November 5,1970

Ronorable Burton S. Burks County Attorney, Hood County Granbury, Texas 76048 Opinion NO. !I-724

Re: Refund ofmonies paid under Article 666-32 l/2 (b)Vernon's Penal Code, for calling of Dear Mr. Burks: local option election.

You have requested an opinion from this office regardingwhether monies paid under Article 666-32 l/2 (b),Vernon's Penal Code, by aprivate individual for calling a local option election,must be refunded to this individual when the county has not had a local option election for several years prior to the recent election in question.

Article 666-32 l/2,Vernon's Penal Code is set out in full as follows:

"Art. 666-32 l/2. Expense ofholding elections

(a) The expense of holding any local option election authorized by the Texas Liquor Control Act in any county, justice precinct or incorporated city or town shall be paid by the county, but the expense to the county shall be limited to theholding of one election in each of the above political subdivisions within a one-year period where the intent of the electron 1s to legalize the sale of alcoholic beverages, and the expense to the county shall be limited to theholding of one election in each of the aforesaid political subdivisions within
a one-year period where the intent of the electron is togohibit the sale of alcoholic beverages. All other local option electlons, excepting the aforementioned

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this asprescribed in Subsection; (b)of

__._-,_,__..,,-_I-..-. section as follows: (b) When the application for an election in a county, justice precinct
or incorporated city or town ispresented, the county clerk at the time andbefore the issuance of anypetition for a local option election s!lallrequire adeposit in the form of a cashier's check in the aggregate amount of twenty-five cents per voter listed on the current list of registered voters as residing in the county, justice precinct or incorporated city or town forwhich the election is sought. Themoney so received shall be deposited in the county's general fund, and no refund shall be made to the applicants regardless ofwhether thepetition is returned to the county clerk or t!lc election is ordered. When there is presented to the county clerk an application which must be accompanied by a

--- .._- -,__.-, deposit, the county clerk shall not Esza' petition to the applicants unless anduntil thedeposit ismade, and
a county clerkwho issues apetition upon sucllan application without first receiving the deposit is guilty of a misdemeanor and shall be fined not less than twohundred dollars normore than fivehundred dollars, or imprisoned in the county jail fornotmore than 30 days, orboth fined and imprisoned." (Emphasis added.)

The 60th Legislature passed and the Governor approved Senate Bill No. 58 (Acts60th Leg., R.S. 1967, Ch. 723, p. 1858), which was entitled Election Code Revision; and in this lencthy

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Honorable Burton S. Burks, Page 3 (E-1-734)

bill, as Section 12 thereof, the Texas Liquor Control Actwas amended by adding anew section codified asArticle 666-32 l/2, Vernon's Penal Code, set out above. The caption of Senate Bill No. 58 refers to this section in the following language:

"* * *

. . .andadding Section 32 l/2, Article I,Texas Liquor Control Act, relating topayment for the expense of holding such elections and providing
apenalty for issuance of apetition for an election under certain circumstances: * * * *n

The cardinal rules of statutory construction applicable here require thatwhen a statute is susceptible ofmore than one construction itwill be interpreted as tobest secure thebenefit intended: will best effect the leqislative intent and so that itwill be constitutional and valid. Newsom v. State, 372 SW 2d 681 (Tex.Crim. 1963). Once the legislative intent is ascertained, it should be given effect, even though the literalmeaning of thewords used therein isnot followed. Wood v. State, 133 Tex. 110, 126 SW 2d 4 (1939), 121ALR 931.

IfArticle 666-32 l/2 (b),Vernon's Penal Code, were tobe interpreted as compelling adeposit tobemade with the county clerkwith every application for a local option election, regardless ofwhether such a local option election has been held in the immediate prior one-year period, such an interpretation would defeat the exception underlined inparagraph (a) of theAct above, which places the expense of the local option election on the county ifno such election had occurred in the prior one-year period. This construction would in effect change this statute into an "application fee" statute, andbecause of the failure to adequately describe itas such in the caption of the legislative act inwhich itwas included, that constructionwould render it invalid, Art. III, Sec. 35,Constitution of Texas.

Themore appropriate andproper construction of this statute is that the underlined portions of paragraph (a)of the statute, as set out above, clearly mean that if there has been no local option election in thepreceeding one-year period, the expense of the election is that of the county and only if there has been such an election in the prior one-year period,

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in that political subdivision, then theparagraph (b)requirement for adeposit becomes mandatory. The clause underlined inparagraph (b)above recognizes that there are applications which must be accompanied by adeposit andby implication recognizes that there are applications which do not require such deposits.

Based on the foregoing analysis, it is our opinion that the private individual calling for a local option election in apolitical subdivision that has not had such an election in thepreceeding one-year period should not have been required tomake adeposit with the county clerk and that such deposit should be refunded by the county clerk to thepayor.

s rJ I? PI A R Y ------.-,--
A deposit made with the county clerk pursuant toArticle 666-32 l/2 (h),Vernon's Penal Code, with an application for a "local option election" in a county which has not had such an election in thepreceedinq oneyear period, should be refunded to the depositor. ';
Very truly yours,

Prepared by Robert Giddings Assistant Attorney General

APPROVED OPINION COMXTTEC

Kerns Taylor, Chairman W. E.Allen, Co-Chairman Jay Floyd John Reeves RexWhite Fisher Tyler

MEADE F. GRIFFIN Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant -3505-