                                ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                  August 282003



The Honorable Robert B. Scheske                             Opinion No. GA-0093
Gonzales County Attorney
P.O. Box 3                                                  Re: Whether a local option stock law election,
Gonzales, Texas 78629-0003                                  in which a single ballot proposition combined
                                                            proposals from a petition to restrain cattle with a
                                                            petition to restrain horses and other animals, was
                                                            valid (RQ-0027-GA)


Dear Mr. Scheske:

         You ask about the validity of a local option stock law election, in which a single ballot
proposition combined a proposal to restrain cattle with a proposal to restrain horses and other
 animals.’ S~~TEX.AGRIC.CODEANN.        8 143.071 (Vernon 1982)(p roviding for local option election
concerning cattle); id. 9 143.02 1 (providing for local option election concerning “horses, mules,
jacks, jennets, donkeys, hogs, sheep, or goats”).

        Gonzales County conducted an election to determine whether to adopt stock laws prohibiting
animals from running at large in the county. As a general rule, Texas common law does not impose
a duty on owners of domestic animals to prevent their animals from running at large. See Gibbs v.
Jackson, 990 S.W.2d 745,747 (Tex. 1999) (holding that Texas follows the “free-range” rule). The
Texas Constitution authorizes the legislature to pass laws for the regulation of livestock.* Chapter
143 of the Texas Agriculture Code allows a county or portion of a county to decide by local option


          ‘Letter fromRobert B. Scheske, Gonzales County Attorney, to Office of Attorney General (Mar. 11,2003)   (on
file with Opinion Committee) [hereinafter “Request Letter”].

        2Article XVI, section 23 provides:

                 REGULATION         OF LIVE STOCK; PROTECTION                  OF STOCK RAISERS;
                 INSPECTIONS;       BRANDS. The Legislature may pass laws for the regulation of
                 live stock and the protection of stock raisers in the stock raising portion of the State,
                 and exempt from the operation of such laws other portions, sections, or counties;
                 and shall have power to pass general and special laws for the inspection of cattle,
                 stock and hides and for the regulation of brands; provided, that any local law thus
                 passed shall be submitted to the qualified voters of the section to be affected
                 thereby, and approved by them before it shall go into effect.

        TEX. CONST. art. XVI, 5 23.
The Honorable Robert B. Scheske             - Page 2          (GA-0093)




election whether to prohibit certain classes of livestock from running at large in the locality.
Separate subchapters provide for elections concerning cattle or domestic turkeys (subchapter D),
hogs (subchapter C), and horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats (subchapter
B). TEX. AGRIC.CODE ANN. $8 143.021-143.082 (Vernon 1982 & Supp.2003).

         Gonzales County residents presented two petitions to the commissioners court for local
option stock law elections to determine if certain classes of animals may run at large in the county.
One petition concerned cattle, and the other concerned “horses, mules, jacks, jennets, donkeys, hogs,
sheep, or goats.” Request Letter, supra note 1 (Exhibits “A” & “B”). The commissioners              court
ordered an election be held “with the ballots printed to provide for voting for or against the following
proposition: Adoption of the stock law prohibiting cattle, horses, mules, jacks, jennets, donkeys,
hogs, sheep, or goats from running at large.” Id. (Exhibit “C’‘-“Order of Election”). The election
ballots conformed to the commissioners’ order, giving voters the option of voting “For” or “Against”
the single proposition. Id. (Exhibit “D”). The election was held, and the proposition passed.

         You inquire whether combining proposals from the two petitions in a single ballot
proposition rendered the election to adopt stock laws invalid. As you note, whether a county has a
valid stock law may be significant in civil negligence cases involving livestock. See Gibbs, 990
S.W.2d at 747 (holding that an owner owed no duty to restrain a horse from roaming on a farm-to-
market road in a county without a stock law). And you are concerned that, without a valid election,
Gonzales County cannot enforce the stock laws by criminal prosecution.       Request Letter, supra
note 1, at 3.

         Chapter 143 provides similar election procedures in subchapter B (concerning horses and
other animals), and in subchapter D (concerning cattle and domestic turkeys). Freeholders of a
county or an area within a county first petition the commissioners court to conduct an election to
decide if certain animals will be permitted to run at large in the county or the petitioning area. See
TEX.AGRIC.CODE ANN.$0 143.021(a), 143.071(a) (Vernon 1982). The petition must be signed by
a certain number of freeholders, see id. $8 143.021(b), 143.07 l(c), and must “clearly state each
class of animal that the petitioners seek to prohibit from running at large.” Id. $5 143.021(d)(l),
143.07 1(d)( 1). After receiving such a petition, the commissioners court orders that an election be
held. See id. 3s 143.022, 143.073(a).

         Subchapters B and D contain significant differences, however. For example, a petition
concerning cattle and domestic turkeys, governed by subchapter D, must be signed by at least thirty-
five freeholders, id. $ 143.07 1(c), while a petition for horses and other animals under subchapter B
must be signed by at least fifty freeholders.        Id. 8 143.02 l(b). Also, the penal provisions of
subchapter B proscribe different conduct than does subchapter D.3


        3Subchapter B proscribes    several offenses:

        (a)   A person commits an offense if the person knowingly:

                   (1) turns out or causes to be turned out on land that does not belong to or is not
                                                                                                        (continued...)
The Honorable Robert B. Scheske               - Page 3           (GA-0093)




         Most pertinent here, the subchapters require different wording on the election ballots to be
used in a local option stock election. For cattle, subchapter D directs that the ballot state “Adoption
of the stock law.” Id. 5 143.073(b). For horses or other animals, subchapter B requires the ballot
to state, “Letting             run at large,” listing in the blank space each class of animal designated
in the election order. Id. 4 143.023(d). For ballots prepared to comply with subsection D, a “for”
vote would signal support for adopting the stock law restraining cattle. But in a ballot prepared
according to subchapter B, a “for” vote would indicate opposition to a law requiring restraint of
horses or other animals. The stock law is adopted under subchapter D if the majority votes for the
proposition. Id. 8 143.074(a). The stock law is adopted under subchapter B if the majority votes
against the proposition.   Id. 5 143.024(a).

         Propositions under subchapters B and D may be considered in the same election provided
the election is conducted in substantial compliance with the pertinent statutes. In Lock v. Morris,
287 S.W.2d 500 (Tex. Civ. App.-Texarkana          1956, writ ref d n.r.e.), a single petition combined
different classes of animals, but the commissioners          court ordered an election with separate
propositions on separate ballots. The court held that the resulting election substantially complied
with the statutes. Lock, 287 S.W.2d. at 503. Similarly, the court upheld a stock law election
concerning both cattle and other animals in Scurlock v. Wingate, 283 S.W. 307 (Tex. Civ.
App.-Beaumont       1926, no writ). In Scurlock, only one forrn of printed ballot was used in the
election, which read “for the stock law” and “against the stock law,” but there were separate ballot
boxes, one for cattle, and a separate ballot box for other animals. Scurlock, 283 SW. at 308. Stating
that the “object of every election is to ascertain the will of the people on the matter involved,” the
court held that the separate ballot boxes accomplished that goal, and therefore complied with the law.
Id. at 309- 10. An attorney general opinion determined that a commissioners court may order a single
stock election to decide whether to adopt the stock law for different types of livestock, as requested




                    under the control of the person an animal that is prohibited   from running   at large
                    under this subchapter;

                    (2) fails or refuses to keep up an animal that is prohibited   from running   at large
                    under this subchapter;

                    (3)allows an animal to trespass on the land of another in an area or county in which
                    the animal is prohibited from running at large under this subchapter; or

                    (4) as owner, agent, or person in control of the animal, permits an animal to run at
                    large in an area or county in which the animal is prohibited from running at large
                    under this subchapter.

TEX. AGRIC. CODE AN-N. $ 143.034(a)      (Vernon Supp. 2003).    Subchapter D proscribes    a single offense:

          (a) A person commits an offense if the person knowingly permits a head of cattle or a domestic turkey
          to run at large in a county or area that has adopted this subchapter.

Id. $ 143.082(a).
The Honorable    Robert B. Scheske    - Page 4        (GA-0093)




by two separate petitions. See Tex. Att’y Gen. Op. No. O-6704 (1945). The opinion concluded that
a single election was permissible provided the election officials took precautions to make “clear and
certain the result as to the two distinct elections being held by the same election officials at the same
time.” Id. at 3-4. However, while Lock, Scurlock, and the attorney general opinion permit a single
election for propositions based on different subchapters, none authorize combining the propositions
so that the voter may only approve both or neither.

         An election order that combines proposals from separate petitions into a single ballot
proposition may be objectionable for several reasons. First, a court could conclude that the
commissioners court’s election order was invalid because it did not conform to the petitions. A
commissioners court does not possess independent authority to order a local option stock election,
but may only order an election pursuant to a petition as prescribed by statute. See Exparte Simmons,
277 S.W. 693,693 (Tex. Crim. App. 1925). Consequently, a commissioners court may not order
an election at variance with the petition. See id. ; West End Rural High Sch. Dist. of Austin County
v. Columbus Consol. Indep. Sch. Dist. of Colorado County, 221 S.W.2d 777, 779 (Tex. 1949)
(countyjudge’s order for election to consolidate school districts that did not conform to petitions was
void). As one court has stated:

                The petition for an election is fundamental and jurisdictional. It is the
                basis of the court’s action in ordering the election. The court is not
                at liberty to disregard the request to order the election prayed for, if
                the requisites of the statute have been complied with; nor is it at
                liberty to alter the request for an election by ordering an election
                different from the one called for by the petition.

Coleman v. Hallum, 232 S. W. 296,297 (Tex. Comm’n App. 192 1, judgm’t adopted). By combining
proposals from the petitions into a single proposition, the commissioners court ordered an election
that did not conform to either petition.

        Second, a court would likely conclude that the two proposals cannot be combined into a
single proposition because they concern separate and distinct matters under subchapters B and D.
A ballot that combines two or more separate and distinct propositions is invalid. See Royalty v.
Nicholson, 411 S.W.2d 565,570 (Tex. Civ. App.-Houston 1967, writ ref d n.r.e.); Garcia v. Duval
Co., 354 S.W.2d 237,238-39 (Tex. Civ. App.-San Antonio 1962, writ ref d n.r.e.); Adams v. Mullen,
244 S.W. 1083 (Tex. Civ. App.-San Antonio 1922, writ ref d).

         Finally, a court could conclude that the combined proposition is invalid because it is
inconsistent with the statute. When an election statute prescribes the exact form of the proposition
to appear on the ballot, courts generally require that the ballot language strictly conform to the
statute. See Davenport v. Comm i-s Ct. of Denton County, 557 S.W.2d 530, 531-32 (Tex. Civ.
App.-Texarkana     1977, no writ) (local option liquor law); Wright v. Bd. of Trs. of Tatum Indep. Sch.
Dist., 520 S.W.2d 787, 792 (Tex. Civ. App.-Tyler 1975, writ dism’d) (school bond election);
McGraw v. iVewby, 496 S.W.2d 250,252 (Tex. Civ. App.-Beaumont              1973, no writ) (local option
The Honorable   Robert B. Scheske     - Page 5        (GA-0093)




liquor law); see also Tex. Att’y Gen. LO-96- 110 (1996) at 2 (ballot language requirement precludes
combining different sales and use tax proposals in single proposition); Tex. Att’y Gen. Op. No.
DM-218 (1993) at 3 (same). A single ballot proposition cannot be formulated to comply with both
the language required by section 143.023(d) (“Letting               run at large”) and the language
required by section 143.073(b) (“Adoption of the stock law”).

         As an additional matter, we note that in two early cases, the court of criminal appeals held
that an election was void when, as here, the ballot submitted different classes of animals in the
disjunctive.   In McElroy v. State, 47 S.W. 359 (Tex. Crim. App. 1898), the court granted habeas
corpus relief because the conviction was based on an invalid stock law. The court concluded the
stock law was invalid because the ballot proposition used the word “or” instead of “and” to
determine whether to adopt the stock law for “hogs, sheep, and goats.” McElroy, 47 S.W. at 359.
The court held that the election was void because it was “impossible to determine whether [the
voters] intended to prohibit the running at large of one or all kinds of said stock.” Id.; accord Reuter
v. State, 67 S.W. 505,506 (Tex. Crim. App. 1902) (reversing criminal judgment); see also Coleman
v. HaIlurn, 232 S.W. 296,297 (Tex. Comm’n App. 1921, judgm’t adopted) (recognizing the rule in
McElroy but distinguishing the case based on the court’s construction of the commissioners court’s
order).

         In sum, the ballot Gonzales County used in its local option stock election was invalid because
the single proposition did not conform to the petitions, combined separate and distinct propositions,
and failed to follow mandatory ballot language. As a result, the election to adopt a local option stock
law was not valid.
The Honorable Robert B. Scheske     - Page 6         (GA-0093)




                                       SUMMARY

                        A local option stock law election, in which a single ballot
               proposition combines proposals from a petition to restrain cattle and
               from a petition to restrain horses and other animals, is invalid.

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
