JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12548 Austin. TX. 78711.2548 51214752501 Telex 9101874-1367 Telecopier 5121475-0266

714 Jackson, Suite 7W Dallas, TX. 75202-4506 214i742-8944

4824 Alberta Ave., Suite 160 El Paso. TX. 798052793 9156333484

-91 Texas, Suite 700 ,u~,on, TX. 77002-3111 713/222-5888

806 Broadway, Suites312 Lubbock, TX. 79401-3479 808/747-5238

4349 N. Tenth. Suite B McAllen. TX. 78501-1885 51215824547

200 Main Plaza. Suite 400 San Antonio. TX. 782052797 5121225.4191

An Equal Opportunity/ Affirmotlve Actlon Employer 

# The Attorney General of Texas

.hne 19, 1986

Mr. TimothyD. Yes.ts Howard CountyAttxney P. 0. Box 2096 Big Spring,Texas 79721 OpinionNo. m-501
Re: Permissiblevariances in signatures on a petition for a local option election under the Alcoholic Beverage Code
Dear Mr. Yeats:
Pursuant to section 251.03 of the Alcoholic Beverage Code, petition was circulated among the qualified voters of Howard County for the purpose of determiningwhether the sale of certain alcoholic beverages would be authorized within the county. The petition returned in timely fashion to the registrarof voters of Howard County for verification. An undisclosed number of voters' signatures were rejected when thexe appeared minor variances between the signatures and the names of the voters as they appeared on the official copy the current list of registeredvoters.
It is under this factual setting that you ask the following questions: 1. Is a signature invalid if it adds or leaves

out a niddle initial as compared to the official current list of registeredvoters? 2. Is a signature invalid if the firstname on the petition is shortened or lengthened (RobertBob) as compared to the currentvoter's list? 3. Is a signature invalid if a middle name on the pet.itionis added or left out as compared to the currentvoterls list? 4. Does the registrar have discretion in approving or rejecting the signatures, and if so, would x.erificationin any of the above situations amount to an abuse of that discretion?
As the following paragraphs will explain, we believe the voter registrar acted properly when she rejected the nonconforming signatures.

p. 23001 Mr. TimothyD. Yeats - Page ;! (JM-501)

-, You suggest that the rt?gistrar's actionswere promptedby section 251.10 of the Alcoholic Beverage Code. This provision instructs the registrar toverify the signaturesappearingon a petition calling for a local option election. 1,:sets forth the followingrequirements:

(a) The regiiitrarof voters of the county shall check the r.amesof the signers of petitions and the voting pmcincts in which they reside to determinewhether .thesigners of the petitionwere qualifiedvoters XE the county, justiceprecincts, or incorporated city or town at the time the petition was issced. The registrar shall certify to the comm1ssione.mcourt the number of qualified voters signing thepetition. (b) No signaturemay be counted. eitherby the registrar or com&sioners court, where there is reason to believe that:

-- (1) it is not the actual signature of the purported signer; (2) the voter registration certificate number is not correct; (3) the voter registration certificate number is not :inthe actual handwriting of the signer; (4) it is a duplicationeither of a name or of handwriting:used in any other signature on the petition; (5) the rmidence address of the signer is not correct or is not in the actualhandwriting of the signer;,

z (6) the name of the voter is not signed -- exactly as it appears on the official copy of the current 1Tst of registered voters for the voting year .jzwhich the petition is issued. (Emphasisaddml)
. Alto. Bev. Code 9251.10. Your questions assume that with the exception of subsection :b)(6), all other requirements of section 251.10 aremet and that no indication of fraud or forgery is present. Because your fourth quest&m necessarily controls the answers to those preceding it,we shall comider this question first.

p. 2301Mr. TimothyD. Yeats - Page 3 (JM-501)

Your final question concerns the amount of discretion the registrar is granted by section 251.10. It is suggested that the registrar may have the dtixretion to waive nonconforming signatures appearingon local option r,lection petitions if all other requirements of subsection (b)aremet. This suggestion is inspiredby the use of the word %sy" in subsection (b): “[Ii]0 counted.
. . ." signature % be

The portjon of the Texas Liquor Control Act from which subsection (b) is det,ived was phrased: "[nlo signature shallbe counted.
. . ." Penal Code,art. 666-32 (repealed1977). Although the word "may" generally conrm:es a discretionary function, "no signature may . . .I' (Mich. is clearlymanda.tory. Ryan V. I$mtgomery, 240 N.W.Zd 236

1976) ("may not" means "shall not ). Matter of Estate of Minnick, 653 S.W.Zd 503 (TEx.App. - Amarillo 1983,no writ).
In construingelectior. laws. it is necessary to determinewhether the provisions under scrutiny are mandatory or directory in nature. Branaumv. Patrick, 643 S.k'.Zd 745, 749 (Tex.App. - SanAntonio 1982, no writ). In general, election laws are to be construed as directory in the absence of fraud 01'mandatory provisions. Stotler v. Fetzer, 630 S.W.Zd 782 (Tex.App. -.Houston [lst Dist.] 1982, writ dism'd); Attorney General Opinion 511-467(1986). Because the right to vote is fundamental,election law ptovisions relating to voters are construed as directory. Leach v. Fischer, -- 669 S.W.Zd 844 (Tex. App. - Fort Worth 1984, no writ); Bramum v. Patrick, supra. -- Irregularities in the electionprocesswhich do not disenfranchisethe voters or affect the result of an election 6.re generally treated as informalities. See Branaumv. Patrick, supra, at 750. Election lawprovisionsconcern= candidatesand their qualificationsaremandatorybecause the right to hold office is considered8. privilege. Leach v.-Fischer,supra.- We believe section 251.10 is a mandatory provision. Granted, this sectiondoes not dealwith the qualificationsof a candidate. It does, however, concern wt.etherthe election issue, rather than a candidate's name, will be placed on the ballot. In this sense, section 251.10must be comtrued as mandatory. Cf. Leach V. Fischer, supra. Moreover, because we believe subsection(b) is clear and unambiguous, it must be enforced according to its express language. CallV. ServiceMotors, Inc,,, 660 S.W.Zd 814. 815 (Tex. 1983). Subsection (b)(6) of article 251.10 simply and clearly requires the person signing a local option election petition to sign his name "exactly as it appears on -the
. . . list of registered voters." It does not, in our opinion,authorizeany variancebetween the signature and the correspondingname on the list of registeredvoters. Nor does it provide an alternative ,mathodof verifying signatures. Penal Code article 666-32 was interpr,etedto grant the commissioners court and county clerk the authority to adopt any necessary and reasonablemeans to ascertain the number of required signatures and to determine whether the signers of the petitionwere qualifiedvoters. See Akers -- V. Remington, 115 S.W.Zd 714, 720 (Tex.Civ. App. - Fort Worth 1938,

p. 2302Mr. TimothyD. Yeats - Page 4 (JM-501)

writ dism'd); Attorney Gen'sralOpinions E-199 (1974); C-266 (1964); C-263 (1964); NW-1356 (19t2); O-7218 (1945); O-6364 (1945). These opinions, however, concermd the performance of duties clearly expressed in the statute. 'Theydid not consider the case where the election officials seek to mold or deviate from theprovisions of the statute. We find nothing in the Alcoholic Beverage Code which suggests that the regist:rar has any discretion to waive the requirements of the Code. Compare Eutson v. Smith, 191 S.W.Zd 779, 784-85 (Tex.Civ. App. - Galveston 1945,no writ) (commissionerscourt has authority to call local option election independent of petition; thus, court's order callin for local option election constituted waiver of defects apparent on face of petitionwhen commissionershad full knowledge of such defects). Consequently, the registrar has no discretion towaive the signaturerequirementof section 251.10(b)(6), even if all other requiremeatsof subsection (b)are satisfied. Ordinarily, any mark xade with the present intention to adopt or authentic

:ate the document %s a legally sufficient signature. See Delespine v. State, 396 S.k'.Zd133, 136 (Tex.Grim. App. 1965), cert. denied 384 U.S. 1019 (1966). See also Gov't. Code §§311.005(6), 312.011(14) (definitionof "signed" and flsignature").However. given the mandatory character XE -subsection (b)(6), your first three questionsmust be answered in the affirmative.
SUMMARY The provision!;of section 251.10, subsection (b) of the Alcohclic Beverage Code are mandatory. The registrar of voters has no authority to waive the signature recuirement of section 251.10(b)(6) If all other re$,uirementsof subsection (b) are met.

JIM MATTOX Attorney General of Texas
JACKHIGRTOWER FirstAssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General
ROBERT GRAY SpecialAssistantAttorney General

p. 2303Mr. TimothyD. Yeats - Paga!5 (JM-501)

RICK GILPIN Chairman,Opinion Comittel! Preparedby Rick Gilpin AssistantAttorney General

p. 2304