### EA mu GENERAL OF TEXAS

Hon. Coke R. Stevenson, Jr. OpinionNo. c-426 Administrator Texas Liquor ControlBoard Austin, Texas Re:

Dear Sir:
You have requested an opinion questions: Whether the signer of a petition for a local option election to prohibit the sale of alcoholicbeverages is legallybound to vote for prohibition if the election is called, and related question.

on the following

"1. Is the signer of a local optionpetition seeking to call an election to prohibit sale of alcoholicbeverages legallybound to vote for prohibition if said election is called?
"2. Does any person whatsoever have the right to check the ballots cast in such election to determinehow signers at the election?" of thepetition voted

We agree with your conclusion that both of these questions shouldbe answered in thenegative.

The purpose of requiringa petition of voters as a prerequisite for the calling of a local option election is to show that there is a sufficientnumber of qualified voters requesting the issue to be voted on as to indicatea likelihood of its carrying at the election, thereby justifying the holding of the election in order to determine the will of a majority ES the voters. Undoubtedly, the contemplation of the law is that each signer should have a present good faith intention,at the time of signing a petition, to vote for the issue to be submitted if en election is held. In keepingwith thepurpose of the petition, Article 666-32 of Vernon's Penal Codeprovides that a petition for an election seeking to legalize the sale of alcoholic beveragesmust containa statement that "it is the hope, purpose and intent of thepetitionerswhose signatures appear hereon to see legalized the sale of alcoholicbeverages
-2002-Hon. Coke R. Stevenson, Jr., page 2 (C-426)

referred to in the issue set out above," and a petition for an election seeking to prohibit the sale of alcoholicbeverages must contain a statement that "it is thehope, purpose and intent of the petitionerswhose signaturesappear hereon to seeprohibited the sale of alcoholicbeverages referred to in the issue set out above." However, there isno provision in the statutewhich purports to compel a signer to vote for the issue or which purports to invalidatehis ballot if he does not vote for it. To the contrary, the law as enunciatedby our courts recognizes the right of a person to change his mind and towithdraw his signatureafter he has signed a petition for an election. Stahl v; Miller, 63 S.W.2d 578-(Tex.Civ.App. 1983, error ref.); Texas Power & Light Co. v. Brownwood Public Serv. 87 S.W.2d 55

;(Tex.Civ.App.d %i'(Tex.Civ.A p. 226 s.W.2d 116P 1949, reversed m other grounds, 148 Tex. 443,

. The right to withdraw one's signature from the petition ceases at a certain stage of the proceedings leadingup to the calling and holding of the electionbecause it is necessary tohave a definite deadline for fixing the status of the petition incident to determining its sufficiency;but the right of a signer to change his mind and to vote as he chooses at the election continuesup to the moment that he deposits his ballot in the ballot box.

Since there isno statute attempting to invalidatea ballot forbeing cast contrary to the voter's indicatedview when he signed thepetition for the election, it is unnecessary to considerwhether such a statutewould violate theprivilege of free suffrageguaranteedby our Constitution. Westerman V. -9 111 Tex. 29, 227 S.W. 178 (1921).

Your second question is whether anyone has the right to check the ballots cast in a local option election to determine how signers of the petition voted at the election. Article VI, Section 4 of the Texas Constitutionprovides for a secretballot in elections,and the statutesprescribing electionprocedures strive to assure realization of this constitutionalprovision. See Arts. 8.11, 8.15, and 8.20, Texas Election Code. The only lawfulmanner for ascertaininghow a person voted at an election isby matching his signedballot stub with his ballot. After a ballot has been cast, the only circumstancesunder which a stub box may lawfullybe opened and the stubmatched with the ballot fromwhich it has been detached is on order of the district judge in an election contest,where it has been determined that the ballot was illegally cast, or in the investigationof alleged criminal violations. Art. 8.15, supra. Since a ballot cast contrary to the voter's indicatedviewwhen he signed thepetition for the election is not illegal,no authority would exist even in these two circumstances forpermitting an examination of the -2003-Hon. Coke R. Stevenson, Jr., page 3 (~426)

ballots and stubswith a view to ascertaininghow the signers of thepetition had voted.
SUMMARY The signers of a petition for a local option election to prohibit the sale of alcoholicbeverages are not legallybound to vote forprohibition if the election is called. No one has a right to check theballots cast in the election to determine how signers of the petition voted.
Yours very truly,
WAGGONER CARR Attorney General

MKW:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman John Banks George Black Terry Goodman H. Grady Chandler
APPROVED FOR THE ATTORNEY GEI'IEXAL BYt Stanton Stone

-2004-