. . 

THEA~TORNEYGENERAL 

OF TEXAS 

June 26, 1962 

Honorable James T. Flynt Opinion No. ~~-1356 

County Attorney 

Wood County Courthouse Re: Local option election 

Qultman, Texas under Art. 666-32, P.C.; 

questions pertaining to 

Dear Mr. Flgnt: the petition. 

You have asked the following questions pertaining to a 

local optlon.election: 

“1 . If affidavits In connection with signing 

of petitions In wet-dry elections are not submitted 

with the petition, Is such requirement mandatory or 

directory upon the Commissioners’ Court? 

“2. Is Article 666, Sec. 32, which states 

that this article in regards to liquor elections 

shall apply except where In conflict with the 

Texas Election Code, than In conflict with the 

Texas Election Code which does not require 

exemption certificates or ;affldavits to vote, 

and this affidavits are not mandatory upon exempt 

petitioners In a liquor election. 

” ? Can the Commissioners Court call a liquor 

electl:n at their discretion upon petitioned In 

proper form except for attached affidavits of exempt 

voters? 

"4. Does the Commissioners’ Court have 

authority to determine by any means at their dlsposal to determine what number of voters will be 

required to make up the 25 per cent as stated In 

Article 666, Section 32, where the election Is called 

in an Incorporated city and ths voting precincts of 

said city encompass an area including said city and 

surrounding territory? 

"5. Once a petition for a wet-dry election has 

been flied with the County Clerk, can said petition 

be withdrawn from the county clerk’s office for the 

purpose of attaching affidavits of exempt voters 

and/or the submission of additional names on said 
. . 

Honorable James T. Flynt, Page 2, ~~-1356 

petition If such Is prior to the return date on 

the face of said petition? 

“6 e Once the County Clerk has certified the 

petition and that same Is sufficient, is such 

certification binding upon the Commlssi.onert$ 

Court even though the requirements of Art. 666, 

Sec. 32, reqlllrlng affidavits hasn’t been met? 

“7. Once the Commissioners Court orders an 

election as per Art. 666, Sec. 33, can said order 

be set aside?” 

Article 666-32, Penal Code, reads as follows: 

“The Commissioners Court of each county In 

the State, upon proper petition, shall order an 

electloon wherein the qualified voters of such 

county, or of any justice15 precinct or incorporated city or ,town therein, may by the exercise 

of local option determine whether or not the 

sale of alcoholic beverages of one (1) or more 

of the various types and alcoholic content shall 

be prohibited or legalized within the prescribed 

limits of such county, justice’s precinct or 

Incorporated city or town. 

“Upon the written application of any ten 

(10) or more, quailfied voters of any county, ’ 

justice’s precinct, or incorporated city or town, 

the County Clerk of such county shall Issue to 

the applicants a petition to be circulated among 

the qualified voters thereof for the signatures 

of those qualified voters in such area who 

desire that a local option election be called 

therein for the purpose of determining whether 

the sale of alcoholic beverages of one (1) or 

more of the various types and alcoholic content 

shall be prohibited or legalized with the prescribed limits of such county, justice’s precinct, 

or incorporated city or town. The petition so 

issued shall clearly state the issue to be voted 

upon in such election, which shall be the same 

issue as that set out in the application; eaCh 

such petition shall show the date.:of Its Issue 

by the County Clerk and shall be serially 

numbered, and each page of such petition shall 

bear the same date and serial number, and shall 
. . 

Honorable James T. Flynt, Page 3, ~~-1.356 

bear the seal of the County Clerk. Ihe County 

Clerk shall deliver as many copies of said 

petition as may be required by the applicants, 

and each copy shall bear the date, number and 

seal on each page as required in the orlglhal. 

The County Clerk shall keep a copy of each such 

petition and a record of the applicants therefor. 

When any such petition so issued shall within 

thirty (30) days after the date of Issue be filed 

with the Clerk of the Commissioners Court bearing 

the actual signatures of as many as twenty-five 

per cent (25%) of the qualified voters of any 

such county> justice’s precinct, or Incorporated 

city or town, together with a notation showing 

the residence address of each of the said 

signers, together with the number that appears 

on his ~011 tax receipt or exemption certificate, 

or a sworn statement that the signer is entitled 

to vote without holding either a poll tax receipt 

or an exemotion certificate, taking the votes for 

Governor at the last preceding General Election 

at which presidential electors were elected as 

the basis for determining the qualified voters In 

any such county9 justice’s precinct or Incorporated 

city or town, It is hereby required that the 

Commissioners Court at Its next regular session 

shall order a local option election to be held upon 

the Issue set out in such petition. It shall be the 

duty of the County Clerk to check the names’of the 

signers of any such petition, and the voting precincts In which they reside, to determine whether 

or not the signers of such petition are In fact 

qualified voters in such county, justice’s precinct, or incorporated city or town at the time 

such petition is presented and to certify to the 

Commissioners Court the number of qualified voters 

signing such petition. No signatures shall be 

counted, either by the County Clerk or the 

Commissioners Court, where.there is reason to 

believe It Is not the actual signature of’the 

purported signer or that It is a duplication either 

of name or of handwriting used in any other signature on the petition, and no signature shall be 

counted unless the residence address of the signer 

is shown, or unless It Is signed exactly as the 

name of the voter appears on the official copy of 

the current poll list or an official copy of the 

current List of exempt voters, if the signer be 

the holder either of a poll tax receipt or an 

exemption certificate. 
. . 

Honorable James T. Flynt, Page 4, ~~-1.356: 

"The minutes of the Commissioners Court shall 

record the date any such petition is presented, the 

names of the signers thereof, and the action taken 

with relation to the same. In any election ordered 

by the Commissioners Court the issue ordered to 

appear on the ballot shall be the same as that 

applied for and set out In the petition. No subsequent election upon the same Issue shall be held 

within one (1) year from the date of the last 

preceding local option election in any county, 

justice's precinct, 

pmphasis addeg 

or incorporated city or town." 

The affidavits you refer to In vour first question are the 

affidavits of persons who have signed,the petition who are entitled 

to vote without holding either a poll tax receipt or an exemption 

certificate. Voters who are exempt from paying a poll tax by 

reason of being over 60 years ~of' age, and who redida in a city 

of 10,000 inhabitants or more must have a current exemption 

certificate In order to vote. Art. 5.16, Election Code. Voters 

who are over 60 years of age, who do not reside In a city of 

10,000 inhabitants or more, are exempt from paying a poll tax 

and do not need an exemption certificate in order to vote. Thus 

we have three classes of voters who may sign a local option 

petition: (a) holders of current poll tax receipts, (b) holders 

of current exemption certificates, and (c) those who are exempt 

from paying the poll tax, and who are not required to hold a 

current exemption certificate. Why does Art. 666-32, P.C., require 

the signers of the petition who fall in categories (a) and (b) 

above to note the number that appears on their poll tax receipt 

or exemption certificate? It is obvious that the purpose of this 

requirement is to assist the County Clerk and the Commissioners 

Court in determining whether each signer of the petition is a 

qualified voter, making it possible to verify that fact by checking the records in the Tax Assessor-Collector's office. What 

assurance does the Clerk or Commissioners Court have that one who 

signs a petition who does not 

has passed his 60th birthday, 

fall In either category (a) or (b) 

so as to qualify under category 

(c)? Only the signatures of qualified voters may be counted, and 

the affidavit is the only method provided by the statute to prove 

up the qualification of those voters who live outslde a city of 

10,000 inhabitants or more ,and who are exempt from paying the poll 

tax. In answer to question No. 1, we hold that It is mandatory 

that the affidavits be attached to or handed in with the petition 

for those voters who are exempt from paying a poll tax and who 

are not required to hold an exemption certificate, in order that 

their signatures be counted. 
Honorable James T. Flynt, Page 5, ~~-1356 

Art. 666-36, P.C., provides: 

"The officers holding such election 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 twenty-four (24) hours 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." 

In your second question you are concerned about the fact that 

voters over 60 years of age who do not reside in a city of 10,000 

inhabitants or more:,. frequently go to their polling places on 

election day, do not have to show an exemption certificate, and 

are given a ballot to mark and cast; whereas under Art, 666-32, 

P.C., their affidavits are required in order for their signatures 

to be counted. In most election precincts in rural areas and in 

smaller towns the election judge will know the voters personally, 

and will be well aware of the fact that a certain person offering 

to vote in his precinct Is over 60 years of age. This accounts 

for the election judge not requiring any affidavit from the voter. 

But If there were any doubt in the election judge's mind about 

the voter's eligibility to vote, such election judge could require 

not only the oath of the voter, but of some other well known 

resident of the precinct as well. Arts. 8.09 and 8.10, Election 

Code. 

Art. 666-32, P.C., 

Art. 666-36, P.C., 

is concerned with the petition while 

applies to calling and conducting the election. 

There Is no conflict with the Election Code and Art. 666-32, P.C.- 

But if It could be said that the petition !,s a oart of the election 

process, and if It could be said that Art. 666,-32, P.C., which 

requires affidavits from exempt voters who have no exemption 

certificate is in conflict with the Election Code, then Art. 

666-36, P.C., provides that the provisions of the Texas Liquor 

Control Act governing local option elections would be the appllcable law to follow. 

666-32, P.C., 

In answer to Question No. 2, we hold Art. 

is the statute to follow In determining whether the 

petition for the local option election Is In proper form. 

Smith v. Counts, 282 S.W.2d 422 (Civ.App. 1955) holds that 

the Commissioners Court mav not call a local ootion election uwon 

Its own motion. Since we have held In answer to your first - 

question that the attachment of the affidavits of exempt voters 

who are not required to hold an exemption certificate is mandatory, 

the signatures of such voters, without the necessary affidavits, 

cannot be counted. If this reduces the number of valid signatures 

below the number required by Art. 666-32, P.C., then there is no 
Honorable James T. Flynt, Page 6, m-1356 

authority to call the election, since the petition is insufflcient . In answer to Question No. 3, we hold that the Commissioners Court may not call the election, unless the number of 

valid signatures on the petition meets the percentage required 

by Art. 666-32, P.C. 

In determining the number of signatures required on the 

petition, Art. 666-32, P.C., requires that the Commissioners 

Court use the number of votes cast..for Governor at the last 

preceding General Election, at which presidential electors were 

elected. For the county as a whole, If the local option election 

shall be county-wide, this would present no problem. Generally 

speaking, there ought not to be much of a problem In the ordinary 

case of a justice precinct, since election precincts generally 

conform to the boundaries of justice precincts, that Is, within 

any one justice precinct there are usually one, two, three or 

more whole election precincts. In the case of a city or town, 

a different problem may be presented. Attorney General’s Opinion 

No. S-27 holds that In cities with 10,000 Inhabitants or more 

every ward of such cities shall constitute en electyon precinct, 

with the exception af wards in which more than 2,000 votes were 

cast In the last city election, and that no adjacent rural 

territory should be Included in such precincts. Therefore, in 

cities having a population of 10,000 Inhabitants or more there 

will be no problem. Our problem comes in connection with cities 

and towns with less than 10,000 Inhabitants, wherein an election 

precinct may Include territory lying within the town and adjacent 

rural territory. The Commissioners Court is called upon in such 

a case to determine how many people voted for Governor within such 

a town or small city, when there are no figures available which 

Include only the town or city. Attorney General’s Opinion No. 

o-7218 holds that whenever a petition is presented to the County 

Clerk, he may adopt any means he deems necessary and proper to 

determine whether or not the required number of voters have 

signed the same, and by way of suggestion offers one possible 

solution to the problem. 

21 Texas Jurisprudence 2d, Elections, Sec. 53, page 285, 

reads in part as follows: 

“If the law directs an officer or officers 

to order an election when a certain number of 

quailfied voters have joined in a petition for 

the same, it is made the duty of the officers to 

ascertain whether or not the requisite number of 

voters have joined in the petition and whether 

they are qualified. However, the officials will 

be allowed to exercise their own discretion in 

this matter, provided that their decision is based 

upon reason and fairness, and Is not Impelled by 

fraud or caprice.” 
Honorable James T. Flynt, Page 7, W-1356 

Akers v. Remington, 115 S.W.2d 714 (Civ,App. 1938; error dism.) 

was decided at a time when the Commissioners ,Cou~t:co~ld..bs’.the 

express language of Art. 666-32, P.C., call a~ local option - 

election on Its own motion. 

Art. 666-32, P.C. 

This language has been deleted from 

Also at that time there was no requirement 

that the voters list their poll tax receipt number, exemption 

certificate number, or in lieu thereof sign an affidavit that 

they are exempt from paying the poll tax, when. no exemption 

certificate Is required. Nevertheless, If a petition was presented, it was the duty of the Commissioners Court to determine 

if the required number of voters had signed. With respect to 

that one point, we think the language of the Court at page 720 

is still applicable here: 

11 

. . . !Phe con-missioners court could adopt any 

means It thought right and proper to ascertain . . . 

whether or not 10 per cent of the qualified voters 

. . . had signed it.“.*...!’ 

We answer Question No. 4 by holding that the Commissioners Court 

may determine by any reasonable means what number of voters will 

be required to constitute 25% of the voters who voted for Governor 

In a city in the last preceding General Election, at which 

presidential electors were elected, as required by Art. 666-32, 

P.C. 

We hold In answer to Question No. 5, that the petitions 

should be complete within 30 days after their Issuance and cannot 

thereafter be withdrawnfor the purpose of attaching affidavits 

of exempt voters or the submission of:~additional~names. Attorney 

General’s Opinion Wo. MS-261. 

Art. 666-32, P.C., provides in part: 

No signature shall be counted, either 

a the’&uAty Clerk or the Commissioners Court, 

where there is reason to believe it is not the 

actual signature of the purported signer or that 

it is a duplication either of name or of handwriting used in any other signature on the petition, and no signature shall be counted unless 

the residence address of the.signer is shown, or 

unless It is signed exactly as the name of the 

voter appears on the official copy of the current 

poll list or an official copy of the current list 

of exempt voters, if the signer be the holder 

either of a poll tax receipt or an exemption 

certificate. 

1, 

. 0 . . ” &?mphasis addeg 
Honorable James T. Flynt, Page 8, ~~-1356 

In answer to Question No. 6, we hold there is an equal duty on 

the County Cler,k and the&mmlssloners Co’urt to ch&k the ‘petition,, and the Commlasioners Court, is, ‘not, bound by the certiflcation of the County Clerk. 

In Powell v. Bond, 150 S.W.2d 337 (Clv.App. 1941) it was 

held at page 340: 

I, Under the local option laws previously 

in forEe’a;d effect, it was uniformly held that 

‘It Is the pe,tltlon that confers upon the Commissioners’ Court the jurisdiction to order the election, 1 Prather v. State, 12 Tex.App. 401, point 

page 404. That rule still applies. . . .’ 

In State ex rel. Burkett v. Town of Clyde, 18 S.W.2d 202 

ICiv.Aoo. 1929, error ref.) the question was raised whether the 

county-judge could order an incorporation election for a town of 

less than 500 inhabitants, when the law required that there be 

more than 500 inhabitants. Tne Court stated at page 203: 

“The question naturally arises: Can the 

county judge by ordering an election where there 

are fewer than the requisite number of inhabitants, 

thus set at naught the law with the effect that 

redress will be denied to every one aggrieved by 

such action? The test of the validity of such 

action, we think, is good faith on the part of the 

officer thus charged with the duty. The action of 

the officer is at all times supported by a presumption that he did what it was his duty to do. If the 

judge orders such an election, knowing or having 

good reason to believe that there does not exist 

the requisite number of inhabitants, his act in 

doing,,so would> no doubt, be held to be fradulent. 

. * . 

In City of El Paso v. Tuck, 282 S.W.2d 764 (C.lv.App. 1955, 

error ref. n.r.e. J, th court in discussing the duty of the 

County Judge when an izcorporktion petition is presented to him, 

stated at page 766: 

“There seems to be a general rule of law that 

“‘In passing on petitions for elections and in 

deciding whether or not to call an election, the 

officer with whom such petition is filed performs a 

judicial and not a ministerial function.’ 29 C.J.S., 

Elections, Sec. 6gr p- 92.” 
. ‘ 

Honorable James T. Flynt, Page 9, W-1356 

Perkins v. Ingalsbe, County Judue, Tex . 347 

S.W.2d 926 (1961) concerned the power of KCountymie to 

revoke an order of election for the incorporation of a town. 

The Supreme Court of Texas stated at page 929: 

“The first question to be answered is: Did 

the County Judge have the power to revoke his 

election order and thus stop the election, so 

as to prevent those residents of Impact from 

expressing their preferences as to whether or 

not the area should be incorporated? We hold that 

because the petition was in due and legal form in 

compliance with the statutory requirements, and 

because the respondent had a hearing on the petition and found the statutory requirements present, 

and ordered the election and posted notices regulred by law, It follows that the election 

process was lawfully put in motion and the County 

Judge could not prevent Its being carried to itsconclusion. . . .‘I Emphasis addeg 

In answer to Question No. 7, we hold that the action of the 

Commissioners Court, in passing on the sufficiency of the petition 

and calling the election, Is a judicial function. Therefore, such 

Court may, during the same term of court at which the order calling the election was issued, set aside its previous order. After 

the term of court during which the.,order was signed has expired, 

the Commissioners Court may not set aside its order of election. 

Attorney General’s Opinion No. O-2577 is overruled insofar as it 

holds that the calling of a local option election by the Commissioners Court is an administrative function. 

SUMMARY 

It Is mandatory that the affidavits be attached 

or handed.in with the petition for those voters who 

are exempt from paying a poll tax and who are not 

required to hold an exemption certificate, in order 

that their signatures be counted. Art. 666-32, P.C. 

Art. 666-32, P.C., is the applicable statute 

to follow In determining whether the petition for 

the local option election is In proper form. There 

IS no conflict between Art. 666-32, P.C., and the 

Election Code. Art. 666-36, P.C. 

The Commisalonecs Court may not call a local 

option election, unless the number of valid slgnatures on the petition meets the percentage required by Art. 666-32, P.C. 
Honorable James T. Flynt, Page 10, ~~-13% 

The Commissioners Court may determine by any 

reasonable means what number of voters will be required to constitute 25% of the voters who voted 

for Governor In a city in the last preceding 

General Election, at which presidential electors 

were elected, as required by Art. 666-32, P.C. 

The petitions should be completed within,30 

days after their Issuance and cannot thereafter 

be withdrawn for the purpose of attaching 

affidavits of exempt voters or the submission 

of additional names. 

There is an equal duty on the County Clerk 

and the Commissioners Court to check the petition, 

and the Commissioners Court is not bound by the 

certification of the County Clerk. 

The action of the Commissioners Court in 

passing on the sufficiency of the petition and 

calling the election is a judicial function. 

Such Court may, at the same term of court during 

which the order calling the election was issued, 

set aside its previous order. After the term 

of court during which the order was signed has 

expired, the Commissioners Court may not set 

aside its order of election. 

Yours very truly, 

WILL WILSON 

Attornes General of Texas 

By 4%++=- 

Riley Eugene Fletcher 

pssistant 

REF: ca 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Elmer McVey 

Ernest Fortenberry 

Iola Wilcox 

Frank Booth 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore