Ronoriblo~Yarrii~'Ir &rroll 

ooun* Attorney 

Chub80 i2ousty 

&Ilk, Toa8 

D8u B$ro 

, -,; 

Opiaior m. 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? 18ttOr i8 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 ooatqir rloohol i8 8x8888 of four (@ per o88tum w wighhc 

shdl b8 18ga118.d ti Ch8rOb8 COW, T-8. 

m npra88at, Mmt 80 looal optio8 rlrotlo8 hu'bo8a h8ld in Choroku Ooun~, 

Tm8, dtll'ing th8 &lUt 080 YOU b8fOr8 th8 pZ'888l!tia Of thi8 PtftiOB. 

Ilh8r8fo8'8, W pnJrthd khi8 Cot& 8Pd88’ ruoh 818OtiOB iB 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* Nqbhing furth8r i8 flied wiiCh the Couaty Cl823E 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-' 

eotioa b8ed Upon th8 sborr, d88oribOd pti%iOa? %lZld U 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 wi4 bin 

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 the 
Hon. Morris U. Hao+$, pago 3 (O-6999) 

action taken rvith 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 option eleotion in any oounty or politioal subdivision.thereof." : (,,, 

m a prooeedxng to oonteot p looal option eleo*$.on in Mm ease of 

Hutson V. Smith, 191 8.H. (2d) 779, the oontees%ee u?go&that the petition wan 

insufficient to~oonfer jurisdiotion uponthe Conunissio~~s( Court to oil1 a 

looal optioa eleotioll beoauso it was nut serially aumber@d.in oomplf&moe with 

Article 666, Sec. 32, Penal.Code. The County Clerk issued E~~feC@l oopiss of 

the petition and nmbered the oopies 1 through 17. The questioa as to mhethes 

the numbering of the petition in such manner ~8 defsotive was not determined 

bgthe~appellat~ court, lout the court had this to, say, and we quote portions of 

the opinion as follows: 

" . . . ~! But whether right or wrong, if the petitioa was defeotiw in respeot,to. 

being properly serially numbered, we do n.ot believe that the petition ma8 thereby rendered a nullity. The first copy issued bore,hhe number 1. If other oop 

ies were dsfeotivs bsoause they bore the nmibrs 2, 3, 4, 5, 6. 7, 8, 9. 10, 11, 

12, 13, 14, 15, 16, aad 17, rpspaotively, suohdefeot was apparent apo~ their 

faoe. The Comissioners' Court with full kaowledga of rrergthing shoa by the 

face of the petition ordered the sleotioa. . .'* 

"Hers the Comisrfoner~' Court, in.the eacoroire.of its du$r, fouad t;kt the,petitian oomplied with the statutory requirsnen%a. The petitioner. who rigned Bhr 

various oopiea of 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 defeot ma ahown upon its faoa. The Cmmir@.onere' Court had 

juriqdiotic+! to detenniw whether.,suo~ petition me a proper one to impose upon 

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 di8trlub court for a mandamus to 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 determine erroneously as ~1% a8 oorrsotly whether the petition wan defeutive as 

to form. Since the Commissiomrs~ Court had jurisdiotioa to order the eleotion, 

and did order the election after a.ffinmtively finding that the petifim omformed to the statutory requiremmtr aa to fonn,ws Aelieve that. if the 

petition was defeotive aa to form (that ia, an to beiog oorreot?y mauimmd 

serially), that it RS suffioient to invoke said Commi8sio~0n Court*6 jurisdiction ia the pmmises. . . . 

*. . . Failure to number the pedition aerially, if it m6 not mumborod #aria+ 

ly, was a mere i~egu$+x+zy which ooourred prior to the eleotion upd aould ham 

had no offoot on its outcome. . . . The court had 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 eleotioa oonstituted a 

waiver of apparent defeats in theptition. . . . 
Hon. Morris PT. Bassell, page 4 (O-6999) 

I . . . We make this distinotion between the requirements relative to the mandatory provision that the p?&itiom shall be serially nIznbered and the mandotory provision that the order shall state the issue or issues to 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 order at all avaats, no one else oan quertion the rruffioiencry 

of the p&it1081 to tupport an order whloh the oourb oould have made in the 

abrenoe of a petitioa. fi other wordr, o Conmctarioaerr* Coti oaatreat cusy 

pe%itioa a8 ruffioieti having full kaowlrdgr of all faotr." 

ti theare of Powell V. Pond, 160 S.Vf. (ad) 357, the oourt held that 

wheathe ConrmirrlcPlerr* Court fouad the petition for an eleotion to be suffl- 

&lent and signed by ten (10) per osnt of the qualified voter8 bred ontie 

vote for Governor at the la& preoediag general eleotion,the petitian oonfem 

juritdiotioa upomtha oourt to order the eleotiom aad it ir maadatorg that the 

Collrmirsionerr* Courk order *he eleotion upon the petition. 

The ptitioa mentioned ia Art1010 666, 800. 32, ir noti a prerequirite 

for an order by the mirnionerr ' Couh for an eleotior, beoause '*he oourt may 

order aa elaotioa 011 its 0111 motion- If the oourt orduw u aleotion upon a 

p&ition, it l ppaan from the opinion in the oam of Eutron v. <h quo*& 

abovr, the appellateoourta would holdthati if thr petition i8nrod bythe Couaty 

Clerk ma drfeotive aa to form aad -.I not atriotly in oompli~os with the 

statute, but utated tihe issue or imnwr %o be voted on, giving the oourt full 

knowledge of the desires of the rlgaerr of the ped;ifion, and -6 signed 'by 

the required number of qualified votera, the Comrmierioaers' Court may treat tha 

petition a8 being sufficient and its order for an eleotionnould oonstitute a 

waiver of trivial defects in the pe%ihion. 

In view of the oa8eB oited &bore, in anuwering your queafions,we are 

of the opinionthak it is not mandatory that the oourt order an eleotlon bafed 

on the petitioa set out in your l&tare Howver, if hhe oourt ordered an eleotion based OQ the petition, the eleotion wouldbe valid. Weare also of the 

opinion that the clerk ir required to oheokthe names of the signers of the 

petition to determine wither or not they are qualified voters, eventhough their 

addresses x-are not shown on the petition. 

Trusting that wee have satisfaotorily answered your questions, ?a are 

LllAtzdtegu 

APPROVED: 

Opinion Committee 

ByGWB-ChairmPn 

APPROVED MAY 22, 1946 

/s/ carlos Ashley 

FIRST ASSISTARI 

ATTORNEY GENWIL 

Yoursveryhruly 

ATTORNEY GENERIL OF TEXAS 

By /a/ Louis n.. woosley 

Louis w9 lrooslay 

Assistant