Ronoriblo~Yarrii~'Ir &rroll ooun* Attorney Chub80 i2ousty &Ilk,Toa8

D8u B$ro , -,; Opiaiorm. Q-6999 80:' (1)

### Vbthu it ir 8undrto~g that od88ion8r8' oowrt d.1 a local o&b tioi elaotion

on the 8818 OS 

### bser ripon p8titioa

bmrlng 647 8igaature8~ (2)Whether 8U.bh

p8tith Is valid lf 8lOt l'&If+O+O8d,hy

Oolrei88iOnel'8' **OOUti ’**  **i** cnm motloa; (S) Uh8th8r ooun* olerk 8W3t V8rifJr

8i@d&88 S8 thO88 Of qualified

VOW8.

Ik h&T8 l-8OtiV8d

$'OW OpbiOl8 **rOQl88il,** Ud YOU? 18ttOri8 **qUOt8d** i8 **qUOt8d** 88 fOllQW~8

"'TO THE CCUWzB8I(opIbBB* CGURT**OF -glbE**  **COUHTP, TBXA8,**  m,th8 t&Or8i@88d b8irF; qUdifi8dWt8r8 Of'ChUOkW COtuty,TW8, hOr8% **NqUWt** th8 blOfibl8 Oori88iOrWi' @OUkt'Of bh8X'Ohti

'9, Terxu,to order u 8lsotioa'to d8tii!I8 

### wbdher,

or nb* fho rile iri

kkr that do88 not ooatqirrlooholi8 8x8888 of four (@ per o88tumw wighhc shdl b8 18ga118.d

ti Ch8rOb8 COW, T-8.

m npra88at,

Mmt 80 looal optio8rlrotlo8 hu'bo8a h8ld in Choroku Ooun~, Tm8, dtll'ing

th8 &lUt 080 YOU b8fOr8th8 pZ'888l!tia **Of** thi8 PtftiOB.

Ilh8r8fo8'8,

W pnJrthd khi8 Cot& 8Pd88’ ruoh 818OtiOBiB SOOO?dtiO8 rtth the plWi8im8 Of OUT 1M8.'

"Thai8 f8 fOllU8d w 847 8i@88tUr@8. Thi8 &Wtit:OB -8 nO~886W8d irar the Corm* Clerk,ad of oour80 **dO88 ’**  **ndt, bU**  hi8 8iqatum ti 88ti **8or** did rqyono

make hpplioatioa

to him **for** 8 ptitior a8 uadumtud the la to ooatemplata* Nqbhingfurth8ri8 fliedwiiCh the CouatyCl823E

other thaa the above petiti.08 dththe ,8igratur88 whioh do not hW8 l rpr add-8888 ahum.

"18 it ImW%IO~ fhO+J th8 CollPi88iC08r8 ' COtId Of thi8 cOU& 8d **U** d-' eotioab8ed **Upon** th8 sborr, **d88oribOd** pti%iOa? %lZldU 818atiOa **au8d**Hon. Morriss W.Hassel.l., page 2 (O-6999)

upon the above described petition be valid if the Convmissiaers*, Co;ust did not also order the election upon their own motion? Is the County Clerk recuired to check the signatures on said petition to determine whether or not the signers of such petition are in fact qualified voters of the County when the petition does not show their addressests

Article 666, Sec. 52, Penal Code, provides:

“The Commissioners’ Court of each wunty in the state upon its own motion may order an elsoti.on wherein the qunl.ifiad voters of any county or any justice preoinot or incorporated town or oity may by .tha exercise of local option determine whether or not the sale of aloohollo beverage6 of one or more of the various tupes and alooholio oontant shall bo proh’i.bited or legalized wi4bin the prescribed limits of such county, Justi.ao precinct, or incorporated tom or oity; and looal option eleotion shall. be culled by the Commissioners Court upon proper petition as herein provided. Upon the applioation of oply one or more qualified voters of any county. justloe precinot, or inoorporatad town or oity, the oounty olsrk of surrh oounty shall issue to the npplioant or applicants a petition to be ciroulated among the qualified voters thereof forthe signatures of those qualified voters fin suoh area who desire ‘that a looal option elootion be a&led ,thorein, for the purpose of determining whe,ther the :.cle of alooholia beverages of one or more of the various typea and aloohollo content shall be prohibited OF lngnlieed within the presoribed limits of such oounty, justioe proc:inct, or inaorporntsd town or alty. The petition 80 issued shall clearly state the ‘osue or isslos to be votad upon in such oleo’clon~ eaoh suoh pe~tit:ion shall show the date of ifs issue by the oounty clerk and shall be serially numbered, and sash page of such petition shall bear the same date and serial number, and shall. bear the seal of the oounty olerk. The county clerk shall deliver as many copies of said petition as may be required bythe applicant and each oopy shall bear the date, number and seal on each page as required in t ho original. The County Clork shall keep a oopy of each such petition and

a reaord of the applicants therefor. When any such petition so issued shall within one hundred and twenty (120) days after the date of issue be filed with ,the clerk of the Cosunissionersl court ‘bearing the aotual signature of as many as ten (10%) per cent of the qualified voters in any such county, justioe precinct, inoorporated town or dty, together with a notation showing the rssidenoe address of each of the said signers, taking the votes for Governor at the last preceding general election at whiahtime Presidential eleotors were eleoted as the basis for determining the qualified voters in anu suo$ county or politioal subdivision, it is hereby required that the Comnissioners Court at its next regular session shall order a local option election to beheld upon the issue
or issues 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 precincts inxhioh they reside to determine whether or not the signers If such petition
are in fact ,qualified voters of the county or political suMivisi,on at the time sooh petition is presented, and to certify to the Connsissioners’ Court the number of qualified voters signing such petition. No signature shall be oounted where there is reason to believe that it is not the actual signature of tie purported.signer. The minutes of the Commissioners* Court shall recordthe date any such petition is presented, the names of the signers thereof, end theHon. MorrisU. Hao+$, pago 3 (O-6999)

actiontakenrvith

relation

to the same. No subsequent eleotion

upon the spme issue ia the same politioal subdivision

shall be held within one (1)year f'rcrm the date of the preoeding local optioneleotion in any oountyor politioalsubdivision.thereof." : (,,,

m a prooeedxng

to oonteot

p looal optioneleo*$.on in Mm ease of Hutson V. Smith,191 8.H. (2d) 779, the oontees%ee u?go&that the petition wan insufficient

to~oonferjurisdiotion uponthe Conunissio~~s( Court to oil1 a looal optioaeleotioll beoausoit was nut serially aumber@d.in

oomplf&moe

with Article 666, Sec. 32, Penal.Code. The CountyClerk issuedE~~feC@l oopissof the petition

and nmbered the oopies1 through17. The questioa as to mhethes the numbering

of the petition

in suchmanner~8 defsotive was notdetermined bgthe~appellat~

court, lout

the courthad this to,say,and we quoteportions of the opinionas follows:

" ~!

. . . Butwhetherright or wrong, if the petitioa was defeotiw in respeot,to. beingproperlyserially numbered,

we do n.ot

believethat the petition ma8 thereby rendered

a nullity. The first copy issuedbore,hhe number 1. If other oop ies were dsfeotivs

bsoausethey bore the nmibrs 2, 3, 4, 5, 6. 7, 8, 9. 10, 11, 12, 13, 14, 15, 16, aad 17, rpspaotively, suohdefeotwas apparent apo~ their faoe. The Comissioners'Court with full kaowledga of rrergthing

shoa by the face of the petitionordered the sleotioa.

. .'*

"Hersthe Comisrfoner~'Court, in.theeacoroire.of its du$r, fouad t;kt the,petitian oomplied

with the statutory requirsnen%a.The petitioner. who rigned

Bhr variousoopieaof tihe petition

were qualiPird~o&en. &nd entitled to have the eleotioo

oalled. If the petitio* mm dofeotive,~it

me defeotive

aetoform only,and suoh defeotma ahownupon its faoa. The Cmmir@.onere'Courthad juriqdiotic+!

to detenniw whether.,suo~ petition

me a properone to imposeupon it the duty of oalling the eleotion.

. . . Had the Coannl~~ionerr Courti found the petition

wa8 dsfeotive

in that it was not seri8lly numbered, and had the petitioners

applied

to the di8trlubcourt for a mandamusto oompel the issuaoe of an order for an eleotion, a different

question

would be pesee@m& In axy oam we hold that the defect in the petitica, if it -8 a defsot, did not render the petition

a nullity,,,and

that t@ oourt had jurisdiohioato monaider raid petition,

and it was i%s duty to do 80, and maid oourthad tb oapaoity

fo determineerroneously as ~1% a8 oorrsotly whetherthe petition wan defeutive

as to form. Since the Commissiomrs~Courthad jurisdiotioa to order the eleotion, and did order the electionafter a.ffinmtively findingthat the petifim omformedto the statutory requiremmtr aa to fonn,ws Aelieve that. if the petition

was defeotive

aa to form (thatia, **an** to beiog **oorreot?y** mauimmd serially),

that it RS suffioient to invoke said Commi8sio~0n Court*6jurisdictionia the pmmises.

. . . *.

. . Failureto numberthe peditionaerially, if it m6 not mumborod#aria+ ly, was a mere i~egu$+x+zywhich ooourred prior to the eleotion upd aouldham had no offooton its outcome.

. . . The courthad jurisdiotion independent

of the petiticm

to order thq eleotioa and with full knmledge of dsfeotrr apparent upon the faoe.thereof, therefore,

ita order **for** the eleotioaoonstituted a waiver of apparent defeatsin theptition.

. . .Hon. Morris**PT.** Bassell, page 4 (O-6999)

I

. . . We make this distinotion betweenthe requirements relative

to the mandatoryprovision

that the p?&itiom

shallbe serially

nIznbered

and the mandotory provision

that the order shall statethe issue or issuesto be voted oa in the eleotion. The petition is addfersed

to the Conmriseioners' Court,sad if with full knowledge it see8 fit to order an eleotioPr,whioh it had ths jurirdiotion

to orderat all avaats, no one else oan quertionthe rruffioiencry of the p&it1081

to tupportan order whloh the oourb oouldhave made in the abrenoeof a petitioa. fi otherwordr, o Conmctarioaerr* Coti oaatreat cusy pe%itioa

a8 ruffioieti

havingfull kaowlrdgr of all faotr."

ti theare of PowellV. Pond,160 S.Vf. (ad) 357, the oourtheld that wheathe ConrmirrlcPlerr* Court fouad the petition for an eleotion

to be suffl- &lentand signed

by ten (10) per osnt of the qualified voter8 bred ontie vote for Governor

at the la& preoediag generaleleotion,thepetitian oonfem juritdiotioa

upomtha oourtto order the eleotiom aad it ir maadatorg that the Collrmirsionerr*

Courk order *he eleotion upon the petition.

The ptitioa mentionedia Art1010 666, 800. 32, ir noti a prerequirite for an order by the mirnionerr ' Couh **for** an eleotior, beoause '*he

oourtmay orderaa elaotioa011 its 0111

motion- If the oourt **orduw** u aleotion upon a p&ition, it l

ppaan from the opinionin the oam of Eutron v. <h quo*& abovr,the appellateoourta would holdthati if thr petitioni8nrodbythe Couaty Clerkma drfeotive aa to form aad -.I not atriotly in oompli~os with the statute,

but utatedtihe

issue or imnwr %o be voted on, givingthe oourt full knowledge

of the desiresof the rlgaerrof the ped;ifion, and -6 signed'by the required

number of qualified votera,

the Comrmierioaers' Courtmay treat tha petition

a8 being sufficient and its order for an eleotionnouldoonstitute a waiver of trivial

defects in the pe%ihion.

In view of the oa8eB oited&bore, in anuwering your queafions,weare of the opinionthak it is not mandatory that the oourtorder an eleotlon bafed
on the petitioaset out in your l&tare Howver, if hhe oourt orderedan eleotion based OQ the petition, the eleotion

wouldbe valid. Weare also of the opinionthat the clerk ir required to oheokthe names of the signersof the petition

to determine

wither or not theyare qualified voters,eventhough their addresses

x-are not shownon the petition.
Trustingthatwee

have satisfaotorily answered

your questions,

?a are

LllAtzdtegu APPROVED: OpinionCommittee ByGWB-ChairmPn

APPROVED

MAY 22, 1946 /s/ carlos

Ashley FIRSTASSISTARI ATTORNEY

GENWIL Yoursveryhruly

ATTORNEY

GENERILOF TEXAS
By /a/ Louisn..

woosley

Louisw9 lrooslay Assistant