                                                GENERAL




                                      July   30,    1963



Honorable   James E. Barlow                     Opinion    No. C- 116
Criminal District    Attorney
Bexar County                                   Re:     Construction   of Sec. 3, Art.
San Antonio,   Texas                                   IX of the Constitution   relative
                                                       to vote required   for adoption'
Dear Sir:                                              of a county home rule charter.

             In your letter    requesting     an opinion      of this office,   you
 state that Bexar County is in process            of drafting    a home rule charter
 to be submitted     to the voters    early In the fall,        and you ask for an
opinion    on the number of votes which are required             to adopt the char-
 ter.    In substance,   your question     is whether the vote required         is a
majority    of the qualified    electors     eligible    to vote,    or only a majority
of those actually      voting at the election.         Directly     Involved  Is a noti--
struc.ticn  of the following    provision     in Subsection      (2) of Section   3,
Article    IX of the Texas Constitution:
              1,     .No County Home Rule Charter may be adopted
      by any'c&nty         save upon a favoring          vote of the resident
      qualified      electors   of the affected          county.      In elections
      submitting      to the voters      a proposal       to adopt a Charter
      (unless     otherwise    provided    by a two-thirds           vote of the
      total    membership of each House of the Legislature)                     the
      votes cast by the qualified            electors       residing     within    the
      limits     of all the Incorporated          cities     and towns of the
      county shall be separately           kept but collectively             count-
      ed and the votes of the qualified                electors      of the county
      who do not reside        within    the limits       of any incorporated
      city or town likewise         shall be separately            kept and separ-
      ately    counted,     and unless    there be a favoring            majority     of
      the votes cast within and a favoring                  majority     of the votes
      cast without       such collective       cities     and towns, the Charter
      shall not be adopted."

           Acting under the provision    authorizing    the Legislature  to
change the requirement   for separation   of the votes cast within and
without  the cities  and towns, the Legislature      in 1951 passed a statute
(Article  1606b, V.C.S.)  which provides   as follows:


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Hon. James E. Barlow,       page 2 (C-     116 )



             “Authority   is hereby conferred      upon Bexar County
      to adopt a ‘Home Rule Charter’ In accordance              with the
      provisions    of Section   3 of Article     IX of the Constitu-
      tion   of Texas by a favoring      vote of the resident        quall-
      fied electors     of said County,     and It shall     not be neces-
      sary for the votes cast by the qualified            electors    residing
      within the limits      of all the incorporated       cities    and
      towns of the county to be separately          kept not separately
      counted from those cast by qualified          electors      of the
      county who do not reside       within the limits       of any in-
      corporated    city or town, and a favoring        majority     of the
      votes of such electors       cast in the county as a whole
      shall determine     the result    of such election.”

             In your brief     you have reached the conclusion            that the
language of the constitutional           provision    requiring     “a favoring    vote
of the resident     qualified     electors     of the affected     county”    makes
a majority     vote of all qualified       electors     necessary    for adoption
of the charter.      You have concluded,         further,    that Article     1606b
is unconstitutional      because it attempts         to require    only a majority
of the votes cast at the election,             and that the election        in Bexar
County will have to proceed          under the provisions        of Article     1606a,
V.C.S.   (the general     enabling    statute)     and the votes In the cities
will have to be kept and counted separately               from the votes in the
remainder of the county.

             Section   15 of   Article    1606a provides:

             “If the election      results  In a constitutional
      majority   of the votes cast in the election          being
      for the charter,        the same shall be declared     to be
      adopted. . . . I . . I’

Section   15a of Article      1606a repeats   the provisions   of Section     3,
Article   IX quoted above,       except for omission   of the parenthetical
language permitting        the Legislature   to change the requirement      for
a favoring    vote both within and without       the cities   and towns.     You
have concluded      that,   In view of Section   15a, the “constitutional
majority”    required     by Section   15 means a majority   of the qualified
electors   of the county.

           We are unable to agree with your construction             of the
quoted constitutional      provision.     The first   sentence   of the quotation,
standing  alone,   Is ambiguous,      but when.construed    In conjunction       with
the succeeding    sentence   we think it Is, clear      that “a favoring      vote
of the resident    qualified    electors   of the affected     county”    means a
majority  of the votes cast at the election.           The phrase     ‘resident




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Hon. James E. Barlow,         page   3 (C-     116 )



qualified       electors     of the affected     county”   defines    the persons
eligible       to vote,    but does not define -~the basis on which the
favorable       vote shall be determined.          The second sentence        explains
the vote required          for adoption.      It provides     that (unless      other-
wise provided         by Legislature)     the charter    shall not be adopted
“unless      there be a favoring        majority   of the votes cast within and
and a favoring          madority of the votes cast with           t      h collective
cities     and towns.          (Emphasis added,)      In our Ei,nii:,      the intend-
ed meaning of these provisions             is that the converse        shall also be
true,    i.e.,     that the charter      shall be adopted If there Is a favor-
ing majority         of the votes cast within and a favoring             majority     of the
votes cast without           the cities   and towns.     We do not find any warrant
for reading        Into   these provisions      the further    requirement      that the
combined majorities           must be a majority      of all qualified      electors
of the county.

             The construction     we place on the provision             under consider-
ation Is supported     by other      rovlsions     in Section      3 of Article     IX.
Paragraph e of Subsection        (3 P provides      that ‘any county may, by a
majority    vote of the qualified       electors     of said county,        amend its
Charter to include      other powers. ., . . .“’ -Subsection           (7) provides     that
charters    shall make appropriate       provision      for the abandonment,        revo-
cation,    and amendment-thereof,       “subject     only to the requirements
that there must be a favoring         ma.lorit?? o??f %ie vote cast upon such
a proposal,     by the qualified     resident     electors      of the county....,.       .I’
  Emphasis added.)      In view of Subsect ion (7),           It Is clear     that
‘
\
 majority    vote of the qualified       elect ors of said county” means a
majority-of     those voting   at the election.           The similar     language,
“favoring    vote of the resident       qualified      electors    of the affected
county,”    should be construed      to have similar         meaning.    Walker v.
Ko er     99 S.W.2d 1034 (Tex.Civ.App.         1937, error dism.);          39 Tex.
3iiki01,     Statutes,    Sec. 108.

              Attorney    Qeneral’s     Opinion No. C-54 (1963) Involved                the
vote required      for creation      of hospital     districts      under Section        9,
Article    IX of the Constitution.           One yovislon        of the section         states
that a district       shall   not be created        unless    approved by a majority
of the qualified        property    taxpaying    electors      thereof     voting    at an
election    called    for the purpose,”       whereas a subsequent            provision
states    that no district       shall be created       except by act of the Legls-
lature    “and in no event may the Legislature               provide     for a district
to be created      without    the affirmative       vote of a majorlt            of the tax-
paying voters      in the district       concerned.”       In holding       t Kat the latter
provision     was not Intended to require           anything      more than, a majority
vote of those voting at the election,               the opinion       alluded     to the rule
stated in 39 Tex.Jur.         162, Statutes,      Sec. 91, to the effect             that a
statute    should be given a reasonable           and sensible        construction,        and




                                             -578-
                                                                                        -      .




Hon. James E. Barlow,          page 4 (C-     116 )



irrational     conclusions       or deductions      should be avoided        in   the
absence of     compelling      language found       in the enactment.

               This rule may aptly be applied             to the present        inquiry.
Apart from the clarifying             language following        the provision,       a very
practical     argument for concluding            that the provision         under consider-
ation was not intended            to require     a majority    vote of all qualified
electors     Is that there is no means by which the canvassing                      authorities
may accurately        ascertain     the number of qualified           electors     in the
county.      In 1933, when the County Home Rule Amendment was adopted,
as at the present          time, voters      exempt from payment of the poll tax
on the ground of overage and who do not live in a city of 10,000
or more Inhabitants           are not required       to obtain an exemption certifi-
cate or to register           In any manner.       Also,   at that time certain          per-
sons exempt on the ground of nonage or nonresidence                       were not required
to obtain     exemption certificates.             Arts.   2968, 2969, R.C.S.         of 1925.
Moreover,     the tax collector’s          list   of qualified      voters     might not
accurately      reflect     as of the day of the election            the number of qualified
voters    in the county who were required               to obtain poll tax receipts            or
exemption certificates,            because of deaths and removals into and out of
the county after         the receipts      and certificates       were Issued.        A requlre-
ment for a majority          vote of all qualified         electors      might leave the
outcome of some elections             unresolved    or in doubt because of the in-
ability    to determine        the number of qualified         electors.        It is unreason-
able to believe         that such a result        was intended      In the absence of
compelling      language.

              In view of the lack of means for accurate                    ascertainment       of
the number of         ualified      electors    in the county,        the constitutionality
of Article       160 %b could be sustained           on the authority        of City of Fort
Worth v. Davis,        57 Tex. 225 (1882),           even if the constitutional           pro-
vision    Itself     should be construed          to require      a majority    vote of all
qualified     electors      residing      in the county.         In that case the court
held that a constitutional              provision     authorizing       the levy of a munici-
pal tax “If two-thirds            of the taxpayers         of such city or town shall           vote
for such tax” required            an affirmative        vote of two-thirds        of all the
taxpayers     in the town who were qualified                voters,     but the court upheld
a statute     implementing        the constitutional          provision    which required       an
affirmative       vote of two-thirds         of the taxpayers         voting   a,t the election,
on the ground that the constitution                  prescribed      no means of ascertaining
the number of taxpaying            qualified      voters    in the city and it was ,competent
for the Legislature          to adopt the number of votes cast as the test for
the number of taxpaying            voters    on the day of the election.

             Since succeeding   provisions   in Section    3, Article    IX clarify
the meaning of “a favoring      vote of the resident     qualified    electors    of
the affected     county,”  It is unnecessary   to dwell on what construction
would be given the quoted language standing         alone;   but it might be



                                            -579-
Hon. James E. Barlow,      page    5 (C-   116     )



mentioned that the Texas courts          have held that constitutional          and
statutory    provisions   requiring     a majority    vote of the qualified'
voters    mean a majority    of those actual1        voting    at the election.
Bradshaw v. Marmlon, 188 S.W. 973 (19167;             Marsden v. Troy
   W 9bl (Tex.Clv.App.       1916);   SW                        195 S W 53i8TTex
&v:App.     1917); State ex rel.      Wilkinson    v. S elf,     191 S.fi.2d 756 ,*
(Tex.Clv.App.     1945)   Eason v. Robertson,        288 S . W.2d 269 (Tex.Civ.
App. 1956, error di&n.).         Whll    th e reasoning      In some of the cases
might allow for a distinction         between the use of the phrase "quali-
fled voters"     and the phrase "qualified        electors,"      the reason advanced
in other cases is equally        applicable    to either      term.

             It is our opinion      that Section   3, Article    IX of the Constl-
tution   requires    only a majority     vote of the qualified     electors  voting
at the election.       We therefore     are of the opinion    that the provision
in Article     1606b, V.C.S.,    requiring   a favoring   majority    of the votes
cast is not in conflict       with the Constitution.

                                  SUMMARY

            The vote required      by Section   3, Article    IX of
      the Texas Constitution       for adoption    of a county home
      rule charter    Is a majority     of the qualified     electors
      who actually   vote at the election       rather   than a majority
      of all qualified    electors     eligible  to vote.

                                           Yours       very   truly,

                                           WAGGONER CARR
                                           Attorney General


                                           By27       K                %=+=
                                              Mary . Wall
                                                 'Assistant
MKW:jh:mkh

APPROVED:
OPINION COMMITTEE

W. V. Geppert,   Chairman
J. S. Bracewell
George Gray
Milton Richardson

APPROVEDFOR THE ATTORNEYGENERAL
BY: Stanton Stone



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