GENERAL 

July 30, 1963 

Honorable James E. Barlow Opinion No. C- 116 

Criminal District Attorney 

Bexar County Re: Construction of Sec. 3, Art. 

San Antonio, Texas IX of the Constitution relative 

to vote required for adoption' 

Dear Sir: of a county home rule charter. 

In your letter requesting an opinion of this office, you 

state that Bexar County is in process of drafting a home rule charter 

to be submitted to the voters early In the fall, and you ask for an 

opinion on the number of votes which are required to adopt the charter. In substance, your question is whether the vote required is a 

majority of the qualified electors eligible to vote, or only a majority 

of those actually voting at the election. Directly Involved Is a noti-- 

struc.ticn of the following provision in Subsection (2) of Section 3, 

Article IX of the Texas Constitution: 

1, .No County Home Rule Charter may be adopted 

by any'c&nty save upon a favoring vote of the resident 

qualified electors of the affected county. In elections 

submitting to the voters a proposal to adopt a Charter 

(unless otherwise provided by a two-thirds vote of the 

total membership of each House of the Legislature) the 

votes cast by the qualified electors residing within the 

limits of all the Incorporated cities and towns of the 

county shall be separately kept but collectively counted and the votes of the qualified electors of the county 

who do not reside within the limits of any incorporated 

city or town likewise shall be separately kept and separately counted, and unless there be a favoring majority of 

the votes cast within and a favoring majority of the votes 

cast without such collective cities and towns, the Charter 

shall not be adopted." 

Acting under the provision authorizing the Legislature to 

change the requirement for separation of the votes cast within and 

without the cities and towns, the Legislature in 1951 passed a statute 

(Article 1606b, V.C.S.) which provides as follows: 

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Hon. James E. Barlow, page 2 (C- 116 ) 

“Authority is hereby conferred upon Bexar County 

to adopt a ‘Home Rule Charter’ In accordance with the 

provisions of Section 3 of Article IX of the Constitution of Texas by a favoring vote of the resident quallfied electors of said County, and It shall not be necessary for the votes cast by the qualified electors residing 

within the limits of all the incorporated cities and 

towns of the county to be separately kept not separately 

counted from those cast by qualified electors of the 

county who do not reside within the limits of any incorporated city or town, and a favoring majority of the 

votes of such electors cast in the county as a whole 

shall determine the result of such election.” 

In your brief you have reached the conclusion that the 

language of the constitutional provision requiring “a favoring vote 

of the resident qualified electors of the affected county” makes 

a majority vote of all qualified electors necessary for adoption 

of the charter. You have concluded, further, that Article 1606b 

is unconstitutional because it attempts to require only a majority 

of the votes cast at the election, and that the election in Bexar 

County will have to proceed under the provisions of Article 1606a, 

V.C.S. (the general enabling statute) and the votes In the cities 

will have to be kept and counted separately from the votes in the 

remainder of the county. 

Section 15 of Article 1606a provides: 

“If the election results In a constitutional 

majority of the votes cast in the election being 

for the charter, the same shall be declared to be 

adopted. . . . I . . I’ 

Section 15a of Article 1606a repeats the provisions of Section 3, 

Article IX quoted above, except for omission of the parenthetical 

language permitting the Legislature to change the requirement for 

a favoring vote both within and without the cities and towns. You 

have concluded that, In view of Section 15a, the “constitutional 

majority” required by Section 15 means a majority of the qualified 

electors of the county. 

We are unable to agree with your construction of the 

quoted constitutional provision. The first sentence of the quotation, 

standing alone, Is ambiguous, but when.construed In conjunction with 

the succeeding sentence we think it Is, clear that “a favoring vote 

of the resident qualified electors of the affected county” means a 

majority of the votes cast at the election. The phrase ‘resident 

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Hon. James E. Barlow, page 3 (C- 116 ) 

qualified electors of 

eligible to vote, but 

the affected county” defines the persons 

does not define the basis on which the 

-~ favorable vote shall be determined. The second sentence explains 

the vote required for adoption. It provides that (unless otherwise provided by Legislature) the charter shall not be adopted 

“unless there be a favoring majority of the votes cast within and 

and a favoring madority of the votes cast with t h collective 

cities and towns. (Emphasis added,) In our Ei,nii:, the intended meaning of these provisions is that the converse shall also be 

true, i.e., that the charter shall be adopted If there Is a favoring majority of the votes cast within and a favoring majority of the 

votes cast without the cities and towns. We do not find any warrant 

for reading Into these provisions the further requirement that the 

combined majorities must be a majority of all qualified electors 

of the county. 

The construction we place on the provision under consideration Is supported by other rovlsions in Section 3 of Article IX. 

Paragraph e of Subsection (3 P provides that ‘any county may, by a 

majority vote of the qualified electors of said county, amend its 

Charter to include other powers. ., . . .“’ -Subsection (7) provides that 

charters shall make appropriate provision for the abandonment, revocation, and amendment-thereof, “subject only to the requirements 

that there must be a favoring ma.lorit?? o??f %ie vote cast upon such 

a proposal, by the qualified resident electors of the county....,. .I’ 

ion (7), It Is clear that 

ors of said county” means a \ 

Emphasis added.) In view of Subsect 

‘majority vote of the qualified elect 

majority-of those voting at the election. The similar language, 

“favoring vote of the resident qualified electors of the affected 

county,” should be construed to have similar meaning. Walker v. 

Ko er 99 S.W.2d 1034 (Tex.Civ.App. 1937, error dism.); 39 T 

3iiki01, Statutes, Sec. 108. 

ex. 

Attorney Qeneral’s Opinion No. C-54 (1963) Involved the 

vote required for creation of hospital districts under Section 9, 

Article IX of the Constitution. One yovislon of the section states 

that a district shall not be created unless approved by a majority 

of the qualified property taxpaying electors thereof voting at an 

election called for the purpose,” whereas a subsequent provision 

states that no district shall be created except by act of the Leglslature “and in no event may the Legislature provide for a district 

to be created without the affirmative vote of a majorlt of the taxpaying voters in the district concerned.” In holding t K at the latter 

provision was not Intended to require anything more than, a majority 

vote of those voting at the election, the opinion alluded to the rule 

stated in 39 Tex.Jur. 162, Statutes, Sec. 91, to the effect that a 

statute should be given a reasonable and sensible construction, and 

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- . 

Hon. James E. Barlow, page 4 (C- 116 ) 

irrational conclusions or deductions should be avoided in the 

absence of compelling language found in the enactment. 

This rule may aptly be applied to the present inquiry. 

Apart from the clarifying language following the provision, a very 

practical argument for concluding that the provision under consideration was not intended to require a majority vote of all qualified 

electors Is that there is no means by which the canvassing authorities 

may accurately ascertain the number of qualified electors in the 

county. In 1933, when the County Home Rule Amendment was adopted, 

as at the present time, voters exempt from payment of the poll tax 

on the ground of overage and who do not live in a city of 10,000 

or more Inhabitants are not required to obtain an exemption certificate or to register In any manner. Also, at that time certain persons exempt on the ground of nonage or nonresidence were not required 

to obtain exemption certificates. 

Moreover, 

Arts. 2968, 2969, R.C.S. of 1925. 

the tax collector’s list of qualified voters might not 

accurately reflect as of the day of the election the number of qualified 

voters in the county who were required to obtain poll tax receipts or 

exemption certificates, because of deaths and removals into and out of 

the county after the receipts and certificates were Issued. A requlrement for a majority vote of all qualified electors might leave the 

outcome of some elections unresolved or in doubt because of the inability to determine the number of qualified electors. It is unreasonable to believe that such a result was intended In the absence of 

compelling language. 

In view of the lack of means for accurate ascertainment of 

the number of 

of Article % 

ualified electors in the county, the constitutionality 

160 b 

Worth v. Davis, 

could be sustained on the authority of City of Fort 

57 Tex. 225 (1882), 

vision Itself 

even if the constitutional proshould be construed to require a majority vote of all 

qualified electors residing in the county. In that case the court 

held that a constitutional provision authorizing the levy of a municipal tax “If two-thirds of the taxpayers of such city or town shall vote 

for such tax” required an affirmative vote of two-thirds of all the 

taxpayers in the town who were qualified voters, but the court upheld 

a statute implementing the constitutional provision which required an 

affirmative vote of two-thirds of the taxpayers voting a,t the election, 

on the ground that the constitution prescribed no means of ascertaining 

the number of taxpaying qualified voters in the city and it was ,competent 

for the Legislature to adopt the number of votes cast as the test for 

the number of taxpaying voters on the day of the election. 

Since succeeding provisions in Section 3, Article IX clarify 

the meaning of “a favoring vote of the resident qualified electors of 

the affected county,” It is unnecessary to dwell on what construction 

would be given the quoted language standing alone; but it might be 

-579- 
Hon. James E. Barlow, page 5 (C- 116 ) 

mentioned that the Texas courts have held that constitutional and 

statutory provisions requiring a majority vote of the qualified' 

voters mean a majority of those actual1 voting at the election. 

Bradshaw v. Marmlon, 188 S.W. 973 (19167; Marsden v. Troy 

W 9bl (Tex.Clv.App. 1916); SW 195 S W 53i8TTex 

&v:App. 1917); State ex rel. Wilkinson v. S 

(Tex.Clv.App. 1945) 

elf, 191 S.fi.2d 756 ,* 

E ason v. Robertson, 288 S W.2d 269 (Tex.Civ. 

App. 1956, error di&n.). Whll 

. 

th e reasoning In some of the cases 

might allow for a distinction between the use of the phrase "qualifled voters" and the phrase "qualified electors," the reason advanced 

in other cases is equally applicable to either term. 

It is our opinion that Section 3, Article IX of the Constltution requires only a majority vote of the qualified electors voting 

at the election. We therefore are of the opinion that the provision 

in Article 1606b, V.C.S., requiring a favoring majority of the votes 

cast is not in conflict with the Constitution. 

SUMMARY 

The vote required by Section 3, Article IX of 

the Texas Constitution for adoption of a county home 

rule charter Is a majority of the qualified electors 

who actually vote at the election rather than a majority 

of all qualified electors eligible to vote. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

MKW:jh:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

J. S. Bracewell 

George Gray 

Milton Richardson 

By 27 K %=+= 

Mary . Wall 

'Assistant 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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