Honorable Guy E. Jones            Opinion No. C-266
County Attorney,
Bowle County Courthouse           Re: Construction    of Art. 666-32,
Texarkana, Texas                  V.P.C. In reference   to a petition
                                  for a local option election    In
Dear Mr. Jones:                   the town of Leary
In your letter  of April 17, 1964, you asked fdr a construction
of Article  666-32, Vernon's Penal Code, in anticipation  of a
local option election   in the town of Leary.
The pertinent     part of the statute       la:
                   n. . . When any such petition        ,so issued,
            shall within thirty (30) days after the date
            of Issue be filed with the Clerk of the Com-
            missioners     Court bearing the actual signatures
            of as many as twenty-five         per cent (25%) of
            the qualified      voters of any such county,
            justIceIs     precinct,    or Incorporated    city or
            town, together 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~ls           entitled
            to vote without holding either a poll tax re-
            ceipt or an exemption certificate,          takin     the
            votes for Governor at the Last preceX+iZiFral    ng
            mection     at which presidential      electors     were
            elected as the basis for determining the qua-
            lified    voters in any such county, justice18
            precinct,     or incorporated     city or town, it is
            hereby required that the Commissioners Court
            at Its next regular session shall order a
            local option election        to be held upon the
            issue set out In such petition          . . ." (Emphasis
            Supplied)
The facts   as you state    In   your letter      are:
                 "In the General Election In 1960, which
            would be the last preceding General Election
            at which presidential  electors were elected,
            the Leary box was not limited to voters of the
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Honorable   Guy E. Jones,    Page 2 (Opinion    No. c-266 )

            Town of Leary, but the total vote cast contained
            many voters outside the Town of Leary who lived
            within the particular     voting precinct.       In that
            election,   two hundred sixty-one      votes were cast,
            and It Is the position     of the Commlssloners      that
            It Is impossible   to determine how many signatures
            would be required on the petition        In order to
            constitute   as many as twenty-five      per cent, since
            It is not known how many votes were actually          cast
            by residents   of the Town of Leary in the 1960
            election.    The Petitioners      can prove, by use of
            the 1959 poll list and by testimony of persons
            who resided In the corporate limits of Leary at
            the time of the 1960 General Election,          the number
            of persons actually     qualified    to vote for the of-
            fice of Governor In that election.           They are not
            In a position,   however, to prove the actual num-
            ber OS votes cast by Leary residents.”
An identical     problem existed In Montgomery County In 1946.
This office     held in Attorney General’s Opinion, No. 0-7218,
1946, enclosed,     that the County Clerk, whenever          a petition
called for under Article          666-32 la 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 political         subdivision   and to ascertain     the num-
i;rA;;ruallfled       voters signing the same. The earlier            case
              et al v. Remington et al, 115 S.W.2d 714 (Tex.Clv.
o-~8~g3i~g~r;~~
AP                    ;;s;E;irzd’Attorney        General’s Opinion No.
                                      We affirm Attorney General’s
Opinion No. o-7218 Insofar as.lt           applies to your problem.
It Is further stated in your request that Petitioners    maintain
that substantial   compliance with the statute.would  be met If
they could show that the number of signatures on the petition
was equal to 25 per cent or more of the number of persons qua-
lified  to vote in the corporate   limits at the time of the 1960
General Electloti.   It is suggested that even a greater burden
than is required by the statute would have been met. With this
we concur.   This reasoning,  If adopted by the Commissioners
Court, represents   a fair and reasonable approach and within the
language of the attached opinion.

                          SUMMARY

            Where it    is impossible   to determine the
            requisite     number of signatures   on a local


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Honorable   Guy E. Jones,   Page 3 (Opinion   No. c-266 )

            option petition,    the Bowie County officials
            may exercise   their own discretion,  based
            upon reason and fairness.
                               Respectfully   submitted,
                               WAGGONER CARR
                               Attorney General of Tens




BSC/lh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gilbert Pena
Llnward Shivers
p;y    gZ;dler
  . .
APPROVEDFORTHEATTORNEYGRNRRAL
BY: Stanton Stone




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