Honorable ComptonWhite

County Auditor Fre’estone

County Fairfield, Texas

Dear Sir: Opinion No. O-3473 Re: Whether the commissioners’ court catilegally order aloc.5~1 option election to be he,ldJune 28, 1941, date of the special senatorial election,with the same election judgesand clerks; and another related question.

Your letter of April 2$th, requesting an opinion of this Department, reads as follows:

“A petitionwill be presented to the commissioners’court of Freestone County on May 12th, 1941, to order a beer election In’FreestoneCounty. If this election Is ordered it would necessarily have to be held by June 2nd, 1941. CciuLtl ithe court legallypass thispetition to June 9th and order the electionheld June.28th, the date set for the electionof a United States Senator, using the same election judgesand clerks to hold both elections.

In our countybudget for the year 1941 I caloulated and the commlssionersf in 

### 1941. cmrt approved funds for. holding one election Would itbe within mypower in enforoing compliance with the county budget to require the oommisaionerslcourt to declare an emergency to payfor the beer electi;;el;othe event it Is held before the Senatorial election? the fact that the senatorialelectionhas already been ordered I sm taking the position that funds set up in ourbudget for election expense are already obligated and that any other charge against ourbudget for eleotion will have to be classed
as an emergency by the commissioners’court. to the above questionswill be appreciated.” An early reply

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

*The ‘ommissioners Court ofeach county in the State upon its

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

ownmotion may order an election to be held by the qualified voters in said county, to determinewhether or not the sale of liquors shallbe prohibited or legalized in such county, and such Court shall order a local option electionwhenever petitioned to do so by an many as ten (10)per cent of the qualifiedvoters of said county, or of any justiceprecinct, city or town, taking the votes for Governor at the last preceding general electionas the basis for determining the qualifiedvoters in any such county, or political subdivision. After the first local option electionheld as provided In this Act, in any county9 justf,ce precinct, incorporated town,
or city, no subsequent electionupon the same issue in the
samepolitical subdivision shallbe held within one (1)year from the date of the preceding local option election in said oountys or saidpolitical subdivision of said county."

Artfole 666-33 of said Code provides:

"When the CommissionersCourt 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 countyupon 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

shallbe held to be prima facie evidence that all the provisions necessary to give It validity or to clothe the Court with jurisdictionto make it valid, have been duly oomplied with, provided that said Court shall appoint such officers to hold such elections as now required tohold general elections."
Article 666-34 of the Code provides that the election shall be held and the return-thereofmade inconformity with the provisions of the General Laws of the State, and by the election officers appointed and qualifiedunder 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 officersholding 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 electionwhere not inconsistent herewith."Hon, Compton White, page 3, O-3473

Article 666-40 of the Code provides that the Commissionn&f Courtupon petition asprovided shall order as>provided in.. Article 666-32, supra, local option elections for the purpose of determiningwhether alcoholicbeverages of the various types and alcoholic oontents shallbe legalized or prohibited.

Under Chapter 12, Article 3088, Vernon'sAnnotated civil Statutes, it is provided that every law regulating or in any mahner governing elections or the holding of primaries in this State shallbe held to apply to each electfon of a candidate for
a United States Senator so long as they.arenot in conflict with the United States Constitutionor 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, expresslydesignates 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 expresslyprovided that every law regulating or in any manner governing elections in this State shall apply. 

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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 electionmay be held on the same day at which ageneral election is held. See Opinion No. O-2853, yo,lume2, p. 330, fieportsof the Attorney General, 1940.

As to the conduet of thetwo elections on the same day, we run into some difficulty. We held in arecent opinion, O3438, approvedMay 21st, 1941$ a copy of which is hereto attached, that the forthcoming senatorialelection to fill a vacancy,being a special election, theproviso 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 controlsbut is superseded by Article 2943,Vernon's Annotated civil Statutes, with the amounts fixed in the later statute controlling.
Since the 'electionjudgesand cler$s to be appointedfor the special senatorialelection are ssparate and distinct from those authorized to conduct general elections, local option elections and primary elections as regularly appointedunder Articles 2937 and 2938, Revised Civil Statutes, 1925, the canduct of both electionsby the same officials, should they be held on the same day, is not authorized. It will furtherbeHon. Compton Uhite,page 4, O-3473

noted that not only the presfding and assistant judges,but the two clerks are to be appointedby the commissioners court under the controllingprovision.

Shouldboth a local option election and the forthcoming senatorial or special electionbe held on the sgme day, itbeing
our view that separate election judges and clerks to conduct the electionswould be required, it naturally follows that sep'arate

and distinctballot boxes shouldbe used.

The Texas Liquor Control Act or the abovementioned statuges adonot require the commissioners'court to order the election the same day the required petition is presented. #whenthe court acts upon saidpetition, 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, (Article666-33,

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

. . . The Court shall have authority to make such changes in thebudget as in their judgmentthe law warrants and the interest of the taxpayers demand. When the budget has been finally approvedby the Commissioners' Court, the budget, as a:qproved

by the Court shallbe filed with the Clerk of the 'CountyCourt, and taxes levied only in accordance therewith, and no expendituresof the funds of the county shall thereafter be made except in strict compliancewith the budget as adopted by the Court. 'Exceptthat emergency expendftures,in case of grave publfc necessity, tomeet unusual and unforeseen condftionswhich could not, by reasonably dilfgent thought and attention,have been included in the originalbudget, may from time to tSmebe authorfzedby the Court as amendments to the originalbudget. In all. cases where such amendment to the originalbudget ismade, a copy of the order of the Court amendIng the budget shallbe filedwith the Clerk of-the County Court, and attached to the budget originallyadopted."

Article 689a-20,Vernones Civil Statutes, ;provides: "Nothing contained in this Act shall be construed as precluding the Legislature frommaking changes in the budget for State purposes or prevent the County Commissioners'Court from making changes in thebudget for countypurposes or-,prevent the governingbody'of any incorporatedcity or town from making changes in the budget for city Furposes, or prevent the trustees or other school governing body from making changes inHon. Compton White, page 5, O-3473

the budgeta for schoolpurposes; and the duties requiredby virtue of this Act of atate, County, City and School Officers
or Representatives shallbe performed for the compensationnow providedby law to be paid said Officers, respectively.”

Relative to ‘yoursecond question, we held in our opinionNo.& 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 questionedby the auditor except only where the question isdebatable or where the existence of an emergency is questionable.
According to your letter sufficient funda for holding an electionwere set up in the 1941budget. No importancecan be attached to th.efact that at the time suoh funds were setup the commissioners’court of your,county possibly anticipateda 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 emergencyunder the budget law with funds on hand and previously setup therein. The ‘obligationof such funds is notdetermined by thepriority of the order calling an electionbut by the date upon which an election is first held and expenses incurred therefore

As to your first question, it is the opinionof this .Bepartment that it iswithin 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 authorizedunder the law and is orderedwithin a reasonable time after the petition is presented containing the requisitenumber of qualified voters. Should the two elections be soheld, the officialsgenerally 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 andt,woclerksby the commissionerstcourt. Answering your secondquestion, it is our opinion that under the factspresented, the county auditor could not require the commissioners’ court to declare an emergency topay for a local option election validlyheld previous to the special senatorial election called and set for June 28, 1941. However, the commissioners' courtwouldbe 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,

ATTORNEYGENERAL 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