        .      .




                   THEA~TORNEYGENERAL

                                OF      TEXAS



                                     June 26,     1962



Honorable James T. Flynt                          Opinion    No. ~~-1356
County Attorney
Wood County Courthouse                            Re:    Local option     election
Qultman, Texas                                           under Art. 666-32,        P.C.;
                                                         questions    pertaining     to
Dear Mr. Flgnt:                                          the petition.

            You have asked     the    following     questions     pertaining     to a
local       optlon.election:

                   “1 . If affidavits    In connection    with signing
            of petitions    In wet-dry   elections   are not submitted
            with the petition,      Is such requirement     mandatory or
            directory    upon the Commissioners’     Court?

                   “2.  Is Article    666, Sec. 32, which states
            that this article      in regards    to liquor    elections
            shall apply except where In conflict           with the
            Texas Election    Code, than In conflict        with the
            Texas Election    Code which does not require
            exemption certificates       or ;affldavits    to vote,
            and this affidavits      are not mandatory upon exempt
            petitioners    In a liquor    election.
                    ”?  Can the Commissioners    Court call   a liquor
            electl:n   at their discretion   upon petitioned   In
            proper form except for attached     affidavits   of exempt
            voters?

                    "4.   Does the Commissioners’      Court have
            authority     to determine      by any means at their     dls-
            posal to determine        what number of voters      will be
            required     to make up the 25 per cent as stated In
            Article     666, Section      32, where the election     Is called
            in an Incorporated         city and ths voting    precincts    of
            said city encompass an area including           said city and
            surrounding     territory?

                  "5.  Once a petition     for a wet-dry    election   has
            been flied  with the County Clerk,     can said petition
            be withdrawn from the county clerk’s       office     for the
            purpose of attaching    affidavits   of exempt voters
            and/or the submission    of additional    names on said
                                                                          .    .




Honorable   James T. Flynt,         Page 2,      ~~-1356


       petition    If   such    Is prior       to the    return   date   on
       the face    of   said    petition?

               “6 e Once the County Clerk has certified          the
       petition      and that same Is sufficient,      is such
       certification      binding    upon the Commlssi.onert$
       Court even though the requirements           of Art. 666,
       Sec. 32, reqlllrlng      affidavits   hasn’t   been met?

             “7.  Once the Commissioners  Court orders an
      election   as per Art. 666, Sec. 33, can said order
      be set aside?”

      Article     666-32,      Penal   Code,     reads     as follows:

              “The Commissioners      Court of each county In
      the State,    upon proper petition,          shall    order an
      electloon   wherein the qualified         voters    of such
      county,    or of any justice15        precinct     or incorpo-
      rated city     or ,town therein,      may by the exercise
      of local    option determine       whether or not the
      sale of alcoholic       beverages     of one (1) or more
      of the various      types and alcoholic        content     shall
      be prohibited      or legalized     within the prescribed
      limits    of such county,     justice’s      precinct     or
      Incorporated     city or town.

              “Upon the written         application      of any ten
       (10) or more, quailfied          voters    of any county,         ’
      justice’s     precinct,      or incorporated         city or town,
      the County Clerk of such county shall                    Issue to
      the applicants       a petition       to be circulated          among
      the qualified       voters     thereof    for the signatures
      of those qualified          voters    in such area who
      desire    that a local       option election        be called
      therein    for the purpose of determining                 whether
      the sale of alcoholic           beverages      of one (1) or
      more of the various          types and alcoholic            content
      shall be prohibited          or legalized       with the pre-
      scribed    limits    of such county,         justice’s       precinct,
      or incorporated        city    or town.      The   petition      so
      issued shall      clearly      state the issue to be voted
      upon in such election,            which shall be the same
      issue as that set out in the application;                      eaCh
      such petition       shall    show the date.:of         Its Issue
      by the County Clerk and shall                be serially
      numbered, and each page of such petition                     shall
      bear the same date and serial               number, and shall
       .       .




Honorable    James T. Flynt,        Page 3,     ~~-1.356


            bear the seal of the County Clerk.                     Ihe County
            Clerk shall       deliver     as many copies         of said
            petition     as may be required           by the applicants,
            and each copy shall bear the date, number and
            seal on each page as required                in the orlglhal.
            The County Clerk shall keep a copy of each such
            petition     and a record        of the applicants           therefor.
            When any such petition             so issued      shall within
            thirty    (30) days after          the date of Issue be filed
            with the Clerk of the Commissioners                    Court bearing
            the actual      signatures       of as many as twenty-five
            per cent (25%) of the qualified                  voters     of any
            such county> justice’s             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 ~011 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 exemotion         certificate,        taking the votes for
            Governor at the last preceding                 General Election
            at which presidential            electors      were elected         as
            the basis for determining               the qualified        voters     In
            any such county9 justice’s               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.                      It shall be the
            duty of the County Clerk to check the names’of                          the
            signers    of any such petition,             and the voting          pre-
            cincts    In which they reside,             to determine         whether
            or not the signers           of such petition          are In fact
            qualified     voters      in such county,         justice’s       pre-
            cinct,    or incorporated          city or town at the time
            such petition        is presented        and to certify          to the
            Commissioners        Court the number of qualified                  voters
            signing     such petition.           No signatures         shall be
            counted,     either     by the County Clerk or the
            Commissioners        Court, where.there           is reason to
            believe     It Is not the actual            signature       of’the
            purported      signer     or that It is a duplication                either
            of name or of handwriting               used in any other signa-
            ture   on the petition,          and no signature           shall be
            counted unless         the residence        address      of the signer
            is shown, or unless            It Is signed exactly            as the
            name of the voter appears on the official                        copy of
            the current       poll list      or an official          copy of the
            current     List of exempt voters,             if the signer be
            the holder       either     of a poll tax receipt             or an
            exemption certificate.
                                                                        .     .




Honorable     James T. Flynt,       Page 4,    ~~-1.356:


                "The minutes of the Commissioners          Court shall
        record    the date any such petition         is presented,     the
        names of the signers        thereof,    and the action     taken
        with relation       to the same.      In any election    ordered
        by the Commissioners        Court the issue ordered to
        appear on the ballot        shall    be the same as that
        applied    for and set out In the petition.           No subse-
        quent election       upon the same Issue shall be held
        within one (1) year from the date of the last
        preceding     local   option election      in any county,
        justice's     precinct,    or incorporated     city or town."
        pmphasis      addeg

         The affidavits      you refer     to In vour first        question      are the
affidavits      of persons      who have signed,the       petition      who are entitled
to vote without holding           either   a poll tax receipt         or an exemption
certificate.        Voters who are exempt from paying a poll                   tax by
reason of being over 60 years ~of' age, and who redida in a city
of 10,000 inhabitants          or more must have a current            exemption
certificate       In order to vote.        Art. 5.16,    Election       Code.      Voters
who are over 60 years of age, who do not reside                    In a city of
10,000 inhabitants         or more, are exempt from paying a poll tax
and do not need an exemption certificate                in order to vote.            Thus
we have three classes          of voters    who may sign a local           option
petition:       (a) holders      of current    poll tax receipts,          (b) holders
of current      exemption certificates,         and (c) those who are exempt
from paying the poll tax, and who are not required                      to hold a
current      exemption certificate.         Why does Art. 666-32,           P.C.,    require
the signers       of the petition      who fall    in categories        (a) and (b)
above to note the number that appears on their                   poll tax receipt
or exemption certificate?             It is obvious     that the purpose of this
requirement       is to assist     the County Clerk and the Commissioners
Court in determining         whether each signer        of the petition          is a
qualified      voter,   making it possible        to verify     that fact by check-
ing the records        in the Tax Assessor-Collector's             office.       What
assurance      does the Clerk or Commissioners            Court have that one who
signs a petition         who does not fall      In either     category       (a) or (b)
has passed his 60th birthday,            so as to qualify        under category
(c)?     Only the signatures         of qualified    voters     may be counted,         and
the affidavit        is the only method provided         by the statute          to prove
up the qualification          of those voters      who live outslde         a city of
10,000 inhabitants         or more ,and who are exempt from paying the poll
tax.     In answer to question         No. 1, we hold that It is mandatory
that the affidavits         be attached      to or handed in with the petition
for those voters         who are exempt from paying a poll tax and who
are not required         to hold an exemption certificate,              in order that
their    signatures      be counted.
Honorable      James T. Flynt,     Page 5,    ~~-1356


        Art.    666-36,   P.C.,   provides:

               "The officers      holding    such election       shall,    in
        all respects      not herein     specified,      conform to the
        General Election      Laws in force         regulating    elections
        and after     the polls    are closed       proceed    to count the
        votes and within twenty-four             (24) hours thereafter
        make due report      of said election          to the aforesaid
        Court.     The provisions      of the General Election           Laws
        shall    be followed    in calling      and conducting       said
        election    where not inconsistent           herewith."

         In your second question          you are concerned        about the fact that
voters    over 60 years of age who do not reside               in a city      of 10,000
inhabitants       or more:,. frequently      go to their    polling     places   on
election      day, do not have to show an exemption certificate,                   and
are given a ballot           to mark and cast;     whereas under Art, 666-32,
P.C.,    their    affidavits     are required     in order for their        signatures
to be counted.          In most election      precincts   in rural areas and in
smaller     towns the election        judge will know the voters           personally,
and will be well aware of the fact that a certain                    person offering
to vote in his precinct           Is over 60 years of age.           This accounts
for the election          judge not requiring      any affidavit      from the voter.
But If there were any doubt in the election                 judge's     mind about
the voter's       eligibility     to vote,    such election      judge could require
not only the oath of the voter,              but of some other well known
resident      of the precinct       as well.    Arts. 8.09 and 8.10,         Election
Code.

         Art. 666-32,      P.C.,    is concerned       with the petition     while
Art. 666-36,        P.C.,  applies     to calling      and conducting     the election.
There Is no conflict           with the Election         Code and Art. 666-32,      P.C.-
But if It could be said that the petition                    !,s a oart of the election
process,     and if It could be said that Art. 666,-32, P.C.,                 which
requires     affidavits      from exempt voters          who have no exemption
certificate       is in conflict       with the Election         Code, then Art.
666-36,     P.C.,    provides     that the provisions          of the Texas Liquor
Control     Act governing       local    option    elections     would be the appll-
cable law to follow.            In answer to Question           No. 2, we hold Art.
666-32,     P.C.,    is the statute       to follow      In determining    whether the
petition     for the local        option    election     Is In proper form.

        Smith v. Counts, 282 S.W.2d 422 (Civ.App.         1955) holds that
the Commissioners   Court mav not call     a local    ootion   election     uwon
Its own motion.    Since we have held In answer to your first                -
question   that the attachment    of the affidavits      of exempt voters
who are not required     to hold an exemption certificate         is mandatory,
the signatures   of such voters,    without the necessary       affidavits,
cannot be counted.     If this reduces    the number of valid        signatures
below the number required      by Art. 666-32,    P.C.,   then there is no
Honorable     James T. Flynt,        Page 6,     m-1356


authority    to call   the election,    since the petition    is insuffl-
cient   .   In answer to Question     No. 3, we hold that the       Commis-
sioners    Court may not call     the election,   unless the number of
valid   signatures    on the petition    meets the percentage    required
by Art. 666-32,      P.C.

         In determining      the number of signatures               required     on the
petition,     Art. 666-32,      P.C.,    requires       that the Commissioners
Court use the number of votes              cast..for      Governor at the last
preceding     General Election,         at which presidential             electors     were
elected.      For the county as a whole,              If the local        option    election
shall be county-wide,          this would present no problem.                   Generally
speaking,     there ought not to be much of a problem In the ordinary
case of a justice        precinct,      since election         precincts      generally
conform to the boundaries           of justice        precincts,       that Is, within
any one justice       precinct     there are usually           one, two, three or
more whole election         precincts.        In the case of a city or town,
a different      problem may be presented.                Attorney     General’s     Opinion
No. S-27 holds that In cities              with 10,000 Inhabitants              or more
every ward of such cities           shall     constitute       en electyon       precinct,
with the exception        af wards in which more than 2,000 votes were
cast In the last city election,               and that no adjacent            rural
territory     should be Included          in such precincts.            Therefore,      in
cities    having a population          of 10,000 Inhabitants            or more there
will be no problem.          Our problem comes in connection                  with cities
and towns with less than 10,000 Inhabitants,                      wherein an election
precinct    may Include      territory       lying within the town and adjacent
rural territory.         The Commissioners           Court is called         upon in such
a case to determine         how many people voted for Governor within                      such
a town or small city,          when there are no figures               available      which
Include    only the town or city.            Attorney      General’s      Opinion No.
o-7218 holds that whenever a petition                   is presented        to the County
Clerk,    he may adopt any means he deems necessary                     and proper to
determine     whether or not the required               number of voters         have
signed the same, and by way of suggestion                     offers     one possible
solution    to the problem.

         21 Texas Jurisprudence           2d,   Elections,      Sec.   53,   page 285,
reads    in part as follows:

                “If the law directs      an officer     or officers
         to order an election       when a certain      number of
         quailfied    voters   have joined   in a petition        for
         the same, it is made the duty of the officers                 to
         ascertain    whether or not the requisite           number of
         voters    have joined    in the petition     and whether
         they are qualified.        However, the officials          will
         be allowed    to exercise    their   own discretion        in
         this matter,     provided   that their     decision    is based
         upon reason and fairness,        and Is not Impelled          by
         fraud or caprice.”
Honorable      James T. Flynt,     Page 7,    W-1356


Akers v. Remington,          115 S.W.2d 714 (Civ,App.       1938;   error dism.)
was decided       at a time when the Commissioners         ,Cou~t:co~ld..bs’.the
express     language of Art. 666-32,         P.C.,  call  a~ local   option -
election      on Its own motion.        This language has been deleted           from
Art. 666-32,       P.C.     Also at that time there was no requirement
that the voters        list   their  poll tax receipt     number, exemption
certificate      number, or in lieu       thereof   sign an affidavit        that
they are exempt from paying the poll tax, when. no exemption
certificate       Is required.      Nevertheless,     If a petition     was pre-
sented,     it was the duty of the Commissioners            Court to determine
if the required        number of voters     had signed.      With respect      to
that one point,        we think the language       of the Court at page 720
is still      applicable     here:
             11                               could adopt any
              . . . !Phe con-missioners court
       means It thought right and proper to ascertain     . . .
       whether or not 10 per cent of the qualified    voters
       . . . had signed it.“.*...!’

We answer Question       No. 4 by holding   that the Commissioners    Court
may determine    by any reasonable      means what number of voters    will
be required   to constitute     25% of the voters    who voted for Governor
In a city in the last preceding         General Election,   at which
presidential    electors    were elected,   as required   by Art. 666-32,
P.C.

        We hold In answer to Question    No. 5, that the petitions
should be complete within 30 days after       their   Issuance    and cannot
thereafter    be withdrawnfor   the purpose of attaching       affidavits
of exempt voters     or the submission of:~additional~names.         Attorney
General’s   Opinion Wo. MS-261.

        Art.    666-32,   P.C.,   provides     in part:

                         No signature      shall be counted,      either
       a   the’&uAty        Clerk or the Commissioners         Court,
       where there is reason to believe              it is not the
       actual     signature     of the purported       signer   or that
       it is a duplication          either    of name or of hand-
       writing      used in any other signature           on the peti-
       tion,    and no signature        shall be counted unless
       the residence        address of the.signer         is shown, or
       unless     It is signed exactly         as the name of the
       voter appears on the official             copy of the current
       poll list      or an official       copy of the current       list
       of exempt voters,         if the signer      be the holder
       either     of a poll tax receipt         or an exemption
       certificate.
                1,
                 .   0 . .”   &?mphasis      addeg
Honorable   James T. Flynt,      Page 8,   ~~-1356


In answer to Question   No. 6, we hold there is an equal duty on
the County Cler,k and the&mmlssloners       Co’urt to ch&k the ‘peti-
tion,, and the Commlasioners  Court, is, ‘not, bound by the certifl-
cation  of the County Clerk.
        In Powell v.    Bond,   150 S.W.2d   337 (Clv.App.        1941)     it   was
held   at page 340:
              I,
                      Under the local     option    laws previously
        in forEe’a;d    effect,  it was uniformly       held that
        ‘It Is the pe,tltlon    that confers      upon the Commis-
        sioners’   Court the jurisdiction       to order the elec-
        tion, 1 Prather v. State,       12 Tex.App. 401, point
        page 404.    That rule   still   applies.     . . .’

        In State ex rel.   Burkett v. Town of Clyde,     18 S.W.2d 202
ICiv.Aoo.    1929, error ref.)   the question  was raised    whether the
county-judge    could order an incorporation    election   for a town of
less than 500 inhabitants,     when the law required     that there be
more than 500 inhabitants.       Tne Court stated at page 203:

                “The question   naturally   arises:     Can the
        county judge by ordering        an election   where there
        are fewer than the requisite        number of inhabitants,
        thus set at naught the law with the effect            that
        redress    will be denied to every one aggrieved          by
        such action?       The test of the validity      of such
        action,    we think,   is good faith     on the part of the
        officer    thus charged with the duty.         The action    of
        the officer     is at all times supported       by a presump-
        tion that he did what it was his duty to do.              If the
        judge orders      such an election,    knowing or having
        good reason to believe       that there does not exist
        the requisite      number of inhabitants,     his act in
        doing,,so   would> no doubt, be held to be fradulent.
        . * .
       In City of El Paso v. Tuck, 282 S.W.2d 764 (C.lv.App.      1955,
error ref.   n.r.e. J, th court    in discussing   the duty of the
County Judge when an izcorporktion     petition  is presented  to him,
stated at page 766:
               “There   seems to be a general        rule   of   law that

                “‘In passing   on petitions for elections      and in
        deciding     whether or not to call   an election,     the
        officer     with whom such petition   is filed    performs  a
        judicial     and not a ministerial  function.’      29 C.J.S.,
        Elections,      Sec. 6gr p- 92.”
     .       ‘




Honorable        James T. Flynt,   Page 9,   W-1356


       Perkins v. Ingalsbe,         County Judue,          Tex .           347
S.W.2d 926 (1961) concerned          the power of KCountymie                to
revoke an order of election          for the incorporation       of    a town.
The Supreme Court of Texas          stated at page 929:

                “The first     question    to be answered is:        Did
         the County Judge have the power to revoke his
         election     order and thus stop the election,           so
         as to prevent       those residents      of Impact from
         expressing      their   preferences     as to whether or
         not the area should be incorporated?               We hold that
         because     the petition     was in due and legal      form in
         compliance     with the statutory        requirements,    and
         because    the respondent       had a hearing     on the peti-
         tion and found the statutory            requirements    present,
         and ordered      the election     and posted notices      re-
         gulred   by law, It follows         that the election
         process    was lawfully      put in motion and the County
         Judge could not prevent Its being carried               to its-
         conclusion.       . . .‘I Emphasis       addeg

In answer to Question       No. 7, we hold that the action          of the
Commissioners     Court,   in passing    on the sufficiency      of the petition
and calling    the election,     Is a judicial      function.    Therefore,     such
Court may, during the same term of court             at which the order call-
ing the election      was issued,    set aside its previous       order.     After
the term of court during which the.,order            was signed has expired,
the Commissioners      Court may not set aside         its order of election.
Attorney    General’s    Opinion No.    O-2577   is   overruled  insofar    as it
holds that the calling        of a local   option     election  by the    Commis-
sioners   Court is an administrative         function.

                                   SUMMARY

                It Is mandatory that the affidavits     be attached
         or handed.in     with the petition   for those voters  who
         are exempt from paying a poll tax and who are not
         required    to hold an exemption certificate,     in order
         that their    signatures  be counted.    Art. 666-32,   P.C.

                Art. 666-32,     P.C.,   is the applicable    statute
         to follow    In determining       whether the petition     for
         the local    option    election    is In proper form.      There
         IS no conflict      between Art. 666-32,      P.C.,  and the
         Election    Code.    Art. 666-36,     P.C.

                  The Commisalonecs   Court may not call   a local
         option     election,  unless  the number of valid   slgna-
         tures     on the petition  meets    the   percentage    re-
         quired     by Art. 666-32,  P.C.
Honorable     James T.    Flynt,   Page 10,        ~~-13%


                The Commissioners     Court may determine    by any
          reasonable    means what number of voters    will be re-
          quired to constitute     25% of the voters   who voted
          for Governor    In a city in the last preceding
          General Election,    at which presidential     electors
          were elected,    as required   by Art. 666-32,    P.C.

                 The petitions    should be completed within,30
          days after    their  Issuance  and cannot thereafter
          be withdrawn for the purpose of attaching
          affidavits    of exempt voters   or the submission
          of additional     names.

                  There is an equal duty       on the County Clerk
          and the Commissioners    Court       to check the petition,
          and the Commissioners     Court      is not bound by the
          certification    of the County       Clerk.

                  The action   of the Commissioners        Court in
          passing    on the sufficiency      of the petition      and
          calling    the election    is a judicial      function.
          Such Court may, at the same term of court during
          which the order calling        the election      was issued,
          set aside its previous        order.    After    the term
          of court during which the order was signed has
          expired,    the Commissioners      Court may not set
          aside its order of election.

                                            Yours       very   truly,

                                            WILL WILSON
                                            Attornes General            of   Texas



                                              By     4%++=-
                                                     Riley Eugene Fletcher
                                                     pssistant

REF: ca

APPROVED:
OPINION COMMITTEE
W. V. Geppert,   Chairman
Elmer McVey
Ernest Fortenberry
Iola Wilcox
Frank Booth
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore
