Honorable Donald E. Short    Opinion NO. c-263
County Attorney
Wichita County Courthouse    He: Constructionof Art. 666-32,
Wichita Falls, Texas             V.P.C. in reference to a pe-
                                 tition for a local option
                                 election in the City of
Dear Mr. Short:                  Pleasant Valley.
       In your letter of March 20, 1964, you asked for a con-
struction of Article 666-32, Vernon's Penal Code, in antlcl-
patlon of an Incorporatedcityls local option election to pro-
hibit the sale of alohollc beverages.
      The pertinent part of the statute is:
                 When any such petition so,issued
      shall*wi&ln thirty (30) days after the date
      of Issue be filed with the Clerk of the Com-
      missioners Court bearing the aotual signatures
      of as many as twenty-fiveper cent (25%) of the
      qualified voters of any such county, justice's
      precinct, or incorporatedcity or town, to-
      gether with a notation showing the residence
      address of each of the said signers, together
      with the number that appears on his poll tax
      receipt or exemption certificate,or a sworn
      statement that the signer is entitled to vote
      without holding either a poll tax receipt or
      an exemption certificate,taking the votes for
      Governor at the last preceding General Election
      at which presidentialelectors were elected as
        e basis for determlnln


       session shall order a local option election to
       be held u on the Issue set out in such petition
       . . . .” PEmphasls Supplied)
       The facts as you state in your letter are that the City
of Plea-s&t YGl,eg was Incorporatedsubsequ,ent to the last pre-
ceding general election at which pres’lheri%QL%%Wm?a were
elected. It will therefore be difficult to determine the 25%
requirement.

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        Honorable Donald E. Short, Page 2 (C-263   )



               If the law directs an officer or officers to order an e-
        lection when a certain number of qualified voters have joined in
        a petition, It Is the duty of the officers to ascertain whether
        the requisite number of voters have joined In the petition and
        whether they are qualified. However, the officials will be al-
        lowed to exercise their own discretion in this matter, provided
        that their decision Is based on reason and fairness and is not
        Impelled by fraud or caprice. 21 Tex.Jur.2d 285.
                 The Montgomery County Clerk was faced with a similar
        problem In 1946 in that the City of Conroe wanted to petition for
        a local option election, and the two voting boxes used for gener-
        al elections   extended beyond the city limits. The result was
        that there was no means of detenninlnghow many of the votes cast
        at the last election for Governor, at which time PresidentialE-
        lectors were elected, were actually voters presiding within the
        city limits of Conroe. On that question this office held, in
        Attorney General's Opinion No. o-7218, 1946, that the Cotinty
        Clerk, whenever a petition called for under Article 666-32 Is
        presented to him, may adopt any means he deems necessary and
        proper to determine whether or not the signers of such a petition
        are qualified voters of the county or polltlcal subdivisionand
        to ascertain the number of qualified voters signing the same.
        The earlier case Of Akersv. Remington, 115 S.W.28 71k (Tex.Civ
        A&    1938
              193gi are
                     error
                         lndism
                            acoo&.and Attorney General's Opinion ro. O-

               Since the yardstick for deteklnlng qualified voters pre-
        scribed by the statute cannot be calculated,It appears that
        under the above authority, the County Clerk has the authority
        to adopt fair and proper means to ascertain the qualifications
        of petitioners.
               E%yway of suggestion only, we point out that 25s of the
        number of Inhabitantsof the town of Pleasant Valley before Its
        incorporationthat now lies within the boundaries of the present     \
        City of Pleansant Valley who voted for Governor In the last
        presidentialelection might be an equitable basis for determln-
        lng the sufficiencyof the petition.
                               SUMMARY
                   Under the present circumstances,the
               County Clerk of Wichita County may adopt any
               means he deems necessary and proper to deter-
               mine whether or not the signers of a petition
               for a local option election In Pleasant Valley
               are qualified voters under Art. 666-32, V.P.C.


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        Honorable Donald E. Short, Page 3 (c-263 )


                                      Yours very truly,
                                      WAGGONER CARR
                                      Attorney General of Texas




                                             Assistant Attorney General
        ESC:ls:br
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Norman V. Suarez
        Linward Shlvers
        Charles B. Swanner
        APPROVED FOR THE ATTORNEY GENERAL
        BY: Stanton Stone




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