                    OFFICE     OF THE AlTORNEY            GENERAL   OF TEXAS
                                               AUnTIN
a-0.w




        Honorable Oharlem
        Criminal Dlrtriot
        Oorrioaaa, Texar
        Dear 81r1




                                                                           this   Departmnt




                                             ld on roam dab      betwoen    now and the



                                      6, 1940, wa wrbto you rrqueatlng            additional
        information    oonownlng        the above mentlonod quertioa.
                      we     quote   rrom   your letter     or Augurt 7, 1940,      aa rot
        lowrr
Honorable   Char188 T. Banister,    Fage 2



             #In rsply to your letter  Of August 6, 1940,       pertain-
     ing to additional    information in referonce  to the      abore
     asationsd   oaption,  we hrreby quota the request of       the
     potltionars and the rssolndlng    order as stated ln       the
     mlnutss or the Oommlssionsrs~ Court;

                     * ’SPECIAL SESSION
                   Saturday, June 15, 1940

            a’Thl8 Speolal Session being oalled by the Oounty
     fudgs, Paul H. Klllsr,     ror the purpose or oonsldering   the
     request from a rspresentatirs      of the signers of the psti-
     tfon hsretorore    riled in this court asking ror the oalling
     of a spaolal beor eleotlon     ln this oounty, was called   to
     order at 2115 o’olook     P. K. this day with the rollowing
     prsssnt I
            County Judge, iaul E. Ulller
            Joe A. Georgs, Commlssloner, Preolnot No. 4
            C. M. fittgsrald,    Preoinot No, 2
     Rev. B, T. Miller appeared before the Court and presented
     the followlng   request t
                                               CorsloaAa, Texas
                                               June 15, 1940
     To ths Commlssloners Court
     or Xararro   County8
             I, E. T. Miller,    as spokesman for the other Five
     hundred SAd forty-two      (542) qualified       voters of K&varro
     Couty , Texas, who prssented to the Commlsaloners~ Court
     of said oounty a petition       asklllg for a epeolal beer eleo-
     tion, and beiA& the mime X. T. Killer who presented tbs
     above mentioned petition      to the Commiesloners~ Court on
     June 1, 1940, do, this day, June 15, 1940 ask said Commls-
     sionsrs’ Court to resoind ths motion 0allLg              for said
     eleotion,    and earnestly   implore your so doing, for the
     reason that there is a possibility           of a~ ukavoldable
     irrrgularlty    ii the prooeeding      oallir?g for such eleotion
     and It.1 that In view of suoh possibility,             ii the election
     should be won by the dries,       aotlon alght be taken in court
     to set aside said election,       thus inourrlng undue expense
     ror all part188 conosrned.
             I want to go on reoord aAd hare the Court understand
     that somstlms after the primary we expect to ask you to
     aall suoh slrotlon     at some suitable        date.
                                                          3. T. Xlller.  *
:!onorable   Charles       T. SanIstsr,   iage   3



               “COnUissioner   G4ores than made the iollowIq     motion:
       1 move that the notion of the CofmaIssIoAers* Court taken
       herstOtOr* On JUne 13, 1940, Oalling 8lSOtIOA to be held
       On June 24, 1940, to dotermine whether the sale or beer
       OOctclinis   aloohol not esoosdlng Sour per oentum (4s) by
       Weight,   shall be prohibited  In Navarro County, be resoinded,
       aAd that the County Clerk be Instructed      not to post AotIces
       or said eleotion as Qrsriously    oulled OA JuAs 13, 1940.
       EOtIoA was seoonded by ComIsslonsr      Eitzgerald,  and upon
       behg    put to a vote, oarrled unanimously.     All present
       voted *aye”.

              ‘**It is theretore  ordered by the Coamissioners*       Court
       that the uctloc   of the court heretofore    tuken OA June 13,
       19&O, oellIr<; a beer elcctior.   for &Ae 24, 1940, ba, and
       it ip hereby resckded     and wlth&rtm~.   i’he County Clerk
       1s hereby ordored not to post notices     for asid election.‘”
           SeotioA 32 , .*tIole           1, or the Texas Liquor   Control
Aot reads as rollous:
                *%he ooaziesioAer6’      oourt 0: each county in tiia
        state upon its o~ia motloo say order an election            to be
        held by tht; ;uallfled      voters cl said osunty, to determine
        whether or not t:ls sale cf liquor shall 36 prohibited             or
        legalized   in such county, and suoii court s&l1 order a
        1ooAi option eleotion       whenever ;etItIoned      to do so by as
        many as ten (10) per cent or tta ~ualirlaa            votera or said
        county, or of any justice        ynolr~ot,    city or town, taking
      /the votes i’or governor st the last preoedi~              general elec-
        tlori YS the uaaia for deteraiAIAg         the quallried    voters In
        any such couuty, or poll tic31 subdivision.            dter    the rlrst
        local o@lon election        held as provided ln tSIs aot, in ony
        OouAty, justice     preoinot,    lnrorgorated     tom, or oity,    no
        3ubse;ueAt election      upon the 3~10 Issue IA the aa* r;olItIoal
        subdlvfnlon    shall be held y;IthIa one (1) yea? fron the date
        of the preceding     looal option eleotlon        IA said OouAty, or
        said political     subdlrlelon    of said Oouuty.a
                 action     33, Article   1, of the Tezao Liquor    Control
Aot   prorIdes     that:
              “:&en the commissIonerr*      court shall order aA ehotiOn
       as herein provided for, It shall be the duty Of Said OOurt
       to order such eleotion     to be held at the VOtIAg Places
       wIthIn such subdivision     or oounty upon a day not less than
       ten (lo) nor more than twenty (20) days rrom the date or
       said order, and the order thus made shall sxpress the ObjsOt
       or such eleotlon     and shall be held to be prima faoh      erldenoe
       that all or the provIsloAs     neoessarg to give It validity      or
       to OlOthe the    court  with jurIsdIotlon   to aske It valid,
Honorable     Charlea T. Banlater,     Page 4


      “hare    bean duly oompliad with,     proridr4    that   aal& oourt
      ahrll    l&qolnt luoh ottloora     to hold auoh elaotlona      aa
      now tequlr.4     to hold genaral    eleotlonr.”
               The Taraa Liquor Control Aot further proridaa that
the olerk     Of aald court (ootiaalonera’          oourt) aball peat or
06Uae     to be poatab at leaat   one oopy of raid order in eaoh
lleo tiopnr eo lnoin     t auoh politloal     aubdiriaion    or oounty
affeofed,     for at least air (6) days         rlor to the 6~ or thr
eleOtion,     whloh lleotion   ahall be he P4 an4 the return theroof
Bade in oonformity with the prorlalona             of tha general lawa of
the State, and by the lleotlon         ofrloere     appointed and quallrla4
under auoh law.
             %‘ilth reierenoe    to an order for an eleotlon,      It la
said in Texas Juriaprudenoe,         Volume 16, page ES, that    *In all
oaaea muoh la neoesaarlly        left to tha dlaoretlon    or the ofrioara
authorized   to oall the eleotion.        If the menner of performance
ia such as till     reasonably aoaompllah the purpose oi the law,
It ahould bo held aufflolent.          It has been aald that, compare4
to the importanoe of effectuating         the objeot of every eleotion,
the question aa to the manner of ordering an eleotlon             la of
tri+tal   moment.            Eowever, in apeoial or local eleotlona
all the requlremek~        it law ahould be substantially      if not
literally   oomplled with.       If the failure   of the election     ofiloera
to oomply with statutory       requirements haa resulted      in a denial
of the right to vote to a number of elector8          auffloient     to
have ohanged the reeult,        then the alaotion   la nugatory and void.”
              The oomzliaeionera’ oourt, aa a Court of general
jurlsdlotlon,    haa full oontrol over its judgnente during the
term at which they are rendered, an4 may rorlee or reaolnd ordera
at the term    at which they are made, prorldod      that this be done
before any righta have accrued thereunder.          ‘Where the action
of the court in a partloular       oaae 18 judiolal   and not admini*-
trative,    the ordera or deoreea may not be 8et aalde at a aubae-
quent term.     Howeyer, the comaisaionere~     oourt haa the power to
rescind or vacate an order made in its legislative          or adminlstra-
tlve capacity,    l-far     aa vested rights Is8 not impaired. Aueuat
A. Busoh & Co. ‘I. Cufleld,     135 9. I. 2441 Collfngaworth       County
t. Myera, 36 S. ‘h, 414; BarerMmn         T. Coryell CO., 847 30 R.
1086; Texas turlaprudanoe,      Vol. 11, pe 673.
Honorable    Charles   T. Banlater,   Page 3



            We believe  that the aot of the CommIaelonera*
Court on June 13, 1940, oalllng     a nlleotlon    ?or the 84th day
o? June, 1940, was olearly an admlniatratire        oao, aad an lot
whloh the Commissioners* Court had a lagal right to maoin&.
It will be note6 t&t the petltlo~ra        through their apoker-n
did not dealre or attempt    to withdraw the petition      prose&e&
to the Commiasionera~   Court    but only in lffeot     asked that
the or&or calling   the eleotfon   be reaolnded, an4 that It was
their purpose to hare the oourt to oall an lleotlon at aoma
lultable  data other then the original date ror whioh tha
lleotlon  had been oalled.     The atatute (Seotlon Se 0r Artlole        1,
Texaa Uquor Control Aot aupra) providing         for looal OptIon
elections  upon the petitjon    of the votera dbia not apeoify
the time or the term of the oourt at whloh the oommlaelonera’
court muat lesua auoh order for an eleotlon.         Rowever, the
eleotion  must be ordered within a reasonable       time after   the
oommlealonera* oourt reoelvos     a valid petition    therefor.
             When you r&or to the next presidential     election
In November In your inquiry wa presume that you have referenoe
to the next general election,    aa Seotlon 32, aupra provider
in erreot that ea many aa ten per oent o? the quali?Ied        votera.
of a oertaln   oounty or any political    eubdlvialon of the oounty,
taking the votes for the governor et the laet preoedlng general
election  as a basla ror determining the quellfled     voters In
any suoh county or polltlcal    aubdlvlalon.
              YOU are respectfully     advlaed that it la the opinion
of thla Department that ii the 542 petitioners         who eigned the
original   petition    constitute   ten per cent or more of the quall-
rled votera of raid oounty, taking the votes ?or governor at
the laat ?moedlr;8      general election    a8 a baa18 ior determining
the quallrlea     votera In the oounty, the COmmi8SlOnOrB’Court
oan legally    call M eleotlon      to be held on some date between
now .and the next general eleotlon       upon the basil of the Barn4
petition   orlgitally    presented.
              Truatlng   that the roregolng     fully   0nawera   your
inquiry,    we are
                                               Your8 very truly
