Honorable Compton White 

County Auditor 

Fre’estone County 

Fairfield, Texas 

Dear Sir: Opinion No. O-3473 

Re: Whether the commissioners’ 

court cati legally order aloc.5~1 option election to be 

he,ld June 28, 1941, date of 

the special senatorial 

election, with the same 

election judges and clerks; 

and another related question. 

Your letter of April 2$th, requesting an opinion of this 

Department, reads as follows: 

“A petition will be presented to the commissioners’ court of 

Freestone County on May 12th, 1941, to order a beer election 

In’Freestone County. If this election Is ordered it would 

necessarily have to be held by June 2nd, 1941. CciuLtl ithe 

court legally pass this petition to June 9th and order the 

election held June. 28th, the date set for the election of a 

United States Senator, using the same election judges and 

clerks to hold both elections. 

In our county budget for the year 1941 I caloulated and the 

commlssionersf 

in 1941. 

cmrt approved funds for. holding one election 

Would it be within my power in enforoing compliance 

with the county budget to require the oommisaionersl court 

to declare an emergency to pay for the beer electi;;el;othe 

event it Is held before the Senatorial election? 

the fact that the senatorial election has already been ordered 

I sm taking the position that funds set up in our budget for 

election expense are already obligated and that any other 

charge against our budget for eleotion will have to be classed 

as an emergency by the commissioners’ court. 

to the above questions will be appreciated.” 

An early reply 

Article 666-32, Vernon's %notated Penal code, provides: 

*The ‘ommissioners Court of each county in the State upon its 

_ - 
Hon. Compton iihite, page 2, O-3473 

own motion may order an election to be held by the qualified 

voters in said county, to determine whether or not the sale 

of liquors shall be prohibited or legalized in such county, 

and such Court shall order a local option election whenever 

petitioned to do so by an many as ten (10) per cent of the 

qualified voters of said county, or of any justice precinct, 

city or town, taking the votes for Governor at the last 

preceding general election as the basis for determining the 

qualified voters in any such county, or political subdivision. 

After the first local option election held as provided In 

this Act, in any county9 justf,ce precinct, incorporated town, 

or city, no subsequent election upon the same issue in the 

same political subdivision shall be held within one (1) year 

from the date of the preceding local option election in said 

oountys or said political subdivision of said county." 

Artfole 666-33 of said Code provides: 

"When the Commissioners Court shall order an election as 

herein provided for, it shall be the duty of said Court to 

order such election to be held at the voting places within 

such subdivision or county upon a day not less than ten (10) 

nor more than twenty '20) days from the date of said order,, 

and the.order thus made shall express the object of such elea- 

'"'tion'and shall be held to be prima facie evidence that all the 

provisions necessary to give It validity or to clothe the 

Court with jurisdiction to make it valid, have been duly oomplied with, provided that said Court shall appoint such officers to hold such elections as now required to hold general 

elections." 

Article 666-34 of the Code provides that the election shall 

be held and the return-thereof made in conformity with the 

provisions of the General Laws of the State, and by the 

election officers appointed and qualified under euoh laws; and 

Article 666-36 provides that the holding of the election 

by the officers shall conform to the General Election Laws in 

force regulating elections. 

,. 

Article 666-36 of said Code provides% 

"The officers holding such eleotion shall, in all respects 

not herein specified, conform to the General Election Laws in 

force regulating elections and after the polls are closed 

proceed to count the votes and within three (3) days thereafter 

make due report of said election to the aforesaid Court. The 

provisions of the General Election Laws shall be followed in 

calling and conducting said election where not inconsistent 

herewith." 
Hon, Compton White, page 3, O-3473 

Article 666-40 of the Code provides that the Commissionn&f 

Court upon petition asprovided shall order as>provided in.. 

Article 666-32, supra, local option elections for the purpose 

of determining whether alcoholic beverages of the various 

types and alcoholic oontents shall be legalized or prohibited. 

Under Chapter 12, Article 3088, Vernon's Annotated civil 

Statutes, it is provided that every law regulating or in any 

mahner governing elections or the holding of primaries in this 

State shall be held to apply to each electfon of a candidate for 

a United States Senator so long as they.are not in conflict 

with the United States Constitution or Laws of Congress regulating the election of senators or the provisions of Chapter 12. 

This chapter, relating to filling the office of united States 

Senator, expressly designates an electionheld for the purpose 

of filling a vacancy in the Senate as a special e$e,&t4on. 

In holding a local option election the commissioners' court 

is required to appoint such officers to hold.~Phe&&sGtion 

as now required to hold general elections. At this special 

election to fill the vacancy in the United states Senate, it 

is expressly provided that every law regulating or in any 

manner governing elections in this State shall apply. wb find 

no prohibition against the holding of a local option election on 

the same day a special election to fill the vacancy in the 

United States Senate is held. It has been held by this Department that a local option election may be held on the same day 

at which a general election is held. See Opinion No. O-2853, 

yo,lume 2, p. 330, fieports of the Attorney General, 1940. 

As to the conduet of the two elections on the same day, we 

run into some difficulty. We held in a recent opinion, O3438, approved May 21st, 1941$ a copy of which is hereto attached, that the forthcoming senatorial election to fill a 

vacancy, being a special election, the proviso of Article 

2938, Revised Civil Statutes, 1925, which provides for the 

appointment of one presiding judge, one assistant judge and 

two clerks to be appointed 'by the commissioners' court, controls. Such provision, however, in so far as fixing the 

official's compensation, no 1onEer controls but is superseded 

by Article 2943, Vernon's Annotated civil Statutes, with the 

amounts fixed in the later statute controlling. 

Since the 'election judges and cler$s to be appointed for the 

special senatorial election are ssparate and distinct from 

those authorized to conduct general elections, local option 

elections and primary elections as regularly appointed under 

Articles 2937 and 2938, Revised Civil Statutes, 1925, the canduct of both elections by the same officials, should they 

be held on the same day, is not authorized. It will further be 
Hon. Compton Uhite, page 4, O-3473 

noted that not only the presfding and assistant judges, but 

the two clerks are to be appointed by the commissioners 

court under the controlling provision. 

Should both a local option election and the forthcoming senatorial or special election be held on the sgme day, it being 

our view that separate election judges and clerks to conduct 

the elections would be required, it naturally follows that 

sep'arate and distinct ballot boxes should be used. 

The Texas Liquor Control Act or the above mentioned statuges 

ado not require the commissioners' court to order the election 

the same day the required petition is presented. #when the 

court acts upon said petition, and we think the law requires 

the court to act within a reasonable time, the statutes require a date to be set not less than ten (10) nor more than 

twent 

supra ?I 

(20) days from the date of said order, (Article 666-33, 

Article 689a-11, Vernon's Annotated Civil Statutes, in part, 

provides: 

. . . The Court shall have authority to make such changes in 

the budget as in their judgment the law warrants and the 

interest of the taxpayers demand. When the budget has been 

finally approved by the Commissioners' Court, the budget, as 

a:qproved by the Court shall be filed with the Clerk of the 

'County Court, and taxes levied only in accordance therewith, 

and no expenditures of the funds of the county shall thereafter 

be made except in strict compliance with the budget as adopted 

by the Court. 'Except that emergency expendftures, in case of 

grave publfc necessity, to meet unusual and unforeseen condftions which could not, by reasonably dilfgent thought and 

attention, have been included in the original budget, may from 

time to tSme be authorfzed by the Court as amendments to the 

original budget. In all. cases where such amendment to the 

original budget is made, a copy of the order of the Court 

amendIng the budget shall be filed with the Clerk of-the 

County Court, and attached to the budget originally adopted." 

Article 689a-20, Vernones Civil Statutes, ;provides: 

"Nothing contained in this Act shall be construed as precluding 

the Legislature from making changes in the budget for State 

purposes or prevent the County Commissioners' Court from making 

changes in the budget for county purposes or-,prevent the 

governing body'of any incorporated city or town from making 

changes in the budget for city Furposes, or prevent the 

trustees or other school governing body from making changes in 
Hon. Compton White, page 5, O-3473 

the budgeta for school purposes; and the duties required by 

virtue of this Act of atate, County, City and School Officers 

or Representatives shall be performed for the compensation now 

provided by law to be paid said Officers, respectively.” 

Relative to ‘your second question, we held in our opinion No.& 

2315, approved June 6, 1940, that the disbetion exercised 

by the commissioners’ Court in declaring an emergency for amending the budget was final and should not be questioned by the 

auditor except only where the question is debatable or where 

the existence of an emergency is questionable. 

According to your letter sufficient funda for holding an 

election were set up in the 1941 budget. No importance can be 

attached to th.e fact that at the time suoh funds were set up 

the commissioners’ court of your, county possibly anticipated a 

looal option election. 

discretion, 

Should the court, exercising its 

order said local option election to be held prior 

to the forthcoming special senatorial election, the expense of 

the first election could not be held an emergency under the 

budget law with funds on hand and previously set up therein. 

The ‘obligation of such funds is not determined by the priority 

of the order calling an election but by the date upon which an 

election is first held and expenses incurred therefore 

As to your first question, it is the opinion of this .Bepartment 

that it is within the discretion of the commissioners! court 

to order a local option election to be held on the same date 

as that upon which the forthcoming special senatori~al election is 

to be held; provided such election is authorized under the law 

and is ordered within a reasonable time after the petition is 

presented containing the requisite number of qualified voters. 

Should the two elections be so held, the officials generally 

appointed to hold a local option election could not at the s&me 

time conduct the special senatorial election, the holding of 

which in each voting precinct requires the appointment of a 

presiding judge, as assistant judge and t,wo clerks by the 

commissioners t court. 

Answering your second question, it is our opinion that under the 

facts presented, the county auditor could not require the commissioners’ court to declare an emergency to pay for a local 

option election validly held previous to the special senatorial 

election called and set for June 28, 1941. However, the commissioners' court would be empowered to declare an emergency 

and amend the budget so as to provide funds for the second 

election. 
Hon. Compton White, page 6 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

s/ 'i{rn-J. R,King 

WnlK:N/cg 

APPROVED MAY 26, 1941 

s/ Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENiEAL 

BY 

Wm. J. R. King 

.Assistant 

Approved opinion committee 

BY Bm, Chairman