

Cases and Attorney General opinions:

• Trimmier v. Carlton, 296 S.W. 1070, 1076 (Tex. 1927)
• Krier v. Navarro, 952 S.W.2d 25, 29 (Tex. App.-San Antonio 1997, pet. denied)
• Tex. Att'y Gen. Op. No. WW-728 (1959)
• Tex. Att'y Gen. Op. No. KP-0060 (2016)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0242
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0242.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 1, 2019

The Honorable David Whitley Opinion No. KP-0242
Texas Secretary of State
Post Office Box 12697 Re: Whether the Secretary of State is the
Austin, Texas 78711-2697 "returning officer" under article III, subsection
13(a) of the Texas Constitution, and, if not,
which officer serves in that role in a single-
county legislative district (RQ-0247-KP)

Dear Secretary Whitley:

    Your predecessor asked about the meaning of the phrase "returning officer" as used in

article III, subsection 13(a) of the Texas Constitution. [1] Subsection 13(a) provides:

            When vacancies occur in either House, the Governor, or the person
            exercising the power of the Governor, shall issue writs of election
            to fill such vacancies; and should the Governor fail to issue a writ of
            election to fill any such vacancy within twenty days after it occurs,
            the returning officer of the district in which such vacancy may have
            happened, shall be authorized to order an election for that purpose.

TEX. CONST. art. III, § 13(a) (emphasis added). He questioned whether the Secretary of State is
the returning officer under this subsection, and, if not, which officer serves in that role in a single-
county legislative district. [2] Request Letter at 1.

    Article IV, section 3 of the Constitution, which addresses election returns for executive

branch officers, describes returning officers as those prescribed by law to complete, seal, and
transmit the election returns to the Secretary of State. See TEX. CONST. art. IV, § 3; see also id. art.
XVII, § 1(c) (providing that with regard to elections for proposed constitutional amendments, the
"returning officer in each county shall make returns to the Secretary of State"). The interpretive
commentary to article III, subsection 13(a) submits that the "returning officer mentioned in the
section is the officer who was in charge of the returns of the previous election." TEX. CONST.
art. III, § 13 interp. commentary; see also Trimmier v. Carlton, 296 S.W. 1070, 1076 (Tex. 1927)
(explaining that the county judge was the returning officer based on a statute requiring that the
judge canvass the votes and declare the result).

    The Election Code currently provides that for each election for a district office "the county

clerk of each county in the territory covered by the election shall prepare county election returns."
TEX. ELEC. CODE § 67.007(a); see also id. § 67.017(a) (requiring the county clerk to prepare a
report of the votes received in each precinct after each election for state senator and state
representative). Furthermore, the county clerk must deliver those returns to the Secretary of State
in the manner directed. Id. § 67.007(d); see also id. § 67.017(b) (requiring the county clerk or the
presiding officer to deliver the report of precinct results to the Secretary of State). In conjunction
with this duty, the Legislature directed the Secretary of State to provide the county clerks with an
official form for reporting election returns. Id. § 67.009(a). Thus, pursuant to section 67.007 of
the Election Code, the county clerk prepares and submits election returns for a county district
office and is therefore the returning officer for purposes of article III, subsection 13(a). [3] Id.
§ 67.007(a), (d); see also TEX. CONST. art. V, § 20 (describing the county clerk as an officer); Tex.
Att'y Gen. Op. No. KP-0060 (2016) at 2. The Secretary of State is not the returning officer but
receives the election returns from the returning officers in each county holding an election.

                                  SUMMARY

                  Article III, subsection 13(a) of the Texas Constitution
          provides that when vacancies occur in the Legislature, the returning
          officer of the district in which such vacancy occurred possesses
          authority to order a special election if the Governor does not do so
          within a set time. Pursuant to section 67.007 of the Election Code,
          the county clerk prepares and submits election returns for a single-
          county legislative district and is therefore the returning officer for
          purposes of article III, subsection 13(a).

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Lindsey Aston, Gen. Counsel, Sec'y of State, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 29, 2018), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Article III, subsection 13(a) authorizes the returning officer to order an election in certain instances, but it does not create a duty for the returning officer to do so. A prior opinion of this office explained that the authorization given to the returning officer "is a permissive one: the returning officer may order the election but it is not mandatory that he do so." Tex. Att'y Gen. Op. No. WW-728 (1959) at 2.

[3] The request letter notes that many counties in Texas have county elections administrators who perform "the duties and functions placed on the county clerk" under the Election Code. TEX. ELEC. CODE § 31.043(2); see Request Letter at 2. While the county elections administrator may have authority pursuant to this statute to prepare and submit election returns as delegated by the county clerk, the county elections administrator is not an "officer." See Krier v. Navarro, 952 S.W.2d 25, 29 (Tex. App.-San Antonio 1997, pet. denied) (concluding that a county elections administrator "is but an agent or employee of the county" and does not hold a public office). Thus, a court is unlikely to conclude that a county elections administrator is the returning officer under article III, subsection 13(a) of the Texas Constitution.