EA mu GENERAL 

OF TEXAS 

Hon. Coke R. Stevenson, Jr. Opinion No. c-426 

Administrator 

Texas Liquor Control Board 

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 

alcoholic beverages is 

legally bound to vote 

for prohibition if the 

election is called, 

and related question. 

on the following 

"1. Is the signer of a local option petition 

seeking to call an election to prohibit sale of 

alcoholic beverages legally bound 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 determine how signers 

at the election?" 

of the petition voted 

We agree with your conclusion that both of these 

questions should be answered in the negative. 

The purpose of requiring a petition of voters as a 

prerequisite for the calling of a local option election is to 

show that there is a sufficient number of qualified voters 

requesting the issue to be voted on as to indicate a 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 keeping with the purpose of the 

petition, Article 666-32 of Vernon's Penal Code provides that 

a petition for an election seeking to legalize the sale of 

alcoholic beverages must contain a statement that "it is the 

hope, purpose and intent of the petitioners whose signatures 

appear hereon to see legalized the sale of alcoholic beverages 

-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 alcoholic beverages 

must contain a statement that "it is the hope, purpose and 

intent of the petitioners whose signatures appear hereon to 

see prohibited the sale of alcoholic beverages referred to in 

the issue set out above." However, there is no provision in 

the statute which purports to compel a signer to vote for the 

issue or which purports to invalidate his ballot if he does not 

vote for it. To the contrary, the law as enunciated by our 

courts recognizes the right of a person to change his mind and 

to withdraw his signature after 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 ;(Tex.Civ.App.d 55 

%i'(Tex.Civ.A p. 

226 s.W.2d 116 P 

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 leading up 

to the calling and holding of the election because it is necessary 

to have 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 continues up to the moment that he deposits his ballot 

in the ballot box. 

Since there is no statute attempting to invalidate a 

ballot for being cast contrary to the voter's indicated view 

when he signed the petition for the election, it is unnecessary 

to consider whether such a statute would violate the privilege 

of free suffrage guaranteed by 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 Constitution provides for a secret ballot 

in elections, and the statutes prescribing election procedures 

strive to assure realization of this constitutional provision. 

See Arts. 8.11, 8.15, and 8.20, Texas Election Code. The only 

lawful manner for ascertaining how a person voted at an election 

is by matching his signed ballot stub with his ballot. After a 

ballot has been cast, the only circumstances under which a stub 

box may lawfully be opened and the stub matched with the ballot 

from which 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 investigation of alleged 

criminal violations. Art. 8.15, supra. Since a ballot cast 

contrary to the voter's indicated view when he signed the petition 

for the election is not illegal, no authority would exist even 

in these two circumstances for permitting an examination of the 

-2003- 
Hon. Coke R. Stevenson, Jr., page 3 (~426) 

ballots and stubs with a view to ascertaining how the signers 

of the petition had voted. 

SUMMARY 

The signers of a petition for a local option 

election to prohibit the sale of alcoholic beverages 

are not legally bound to vote for prohibition if 

the election is called. No one has a right to 

check the ballots 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-