When a Texas local election was postponed from May to November 2020 because of COVID, did the candidate filing deadline reopen?

Plain-English summary

This opinion came out of the scramble to reschedule elections during the first year of the COVID-19 pandemic. In March 2020, Governor Abbott declared a statewide disaster and suspended parts of the Election Code so that local governments could push their May 2, 2020 elections back to November 3, 2020. Many cities, school districts, and other political subdivisions did exactly that. The catch was timing: the Governor authorized the postponement on March 18, 2020, but the deadline for candidates to get on the May ballot had already passed (February 14 for most offices). Representative Mayes Middleton asked the Attorney General to clarify what happened to the candidate filing periods for elections that moved from May to November.

The AG laid out the conflict rather than resolving it. On one side, the Election Code generally pegs the filing deadline to election day itself, the 78th day before the election for most offices (city offices under section 143.007(c), other subdivisions under section 144.005(d), school district trustees under Education Code section 11.055(a)) and the 45th day before for some others (junior college districts under Education Code section 130.082(g)). Read literally, tying the deadline to "election day" could imply the deadline shifts when the election date shifts. On the other side, the Secretary of State, on the same day the Governor issued his proclamation, put out Election Advisory Opinion 2020-12, which said postponing the election date "is preserving all candidate filings and ballot order actions that have already been taken" and "does not have the effect of reopening candidate filings." The Secretary advised subdivisions to confirm in their postponement orders that the filing period would not reopen for the November date.

The AG pointed out that the Secretary of State is the state's chief election officer, charged by the Legislature with maintaining uniformity in applying and interpreting the Election Code and authorized to issue written directives, citing Cascos v. Tarrant Cnty. Democratic Party and Election Code sections 31.003 and 31.004. But the Secretary's advisory opinion did not cite a specific statutory basis for its conclusion, and no statute directly addressed reopening filing deadlines when an election is postponed after those deadlines have already passed. Calling the question unprecedented, the AG declined to predict with certainty whether a court would uphold the Secretary's conclusion that the deadlines did not reopen. It closed by noting that if the Legislature wanted filing deadlines to move with the election date no matter how the date changed, it could amend the Election Code to say so.

Currency note

This opinion was issued in 2020. 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 opinion was written for legislators and local election officials managing the 2020 postponements. For local governments that had already moved their elections, the practical guidance on the ground came from the Secretary of State's Advisory Opinion 2020-12, which told them the filing periods were closed and should not be reopened for November. The AG's contribution was a caution rather than a green light: it flagged that the statutes tying filing deadlines to election day created a genuine legal question the Secretary's advisory had not fully grounded in statute, so a court was not guaranteed to agree. For candidates who had missed the original May filing window, the opinion offered no assurance that the move to November created a new chance to file. For the Legislature, the AG pointed to the gap and suggested a statutory fix.

Common questions

Q: Did the AG say the candidate filing deadline reopened when an election moved to November 2020?
A: No. The AG declined to decide. It said the question was unprecedented and that it could not predict with certainty whether a court would accept the Secretary of State's conclusion that the deadlines did not reopen.

Q: What did the Secretary of State say?
A: In Election Advisory Opinion 2020-12, the Secretary of State concluded that postponing an election preserved the candidate filings already made and did not reopen the filing period, and advised subdivisions to confirm that in their postponement orders.

Q: Why was there any doubt, if the Secretary of State already answered it?
A: Because the Election Code generally ties the filing deadline to "election day," and the Secretary's advisory opinion did not point to a specific statute supporting its conclusion. The AG noted a court would have to reconcile the statutory text with the Secretary's interpretive authority.

Q: How did the AG suggest resolving the uncertainty?
A: By legislation. The AG observed that if the Legislature wanted filing deadlines to follow the election date whenever it changes, it could amend the Election Code to say so clearly.

Background and statutory framework

Texas candidates for most offices must file an application for a place on the ballot by a deadline measured from election day, generally the 78th day before the election (Election Code sections 143.007(c) and 144.005(d), Education Code section 11.055(a)) and the 45th day before for certain offices like junior college district seats (Education Code section 130.082(g)). The general filing requirements appear in Election Code subchapter B (sections 141.031 through 141.041), with office-specific provisions in sections 143, 144, and 172. The Secretary of State sits at the center of administering these rules: under Election Code sections 31.003 and 31.004, the Secretary is to maintain uniformity in the application, operation, and interpretation of the Election Code and may issue detailed written directives, and the Texas Supreme Court in Cascos v. Tarrant Cnty. Democratic Party described the Secretary as the state's chief election officer responsible for uniform interpretation of election laws. The COVID-19 postponements arose from the Governor's March 2020 disaster declaration and his proclamation suspending Election Code provisions to allow the May-to-November move. The interpretive question the AG addressed was the friction between deadlines pegged to election day, an election date that moved after those deadlines passed, and a Secretary of State advisory (Election Advisory Opinion 2020-12) that kept the filing periods closed without citing a controlling statute. The AG also referenced its own prior Opinion DM-168 (1992) on the limits of predicting how a court would resolve an unsettled question.

Citations and references

Statutory provisions:

• Tex. Elec. Code § 143.007, § 144.005 (filing deadline tied to the 78th day before election day); §§ 141.031–.041 (application for a place on the ballot); §§ 31.003–.004 (Secretary of State's uniform-interpretation authority)
• Tex. Educ. Code § 11.055, § 130.082(g) (school district and junior college district filing deadlines)

Key case:

• Cascos v. Tarrant Cnty. Democratic Party, 473 S.W.3d 780 (Tex. 2015) (Secretary of State is the state's chief election officer responsible for uniform interpretation of election laws)

Related materials referenced:

• Election Advisory Opinion No. 2020-12, Texas Secretary of State (March 18, 2020) (postponement does not reopen candidate filing deadlines)
• Tex. Att'y Gen. Op. No. DM-168 (1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0346.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 16, 2020

The Honorable Mayes Middleton
Co-Chair, Joint Interim Committee to Study a Coastal Barrier System
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0346

Re: Extension of filing deadlines for elections postponed pursuant to the Governor's proclamation allowing for the postponement of the May 2020 local elections (RQ-0363-KP)

Dear Representative Middleton:

You ask about the candidate filing periods and deadlines under the Election Code for local elections moved from May to November pursuant to gubernatorial proclamation.¹ In conjunction with his March 13, 2020 COVID-19 disaster declaration, Governor Abbott suspended provisions of the Election Code to allow political subdivisions to postpone their May 2, 2020 elections to November 3, 2020.² Many did so.³ The Governor authorized the postponement of the May 2 elections after the filing deadlines for those elections had passed.⁴ You ask us to clarify the timeline for the filing periods for elections that political subdivisions moved from May 2020 to November 2020 pursuant to the Governor's authorization. Request Letter at 1.

As a general matter, candidates for elected office in Texas must file an application for a place on the ballot. See, e.g., TEX. ELEC. CODE §§ 141.031–.041 (subchapter B "Application for a Place on the Ballot"); see also id. §§ 143.001–.008 (applying to a candidate for city office), 144.001–.006 (applying to candidate for office of political subdivision other than county or city), 172.021–.029 (applying to candidates in the primary election for offices of state and county government); TEX. EDUC. CODE §§ 11.055 (applying to candidates for independent school district trustee), 130.082(g) (applying to candidates for the governmental body of a junior college district other than an independent school district). For most offices, the deadline for a candidate to file an application for a place on the ballot is the "78th day before election day." E.g., TEX. ELEC. CODE §§ 143.007(c) (providing, for city offices, that "[f]or an election to be held on a uniform election date, the day of the filing deadline is the 78th day before election day" (emphasis added)), 144.005(d) (providing, for offices in political subdivisions other than a county or city, that "[f]or an election to be held on a uniform election date, the day of the filing deadline is the 78th day before election day" (emphasis added)); TEX. EDUC. CODE § 11.055(a) (providing, for an office on the board of trustees of an independent school district, that "[a]n application of a candidate for a place on the ballot must be filed not later than 5 p.m. of the 78th day before the date of the election" (emphasis added)). For other offices, the deadline for an application for a place on the ballot is the 45th day before the date of the election. E.g., TEX. EDUC. CODE § 130.082(g) ("Any resident, qualified elector of the district may have his or her name placed as a candidate on the official ballot for any position to be filled at each regular election by filing with the secretary of the board a written application therefor signed by the applicant, not later than 5 p.m. of the 45th day before the date of the election." (emphasis added)). Thus, the statutes tie the "filing deadline" directly to the "election day."

Despite this, the Secretary of State concluded that the filing deadlines did not track with the revised election dates when postponed to November. On the same day the Governor issued his March 18, 2020 proclamation, the Secretary of State issued an election advisory opinion explaining that the Governor's proclamation did not reopen the candidate filing deadlines. See Election Advisory Op. No. 2020-12, Sec. of State (March 18, 2020). The opinion declared that "[b]y postponing their election date, the political subdivision is preserving all candidate filings and ballot order actions that have already been taken. The postponement does not have the effect of reopening candidate filings." Id. at 1. Thus, under that opinion, the candidate filing deadlines, having already passed when the Governor issued his proclamation, could not be extended. In advising political subdivisions on how to move May elections to November, the Secretary of State said to include in their postponement orders "[c]onfirmation that the candidate filings for the election will remain valid for the election held on the November date and that the filing period will not be re-opened for the November election date." Id. at 3. Thus, by the terms of the election advisory opinion, an order of a local political subdivision relying on the authority granted in the Governor's proclamation to postpone its May election to November could not provide for a re-opening of the filing periods. In the advisory opinion, the Secretary of State did not expressly provide a statutory basis under which this conclusion was reached.

Nevertheless, the Secretary of State is the "state's chief election officer responsible for ensuring the uniform application and interpretation of election laws throughout Texas." Cascos v. Tarrant Cnty. Democratic Party, 473 S.W.3d 780, 786 (Tex. 2015). The Legislature charged the Secretary of State with maintaining "uniformity in the application, operation, and interpretation of" the Election Code, and authorized the Secretary to "prepare detailed and comprehensive written directives and instructions relating to and based on" the Election Code. See TEX. ELEC. CODE §§ 31.003–.004. A court addressing your question would need to reconcile the language of the statutes, the Secretary of State's express authority to apply and interpret election law in a uniform manner, and the lack of specific statutory instruction on the reopening of filing deadlines when an election is postponed after those deadlines pass. Given the unprecedented nature of this question, we cannot predict with certainty whether a court would accept the Secretary's conclusion, contained in Election Advisory Opinion 2020-12, that the candidate filing deadlines are not reopened by operation of the Governor's suspension of elections. See generally Tex. Att'y Gen. Op. No. DM-168 (1992) at 4. But if the Legislature intends for the filing deadlines to follow election dates no matter how or when or by whom they are changed, the Legislature may choose to amend the Election Code with additional clarity.

S U M M A R Y

In conjunction with his COVID-19 disaster declaration, Governor Abbott suspended provisions of the Election Code to allow political subdivisions to postpone their May 2, 2020 elections to November 3, 2020. Alongside the Governor's suspension, the Secretary of State's office simultaneously issued an Election Advisory Opinion explaining that the order to allow for postponing the May election did not reopen the candidate filing deadlines.

A court addressing your question would need to reconcile the language of the statutes tying the filing deadlines to election dates, the Secretary of State's express authority to apply and interpret election law in a uniform manner, and the lack of specific statutory instruction on the reopening of filing deadlines when an election is postponed after those deadlines pass. We cannot predict with certainty whether a court would accept the Secretary's conclusion, contained in Election Advisory Opinion 2020-12, that the candidate filing deadlines are not reopened by operation of the Governor's suspension of elections. To the extent the Legislature intends for election filing deadlines to move in such circumstances, the Legislature may choose to clarify in the forthcoming legislative session by amendment to the Election Code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee