Gov. Greg Abbott (R) called a special election for May 5, the uniform election day, to fill the unexpired term of former Rep. Leighton Schubert (R-Caldwell), who resigned. Candidates must file by March 5, which is the day before the primary election. Early voting begins April 23.

The timing of the election relative to the primary and runoff elections could result in different people winning the unexpired term and winning the primary election. This happened in 2016 with HD120. In that case, the eventual primary winner was ineligible to run in the special election, permitting Laura Thompson (I-San Antonio) to become the first independent candidate to win a seat in the Texas Legislature since 1936.

That said, the timing of the election is largely beyond Abbott’s control.

Section 201.051, Election Code, requires a special election be ordered “as soon as practicable after the vacancy occurs.” Schubert resigned January 29. Because the Legislature is not currently in, or imminently about to begin, a regular legislative session, Abbott cannot call an emergency special election on a date of his choosing. Absent this emergency, Section 203.004, Election Code provides that s special election must be held on the first available uniform election date, which is May 5 (The next one is not until November.).

Once the May 5 date is selected, Section 201.054(a)(1), Election Code provides that candidates must file by 5 p.m. on March 5, which is the first business day following the 62nd day before Election Day. As noted, it is also the day before the primary election. Presumably, the five Republicans and one Democrat who filed for a full term would file for the special election. At least three of those Republican candidates will be out of the running for the full term. They could withdraw from the special election by 5 p.m. on March 9 pursuant to Section 145.092(b), Election Code.

Alternatively, those candidates, plus any candidates who are not currently poised to be on the November general election ballot, could press on with their special election campaigns. A winning candidate could still seek re-election in November as a write-in candidate, provided that they did not lose in the primary election. Section 162.015(b), Election Code prohibits candidates who lost their primary elections from running as write-in candidates for the same office in the general election. The deadline for write-in candidates to file for a spot on the ballot is August 20, well after a possible runoff would determine who wins Schubert’s unexpired term.

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