GENERAL

July 30, 1963

Honorable JamesE. Barlow Opinion No. C- 116 Criminal District Attorney Bexar County Re: Construction of Sec. 3, Art. SanAntonio, Texas IXof the Constitution relative to vote required for adoption' Dear Sir: of acounty homerule charter.

In your letter requesting an opinion of this office, you state that Bexar County is in process of drafting ahomerule charter to be submitted to the voters early In the fall, andyou 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 amajority 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 IXof the Texas Constitution:

1, .NoCounty HomeRule Charter maybe adopted by any'c&nty save upon afavoring vote of the resident qualified electors of the affected county. In elections submitting to the voters aproposal to adopt aCharter (unless otherwise provided byatwo-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 whodonot reside within the limits of any incorporated city or town likewise shall be separately kept and separately counted, andunless there be a favoring majority of the votes cast within andafavoring 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 astatute (Article 1606b, V.C.S.) which provides as follows:

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“Authority is hereby conferred upon Bexar County to adopt a ‘HomeRule Charter’ In accordance with the provisions of Section 3of Article IXof the Constitution of Texas by afavoring 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 whodonot reside within the limits of any incorporated city or town, andafavoring 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 amajority vote of all qualified electors necessary for adoption of the charter. Youhave concluded, further, that Article 1606b is unconstitutional because it attempts to require only amajority 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 15of Article 1606a provides:

“If the election results In aconstitutional majority of the votes cast in the election being for the charter, the sameshall be declared to be adopted.

...I

. .I’
Section 15a of Article 1606a repeats the provisions of Section 3, Article IXquoted above, except for omission of the parenthetical language permitting the Legislature to change the requirement for
afavoring vote both within andwithout the cities and towns. You have concluded that, In view of Section 15a, the “constitutional majority” required by Section 15meansamajority of the qualified electors of the county.

Weare unable to agree with your construction of the quoted constitutional provision. Thefirst sentence of the quotation, standing alone, Is ambiguous, but when.construed In conjunction with the succeeding sentence wethink it Is, clear that “a favoring vote of the resident qualified electors of the affected county” meansa majority of the votes cast at the election. Thephrase ‘resident

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qualified electors of eligible to vote, but the affected county” defines the persons does not define the basis onwhich 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 afavoring majority of the votes cast within and andafavoring madority of the votes cast with t hcollective 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 afavoring majority of the votes cast within and afavoring majority of the votes cast without the cities and towns. Wedonot find anywarrant 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 weplace on the provision under consideration Is supported by other rovlsions in Section 3of Article IX. Paragraph eof Subsection (3Pprovides that ‘any county may, by a majority vote of the qualified electors of said county, amendits Charter to include other powers. .,. . .“’ -Subsection (7) provides that charters shall makeappropriate provision for the abandonment, revocation, and amendment-thereof, “subject only to the requirements that there must be afavoring ma.lorit?? o??f%ievote cast upon such
aproposal, by the qualified resident electors of the county....,. .I’ ion (7), It Is clear that
ors of said county” meansa \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. Koer 99S.W.2d 1034 (Tex.Civ.App. 1937, error dism.); 39T 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 IXof the Constitution. One yovislon of the section states that adistrict shall not be created unless approved by amajority of the qualified property taxpaying electors thereof voting at an election called for the purpose,” whereas asubsequent provision states that nodistrict shall be created except by act of the Leglslature “and in no event maythe Legislature provide for adistrict to be created without the affirmative vote of amajorlt of the taxpaying voters in the district concerned.” In holding t at K the latter provision was not Intended to require anything more than,amajority vote of those voting at the election, the opinion alluded to the rule stated in 39Tex.Jur. 162, Statutes, Sec. 91, to the effect that a statute should be given areasonable 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 mayaptly be applied to the present inquiry. Apart from the clarifying language following the provision, avery practical argument for concluding that the provision under consideration was not intended to require amajority vote of all qualified electors Is that there is nomeans bywhich the canvassing authorities mayaccurately ascertain the number of qualified electors in the county. In 1933, whenthe County HomeRule Amendmentwasadopted, as at the present time, voters exempt from payment of the poll tax on the ground of overage andwhodonot live in acity 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 whowere 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. Arequlrementfor amajority 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 aresult 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 160b Worth v. Davis, could be sustained on the authority of City of Fort 57Tex. 225 (1882), vision Itself even if the constitutional proshould be construed to require amajority vote of all qualified electors residing in the county. In that case the court held that aconstitutional provision authorizing the levy of amunicipal tax “If two-thirds of the taxpayers of such city or town shall vote for such tax” required anaffirmative vote of two-thirds of all the taxpayers in the townwhowere 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,tthe election, on the ground that the constitution prescribed nomeansof 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 IXclarify the meaning of “a favoring vote of the resident qualified electors of the affected county,” It is unnecessary to dwell onwhat construction would be given the quoted language standing alone; but it might be

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mentioned that the Texas courts have held that constitutional and statutory provisions requiring amajority vote of the qualified' voters meanamajority 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 195SW 53i8TTex &v:App. 1917); State ex rel. Wilkinson v. S (Tex.Clv.App. 1945) elf, 191S.fi.2d 756 ,* E ason v. Robertson, 288 SW.2d 269 (Tex.Civ. App. 1956, error di&n.). Whll . thereasoning In some of the cases might allow for adistinction 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 IXof the Constltution requires only amajority vote of the qualified electors voting at the election. Wetherefore are of the opinion that the provision in Article 1606b, V.C.S., requiring afavoring majority of the votes cast is not in conflict with the Constitution.
SUMMARY
Thevote required by Section 3, Article IXof the Texas Constitution for adoption of a county home rule charter Is amajority of the qualified electors whoactually vote at the election rather than amajority of all qualified electors eligible to vote.
Yours very truly,
WAGGONER

CARR Attorney General

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APPROVED: OPINIONCOMMITTEE
W.V. Geppert, Chairman J. S. Bracewell George Gray Milton Richardson 

# By 27 K %=+= Mary

.Wall 'Assistant

APPROVED

FORTHEATTORNEY GENERAL BY: Stanton Stone

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