JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin. TX. 78711.2548 

51214752501 

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An Equal Opportunity/ 

Affirmotlve Actlon Employer 

The Attorney General of Texas 

.hne 19, 1986 

Mr. Timothy D. Yes.ts 

Howard County Attxney 

P. 0. Box 2096 

Big Spring, Texas 79721 

Opinion No. m-501 

Re: Permissible variances 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 determining whether the sale of certain alcoholic 

beverages would be authorized within the county. The petition 

returned in timely fashion to the registrar of 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 registered voters. 

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 registered voters? 

2. Is a signature invalid if the first name on 

the petition is shortened or lengthened (RobertBob) as compared to the current voter's list? 

3. Is a signature invalid if a middle name on 

the pet.ition is added or left out as compared to 

the current voterls list? 

4. Does the registrar have discretion in 

approving or rejecting the signatures, and if so, 

would x.erification in 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. 2300 
1 

Mr. Timothy D. Yeats - Page ;! (JM-501) 

-, 

You suggest that the rt?gistrar's actions were prompted by section 

251.10 of the Alcoholic Beverage Code. This provision instructs the 

registrar to verify the signatures appearing on a petition calling for 

a local option election. 1,: sets forth the following requirements: 

(a) The regiiitrar of voters of the county 

shall check the r.ames of the signers of petitions 

and the voting pmcincts in which they reside to 

determine whether .the signers of the petition were 

qualified voters XE the county, justice precincts, 

or incorporated city or town at the time the 

petition was issced. The registrar shall certify 

to the comm1ssione.m court the number of qualified 

voters signing the petition. 

(b) No signature may be counted. either by 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 :in the actual handwriting of the 

signer; 

(4) it is a duplication either 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 actual handwriting 

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 .jz which the petition is issued. 

(Emphasis addml) . 

Alto. Bev. Code 9251.10. Your questions assume that with the 

exception of subsection :b)(6), all other requirements of section 

251.10 are met 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. 2301 
Mr. Timothy D. 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 

appearing on local option r,lection petitions if all other requirements 

of subsection (b) are met. This suggestion is inspired by 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 shall be 

counted. . . ." Penal Code, art. 666-32 (repealed 1977). Although the 

word "may" generally conrm:es a discretionary function, "no signature 

may . . .I' 

(Mich. 

is clearly manda.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 construing electior. laws. it is necessary to determine whether 

the provisions under scrutiny are mandatory or directory in nature. 

Branaum v. Patrick, 643 S.k'.Zd 745, 749 (Tex. App. - San Antonio 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 election process which do not disenfranchise the voters or affect 

the result of an election 6.re generally treated as informalities. See 

Branaum v. Patrick, supra, at 750. Election law provisions concern= 

candidates and their qualifications are mandatory because the right to 

hold office is considered 8. privilege. Leach v.-Fischer, supra.- 

We believe section 251.10 is a mandatory provision. Granted, 

this section does not deal with the qualifications of a candidate. It 

does, however, concern wt.ether the election issue, rather than a 

candidate's name, will be placed on the ballot. In this sense, 

section 251.10 must 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. 

Call V. Service Motors, 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, authorize any variance between the signature 

and the corresponding name on the list of registered voters. Nor does 

it provide an alternative ,mathod of verifying signatures. Penal Code 

article 666-32 was interpr,eted to grant the commissioners court and 

county clerk the authority to adopt any necessary and reasonable means 

to ascertain the number of required signatures and to determine 

whether the signers of the petition were qualified voters. -- See Akers 

V. Remington, 115 S.W.Zd 714, 720 (Tex. Civ. App. - Fort Worth 1938, 

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

writ dism'd); Attorney Gen'sral Opinions 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. 'They did not consider the case where the 

election officials seek to mold or deviate from the provisions 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) (commissioners court 

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 petition when commissioners had 

full knowledge of such defects). Consequently, the registrar has no 

discretion to waive the signature requirement of section 251.10(b)(6), 

even if all other requiremeats of 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'.Zd 133, 136 (Tex. Grim. App. 1965), cert. 

denied 384 U.S. 1019 (1966). See also Gov't. Code §§311.005(6), 

312.011(14) (definition of "signed" and flsignature"). However. given 

the mandatory character XE -subsection (b)(6), your first three 

questions must 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$,uirements of subsection (b) are 

met. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGRTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

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

RICK GILPIN 

Chairman, Opinion Comittel! 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 2304