### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

March 3,2004

The Honorable Chris Harris Chair, Committee on Administration Texas State Senate P-0. Box 12068 Austin, Texas 787 1l-0268 Opinion No. GA-01 60 Re: Determination of the minimum number of signatures required on a petition for a local option election under the Alcoholic Beverage Code (RQ-0107-GA)
Dear Senator Harris: You ask two questions concerning local option elections. You first ask whether voters on the “suspense list” or “S list” areto “beincluded inthe total percentage ofregistered voters required to sign [a] local option petition.“’ Chapter 25 1ofthe Alcoholic Beverage Code governs local option elections. See TEX. ALCO. BEV.CODE ANN. $9 25 1.Ol-81 (Vernon 1995 & Supp. 2004). Provisions for “suspense lists” or “S-lists” generally are found in chapter 15 of the Election Code, subchapters D and E. See TEX. ELEC. CODE ANN. $j§ 15.081-. 112. (Vernon 2003). A suspense list contains the name of each registered voter who failed to submit to the registrar a response confirming the voter’s current address. See id. 8 15.08 1;see also id. §§ 15.05l-.053 (addressing confirmation notice, forms, and response). Section 251.11(d) ofthe Alcoholic Beverage Code, however, provides that voters “whose names appear on the list of registered voters with the notation ‘S,’ or a similar notation, shall be excluded from the computation of the number ofregistered voters of aparticular territory.” TEX. ALCO. BEV. CODEANN. 5 251.l l(d) (Vernon Supp. 2004). Subsection (d) was added by the Seventy-eighth Legislature during itsRegular Session, and its effective date was September 1’2003. It is, therefore, clear that signatures with the notation “S” or similar notation may not be included in calculating the number ofrequired signatures on apetition to hold alocal option election that is circulated after September 1’2003 .2

‘Letter from Honorable Chris Harris, Chair, Committee on Administration, Texas State Senate, to Honorable Greg Abbott, Texas Attorney General (Sept. 16,2003) (on file with Opinion Committee) [hereinafter Request Letter].

2Section 13ofthe act amending section 25 1.11 provides that “[tlhe changes in law made by this Act apply only to alocal option election for which an application for apetition is filed on or after the effective date ofthis Act. A local option election for which an application for apetition is-filed before the effective date ofthis Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.” Act of May 22, 2003,78th Leg,. R.S., ch. 1047, $ 13,2003 Tex. Gen. Laws 3007,301O.The Honorable Chris Harris - Page 2 (GA-0160)

You next ask whether an election official has the “discretion to create rules for calculating the minimum number of signatures required for a local option alcohol petition absent specific language in the Alcoholic Beverage Code.” Request Letter, supra note 1,at 1. Section 25 1.11 sets forth requirements for ordering a local option election and establishes the minimum number of signatures required for various types ofpetitions: (a)The commissioners court, atitsnext regular session on orafter the 30th day after the date the petition is filed, shall order alocal option election to be held on the issue set out in the petition ifthe petition is filed with the registrar of voters not later than the 60th day after the date the petition is issued and bears the actual signatures of anumber ofqualified voters of the political subdivision equal to:

(1) 35 percent of the registered voters in the subdivision for a ballot issue that permits voting for or against; (A) “The legal sale of all alcoholic beverages foroff-premise consumption only.“; (B) “The legal sale of all alcoholic beverages, except mixed beverages.“; (C) “The legal sale of all alcoholic beverages including mixed beverages.“; or (D) “The legal sale of mixed beverages.“; (2) 25 percent of the registered voters in the subdivision who voted in the most recent general election for aballot issue that permits voting fororagainst “The legal sale ofwine on the premises of aholder of awinery pennit.“; or (3) 35 percent of the registered voters in the subdivision who voted in the most recent gubernatorial election for an election on any other ballot issue.

(d) Voters whose names appear on the list ofregistered voters with the notation “S,” or a similar notation, shall be excluded from the computation of the number ofregistered voters of aparticular territory.The Honorable Chris Harris - Page 3 (GA-0160)

TEX.ALCO.BEV.CODEANN. 025 1.11(a)(l)-(3), (d) (Vemon Supp. 2004). The legislature has thus provided specific instructions for the computation of voters in alocal option petition, including a precise mathematical formula for calculating the required number ofvoters. Where the language of astatute isclear and unambiguous, there isno room for additional interpretation. SeeFleming Foods of Tex. v.Rylander, 6 S.W.3d 278,284 (Tex. 1999); see also Mitchell Energy Corp. v.Ashworth, 943 S.W.2d 436, 438 (Tex. 1997) (in construing a statute one must attempt to give effect to the legislature’s intent). As aresult, an election official does not have discretion to adopt additional rules for calculating the minimum number of signatures required.The Honorable Chris Harris - Page 4 (GA-0160)

SUMMARY Suspense list voters may not be included in determining the minimum number of required signatures for a local option alcohol petition. An election official does not have discretion to adopt rules for calculating the minimum number ofsignatures required for alocal option alcohol petition.

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S.FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee