             THE       ATTORNEY       GENEZUE
                          OF TEXAS




Honorable Oscar William Loyd, II        Opinion No.    JM-1133
Criminal District Attorney
P. 0. Box 216                           Re:   Certification of a
Gilmer, Texas   75644                   petition  and financing
                                        of a local option   elec-
                                        tion under the Alcoholic
                                        Beverage Code   (RQ-1865)

Dear Mr. Loyd:

     You ask two questions  about local option liquor elec-
tions. Your first question   concerns the interpretation   of
section 251.10 of the Alcoholic Beverage   Code (the code).
That section prescribes    the requirements   for    counting
signatures on a petition requesting a local option     liquor
election.  Subsection (b) of that section provides:

            (b) No sianature mav be counted,   either
        by the registrar    or commissioners   court,
        where there is reason to believe that:

                (1) it is not the actual        signature
           of the purported signer:

                (2) the voter registration            certi-
           ficate number is not correct;

                 (3) the voter registration   certi-
           ficate number is not in the actual hand-
           writing of the signer:

                 (4) it is a dualication either of a
           fl                                   other
           sianature on the oetition;

                 (5) the residence   address  of         the
           signer is not correct or is not in            the
           actual handwriting of the signer; or

                 (6) the name of the voter  is           not
           signed exactly as it appears    on            the




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Honorable Oscar William Loyd, II - Page 2   (JM-1133)




           official  copy of   the current   list of
           registered voters for the voting year in
           which the petition  is issued.   (Emphasis
           added.)

Specifically, you ask whether the language underlined   above
requires that each entry that appears to violate   subsection
(b)(4) is to be disregarded in determining the sufficiency
of the petition signatures or whether the first entry in a
questionable series may be counted as a valid      signature.
You offer the example of a voter who signs his name on a
petition more than once, and ask whether the first entry    is
a "duplication."

     In an eailier opinion of this office, the provisions of
section 251.10(b)(6) were determined   to be unambiguous   and
mandatory.   Attorney  General Opinion JM-501    (1986).   The
registrar of voters has no authority to waive the signature
requirements of that subsection.    Id. By its terms,     sub-
section (b) states that "BQ signature may be counted"    under
certain circumstances.   We do not believe that the language
prohibiting duplicative names or handwriting    can reasonably
be construed   to allow the counting   of the "original*' or
first name in a series and to disallow        the subsequent
entries. The plain meaning     of subsection   (b)(4) is that
each name that appears more than once and each name that
appears to be written in the same handwriting        is void.
Several   definitions  that support our reading      of   sub-
section (b)(4) are found in Webster's Ninth New Collegiate
Dictionary, which defines "duplicate" as:

        being the same as another . . . either of two
        things exactly alike and [usually] produced
        at the same time or by the same process
        . . . one that resembles or corresponds    to
        another.


Thus, it is our opinion that all of the signatures or names
in a series that appear to violate subsection (b)(4) are to
be disregarded  in verifying  a petition  regardless of the
order in which they may appear on the petition.

     Your second question relates to the payment of expenses
in an election held pursuant to the code. Section     251.40
provides that county expense is limited to the holding    of
only certain   local option liquor elections  per year.   It
also authorizes   the county to obtain reimbursement     for
election  costs in cities or towns within       the county.




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Honorable Oscar William Loyd, II - Page 3         (JM-1133)




Section 251.41 requires a deposit before the issuance of a
petition for elections when the county, is not required  to
pay the expenses under section 251.40.    In its entirety,
section 251.40 provides:

            (a) Subject to the limitations set forth
        in Subsections (b) and   (c) of this section,
        the county shall pay the expense of holding a
        local option election authorized by this code
        in the county, justice precinct, or incor-
        porated city or town in that county, pro-
        vided, however, that if an election is to be
        held only within the corporate    limits of a
        city or town located wholly within the county
        and not elsewhere, the county may require the
        incorporated city or town to reimburse     the
        county for all or part of the expenses      of
        holding the local option election.

             (b) County expense is limited to the
        holding      of one election          in each of the
        political subdivisions in Subsection (a) of
        this section in a one-year period where the
        intent
           -     ^of - the
                         . _.election
                                .          is to legalize the
        Sale   or  alcOnollC    beverages.      County expense
        is limited to the holding of one election           in
        each of the political            subdivisions in Sub-
        section (a) of this section in a one-year
        period where the intent of the election is to
        prohibit the sale of alcoholic beverages.

            (c) All other local option elections
        shall be paid by the county from funds
        derived by the county as prescribed   in
        Section 251.41 of this code.

Section 251.41 provides:

           (a) If under Section 251.40 of this code
        the county is not required to pay the cost of
        the election, the county clerk shall require
        a deposit before the issuance of a petition
        for a local option election.

           (b) The deposit must be in the form of a
        cashier's check in the total amount of 25
        cents per voter listed on the current list of
        registered voters residing   in the county,




                                  p.   5964
Honorable Oscar William Loyd, II - Page 4   (JM-1133)




        justice precinct,  or incorporated   city   or
        town where the election is to be held.

           (c) The money received shall be deposited
        in the county's general    fund.   No refund
        may be made to the applicants      regardless
        of whether the petition is returned to the
        county clerk or the election is ordered.

            (d) The county clerk may not issue a
        petition to the applicants unless the deposit
        is made,  if a deposit is required by this
        code.

           (e) A violation of Subsection (d) of this
        section is a misdemeanor    punishable by a
        fine of not less than $200 nor more than
        $500, or confinement in the county jail for
        not more than 30 days, or both.

Specifically, you inquire about the 25 cent per voter
deposit requirement  prescribed by section 251.41(b).    You
ask what the legislative intent was in requiring the deposit
and whether the county must hold an election for which the
deposit is inadequate.1

     This deposit  provision was added to the statute      in
1967. The documents    relating to the legislation     which
established the deposit requirement did not reveal the logic
used by the legislature in selecting the 25 cent per voter
amount. Subsection (c) of that section provides that the
deposit will be placed    in the county's general  fund; no
refund is allowed whether the petition is returned or an
election is held. The legislature must have envisioned   the
county receiving deposits,   on occasion, that would not be
expended in a particular    election.  The section does not
provide for the collection    of additional funds from the
petitioner after the actual election expenses     have been
incurred.   Subsection   (a) of section 251.41 makes the
deposit a condition precedent to the issuance of a petition,
not the ordering of the election.




     1. You do not inquire about, nor do we address,     any
question as to the constitutionality of the 25 cent      per
voter deposit requirement.




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Honorable Oscar William boyd, II - Page 5   (JM-1133)




     We think the provisions contemplate that a fund will be
maintained from deposits collected    and that the costs of
elections for which deposits are required under section
251.41 shall be paid from that fund     (except to the extent
reimbursement of. expenses required by the county under
section 251.40(a)   covers   ,said costs) .     Thus,  it _ is
irrelevant under the statute if the deposit for a particular
election does not cover its cost, since the            statute
contemplates that the costs will be paid not from that
particular deposit but rather from the fund accumulated from
all deposits past and future. If the fund is inadequate to
pay for an election, the.costs of which are required by the
statute to be paid from the fund, then we think the county
must wait until the fund is replenished by future deposits
to recoup any county money proper which had to be spent as a
consequence of the fund's depletion.   Whether the applicable
provisions   should be amended to provide       for increased
deposits so that an adequate   fund will be maintained is of
course a matter for the legislature.

     In our opinion, a county may not refuse to hold an
election pursuant  to sections 251.40 and 251.41 merely
because the 25 cent per voter deposit required     for the
petition for that election may prove insufficient to cover
the cost of the election.


                       SUMMARY

           All signatures or names in a series that
        appear to violate Alcoholic   Beverage Code
        section 251.10(b)(4)  are to be disregarded
        in verifying a petition for a local option
        liquor election.

           A county may not refuse to hold
        election pursuant to sections 251.40 a::
        251.41 of the Alcoholic Beverage Code because
        the 25 cent per voter deposit is insufficient
        to offset the county's expenses in conducting
        the election.




                                   Jz&?&G
                                     Attorney General of Texas




                                 p. 5966
Honorable Oscar William Loyd, II - Page 6   (JM-1133)




MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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