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The Honorable   Tim Curry                         Opinion No.      H-   181
Criminal District Attorney
Tarrant County                                    Re:   The law controlling      local
Ft. Worth,  Texas   76102                               option petitions issued
                                                        before,    but filed after,
                                                        the effective date of new
                                                        legislation.

Dear Mr.    Curry:

        You have advised us that residents of five municipalities        in a justice
precinct which had recently voted “wet” obtained petitions from the county
clerk for the purpose of calling elections to prohibit the sale of alcoholic
beverages   in those towns.     All petitions were obtained prior to August
27, 1973, and the proponents apparently were advised they needed the
signatures   of only 25 per cent of the eligible voters.       The petitions were
“filed” with the county clerk after August 27, 1973, which was the effective
date of Amendments      to Article 666-32,    Vernon’s    Texas Penal Code, (Acts
1973, 63rd Leg.,    ch.   219, p.  508) which,   inter
                                                --     alia; changed the number
of signatures   required on a petition for a local option election from
25 per cent to 35 per cent of the eligible voters.        Your first question
is whether petitions issued before August 27, 1973, but returned after
that date require signatures      of 25 per cent or 35 per cent of the
qualified voters before a local option election is required.

      Article    666-32,   V. T. P. C.,    as amended   provides    in part:

             “The commissioners      court of each county in
      the state, upon proper petition,     shall order an election
      wherein the qualified voters of such county, or of any
      justice precinct,  or incorporated     city or town therein,
      may by the exercise    of local option determine whether or




                                      p.   826
The Honorable    Tim Curry,     page 2      (H-181)




      not the sale of alcoholic beverages     of one or more of the
      varioustypes    and alcoholic contents shall be prohibited or
      legalized within the prescribed    limits of such county,
      justice precinct,  or incorporated    city or town.




         , . . When any such petition so issued shall within
      &J,&ztvdavs after the date of issue be filed with the
      county clerk bearing the actual signatures         of as
      many as thirty-five     percent   of the qualified voters
      of any such county, justice 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 voter registration
      certificate,   all of which information     shall be in the
      actual handwriting of the signers of the petition,
      taking the vote for Governor at the last preceding
      general election as the basis for determining the
      number of qualified voters in any such county, justice
      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 added)

       We are sympathetic     to the situtation in which the proponents of the
election find themselves.      However,   we are not at liberty to consider the
equities.    Our only authority is to construe the law.      And here we find
ourselves    faced with clear language of the statute and the precedent of
Attorney General Opinion M-324        (1968).   There petitions were issued
before a general election,     but were returned and filed after the election.
In response to an inquiry concerning whether the last preceding general
election was determined by reference        to the date of issuance or to the
date of filing, this office held that the date of filing was the appropriate
date.   In that opinion we said:




                                     p.   827
The Honorable   Tim Curry,    page 3      (H-181)




            “In our opinion the instrument issued by the county
     clerk never becomes a petition signed by the voters until
     it is filed in the county clerk’s    office.     The date of filing
     is the date that the petition becomes an official petition.
     It is the petition that confers the jurisdiction       to call the
     election.   cf: Powell v. Bond, County Attorney,          150 S. W.
     2d 337 (Tex. Civ. App. 1941, error ref.); and see Bennett
     v. Moore,     157 S. W. 2d 515 (Ark. Sup. 1942), holding
     that it is the time of filing of a petition that will govern in
     determining the number of legal voters and the percentage
     thereof for determination     of the calling of an election.
     Since the only petition on file was filed subsequent to
     the General Election of November          5. 1968, the petition
     must meet the test of ‘twenty-five       percent of the qualified
     voters taking the vote for Governor at the last preceding
     general election at which presidential         electors were
     elected as the basis for determining         the number of
     qualified voters in any such county, justice precinct,
     or incorporated     city or town. ’ Under the facts submitted,
     the last presidential    general  election is November        5,
     1968. ”

        We believe the statutory language requiring that a petition “be
filed with the county clerk bearing the actual signature of as many as
thirty-five percent of the qualified voters” requires the conclusion that
the law in effect on the date of filing likewise controls the percentage
of voters which is required to sign the petition

       Your second question is whether the commissioners      court must
order an election at its next regular meeting after a petition is filed.
In this regard you advise us that the county clerk often is unable to
check and certify the petition before the regular meeting of the
commissioners    court.

      Another   portion   of amended    Article     666-32,   V. T. P. C.   provides:




                                   p.   828
The Honorable    Tim Curry,   page 4      (H-181)




             “It shall be the duty of the county clerk to check
      the names of the signers of any such petition,      and the
      voting precincts   in which they reside to determine whether
      or not the signers of such petition were in fact qualified
      voters in such county, justice precinct,     or incorporated
      city or town at the time such petition was issued,      and to
      certify to the commissioners      court the number of qualified
      voters signing such petition.     No signature shall be
      counted, either by the county clerk or the co mmissioners
      court, where there is reason to believe it is not the
      actual signature of the purported signer, or that the
      voter registration    certificate number is not correct
      or in the actual handwriting of the signer,    or that
      it is a duplication either of name or of handwriting
      used in any other signature on the petition,     and no
      signature shall be counted unless the correct residence
      address of the signer is shown in the actual handwriting
      of the signer and unless it is signed exactly as the name
      of the voter appears on the official copy of the current
      list of registered   voters for the voting year which
      the petition is issued.

            “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.”

        The commissioners    court is required to order an election only on
presentation   of a proper petition.    The statute provides guidelines for the
county clerk and the commissioners        court to use in ascertaining   the
authenticity of the signatures.     We believe the commissioners       court must
order an election at its first regular meeting after the petition is
certified by the county clerk.     Ellis v. Vanderslice,    486 S. W. 2d 155
(Tex. Civ. App. Dallas,     1972, no writ).




                                   p.   829
,




    The Honorable   Tim Curry,   page 5       (H-181)




                                 SUMMARY

                The law which is effective on the date a local option
         petition is filed determines   the number of signatures
         required.   If the petition is in the correct form and
         contains the required number of signatures,       the commis-
         sioners court must order an election at its first regular
         meeting after the county clerk certifies     the number of
         qualified voters signing the petition.


                                                        Yours   very truly,




                                                        Attorney   General    of Texas




    DAVID M. KENDALL,       Chairman
    Opinion Committee




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