. .

THEA~TORNEYGENERAL
OF TEXAS

June 26, 1962

Honorable James T. Flynt Opinion No. ~~-1356 County Attorney WoodCounty Courthouse Re: Local option election Qultman, Texas under Art. 666-32, P.C.; questions pertaining to Dear Mr. Flgnt: the petition.

Youhave 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 Codewhich does not require exemption certificates or ;affldavits to vote, and this affidavits are not mandatory upon exempt petitioners In aliquor election.

”? Canthe Commissioners Court call aliquor 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 anymeans at their dlsposal to determine what number of voters will be required to makeupthe 25 per cent as stated In Article 666, Section 32, where the election Is called in anIncorporated city andths voting precincts of said city encompass anarea including said city and surrounding territory?

"5. Once apetition for awet-dry election has been flied with the County Clerk, can said petition be withdrawn from the county clerk’s office for the purpose of attaching affidavits of exempt voters and/or the submission of additional names on said.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?

“6e Once the County Clerk has certified the petition andthat sameIs 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 anyjustice15 precinct or incorporated city or,town therein, mayby 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) ormore, quailfied voters of any county, ’ justice’s precinct, or incorporated city or town, the County Clerk of such county shall Issue to the applicants apetition to be circulated among the qualified voters thereof for the signatures of those qualified voters in such area who desire that alocal 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 andalcoholic content shall be prohibited or legalized with the prescribed limits of such county, justice’s precinct,
or incorporated city or town. Thepetition 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 showthe date.:of Its Issue by the County Clerk and shall be serially numbered, andeach page of such petition shall bear the samedate 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 manycopies of said petition as maybe required by the applicants, andeach copy shall bear the date, number and seal oneach page as required in the orlglhal. TheCounty Clerk shall keep acopy of each such petition andarecord of the applicants therefor. Whenany 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 manyas twenty-five per cent (25%) of the qualified voters of any such county> justice’s precinct, or Incorporated city or town, together with anotation showing the residence address of each of the said signers, together with the number that appears onhis ~011 tax receipt or exemption certificate,
or asworn statement that the signer is entitled to vote without holding either apoll 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 alocal 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, andthe 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. Nosignatures 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 aduplication either of nameor of handwriting used in any other signature onthe petition, and no signature shall be counted unless the residence address of the signer is shown, or unless It Is signed exactly as the
nameof the voter appears onthe 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 apoll 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, andthe 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 sameas that applied for and set out In the petition. Nosubsequent 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."

Theaffidavits you refer to In vour first question are the affidavits of persons whohave signed,the petition whoare entitled to vote without holding either apoll tax receipt or anexemption certificate. Voters whoare exempt from paying apoll tax by
reason of being over 60years ~of'age, andwhoredida in acity of 10,000 inhabitants or more must have acurrent exemption certificate In order to vote. Art. 5.16, Election Code. Voters whoare over 60years of age, whodonot reside In acity of 10,000 inhabitants or more, are exempt from paying apoll tax anddonot need an exemption certificate in order to vote. Thus
wehave three classes of voters whomaysign alocal option petition: (a) holders of current poll tax receipts, (b) holders of current exemption certificates, and (c) those whoare exempt from paying the poll tax, andwhoare not required to hold a current exemption certificate. Whydoes Art. 666-32, P.C., require the signers of the petition whofall 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 TaxAssessor-Collector's office. What
assurance does the Clerk or Commissioners Court have that one who signs apetition whodoes 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 maybe counted, and the affidavit is the only method provided by the statute to prove upthe qualification of those voters wholive outslde acity of 10,000 inhabitants ormore ,andwhoare exempt from paying the poll tax. In answer to question No. 1, wehold that It is mandatory that the affidavits be attached to or handed in with the petition for those voters whoare exempt from paying apoll tax andwho
are not required to hold anexemption 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 Lawsin force regulating elections andafter the polls are closed proceed to count the votes andwithin twenty-four (24) hours thereafter makedue report of said election to the aforesaid Court. Theprovisions 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 60years of age whodonot reside in acity of 10,000 inhabitants ormore:,. frequently go to their polling places on election day, donot have to showan exemption certificate, and
are given aballot to markandcast; 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 knowthe voters personally, andwill be well aware of the fact that acertain person offering to vote in his precinct Is over 60years 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 and8.10, Election Code.

Art. 666-32, P.C., Art. 666-36, P.C., is concerned with the petition while applies to calling andconducting 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 aoart of the election process, and if It could be said that Art. 666,-32, P.C., which requires affidavits from exempt voters whohave 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, wehold 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 mavnot call a local ootion election uwon Its ownmotion. Since wehave held In answer to your first - question that the attachment of the affidavits of exempt voters whoare not required to hold anexemption certificate is mandatory, the signatures of such voters, without the necessary affidavits, cannot be counted. If this reduces thenumber of valid signatures below the number required byArt. 666-32, P.C., then there is noHonorable James T. Flynt, Page 6, m-1356

authority to call the election, since the petition is insufflcient

. In answer to Question No. 3, wehold that the Commissioners Court maynot call the election, unless the number of valid signatures onthe 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 awhole, If the local option election shall be county-wide, this would present noproblem. Generally speaking, there ought not to be muchof aproblem 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 acity or town, adifferent problem maybe 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, andthat no adjacent rural territory should be Included in such precincts. Therefore, in cities having apopulation of 10,000 Inhabitants or more there will be noproblem. Ourproblem comes in connection with cities andtowns with less than 10,000 Inhabitants, wherein anelection precinct mayInclude territory lying within the town andadjacent rural territory. The Commissioners Court is called upon in such
acase to determine howmanypeople voted for Governor within such
atown or small city, whenthere are nofigures available which Include only the town or city. Attorney General’s Opinion No. o-7218 holds that whenever apetition is presented to the County Clerk, hemayadopt anymeans he deems necessary andproper to determine whether or not the required number of voters have signed the same, andbywayof 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 anofficer or officers to order an election whenacertain number of quailfied voters have joined in apetition for the same, it is madethe duty of the officers to ascertain whether or not the requisite number of voters have joined in the petition andwhether they are qualified. However, the officials will be allowed to exercise their owndiscretion in this matter, provided that their decision is based upon reason andfairness, 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.)
wasdecided at atime whenthe Commissioners ,Cou~t:co~ld..bs’.the express language of Art. 666-32, P.C., call a~local option - election onIts ownmotion. Art. 666-32, P.C. This language has been deleted from Also at that time there wasnorequirement that the voters list their poll tax receipt number, exemption certificate number, or in lieu thereof sign anaffidavit that they are exempt from paying the poll tax, when.no exemption certificate Is required. Nevertheless, If apetition was presented, it wasthe duty of the Commissioners Court to determine if the required number of voters had signed. With respect to that one point, wethink the language of the Court at page 720 is still applicable here:

11

. . . !Phecon-missioners court could adopt any means It thought right and proper to ascertain

. . . whether or not 10per cent of the qualified voters

. . . had signed it.“.*...!’

Weanswer Question No. 4byholding that the Commissioners Court maydetermine by any reasonable means what number of voters will be required to constitute 25%of the voters whovoted for Governor In acity in the last preceding General Election, at which presidential electors were elected, as required by Art. 666-32, P.C.

Wehold In answer to Question No. 5, that the petitions should be complete within 30days 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:

Nosignature 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 aduplication either of nameor of handwriting used in any other signature onthe petition, andno signature shall be counted unless the residence address of the.signer is shown, or unless It is signed exactly as the nameof the voter appears onthe official copy of the current poll list or anofficial copy of the current list of exempt voters, if the signer be the holder either of apoll tax receipt or anexemption certificate. 1,

. 0

. .” &?mphasis addegHonorable James T. Flynt, Page 8, ~~-1356

In answer to Question No. 6, wehold there is anequal duty on the County Cler,k andthe&mmlssloners Co ’urt to ch&k the ‘petition,, andthe Commlasioners Court, is,‘not,bound bythe 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, 12Tex.App. 401, point page 404. That rule still applies.

. . .’

In State ex rel. Burkett v. Townof Clyde, 18S.W.2d 202 ICiv.Aoo. 1929, error ref.) the question was raised whether the county-judge could order an incorporation election for atown of less than 500 inhabitants, whenthe law required that there be
more than 500 inhabitants. TneCourt stated at page 203:

“The question naturally arises: Canthe county judge by ordering anelection where there
are fewer than the requisite number of inhabitants, thus set at naught the lawwith the effect that redress will be denied to every one aggrieved by such action? Thetest of the validity of such action, wethink, is good faith onthe part of the officer thus charged with the duty. Theaction of the officer is at all times supported by apresumption that he did what it washis duty to do. If the judge orders such anelection, 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 whenanizcorporktion petition is presented to him, stated at page 766:

“There seems to be ageneral rule of law that

“‘In passing on petitions for elections and in deciding whether or not to call anelection, the officer with whomsuch petition is filed performs a judicial andnot aministerial function.’ 29C.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 ofKCountymie to revoke anorder of election for the incorporation of atown. TheSupreme 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? Wehold that because the petition was in due and legal form in compliance with the statutory requirements, and because the respondent had ahearing onthe petition and found the statutory requirements present, and ordered the election andposted notices regulred by law, It follows that the election process was lawfully put in motion andthe County Judge could not prevent Its being carried to itsconclusion.

. . .‘I Emphasis addeg

In answer to Question No. 7, wehold that the action of the Commissioners Court, in passing on the sufficiency of the petition and calling the election, Is ajudicial function. Therefore, such Court may, during the sameterm 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 maynot set aside its order of election. Attorney General’s Opinion No. O-2577 is overruled insofar as it holds that the calling of alocal option election by the Commissioners Court is anadministrative function.

SUMMARY

It Is mandatory that the affidavits be attached
or handed.in with the petition for those voters who
are exempt from paying apoll tax andwhoare not required to hold anexemption 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 maynot call alocal option election, unless the number of valid slgnatures onthe petition meets the percentage required by Art. 666-32, P.C.Honorable James T. Flynt, Page 10, ~~-13%

TheCommissioners Court maydetermine by any reasonable means what number of voters will be required to constitute 25%of the voters whovoted for Governor In acity in the last preceding General Election, at which presidential electors
were elected, as required by Art. 666-32, P.C.

Thepetitions should be completed within,30 days after their Issuance andcannot thereafter be withdrawn for the purpose of attaching affidavits of exempt voters or the submission of additional names.
There is anequal duty onthe County Clerk andthe Commissioners Court to check the petition, andthe Commissioners Court is not bound by the certification of the County Clerk.

Theaction of the Commissioners Court in passing onthe sufficiency of the petition and calling the election is ajudicial function. Such Court may, at the sameterm 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 maynot set aside its order of election.

Yours very truly,

WILLWILSON Attornes General of Texas

By 4%++=- Riley Eugene Fletcher pssistant

REF:ca
APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Elmer McVey Ernest Fortenberry Iola Wilcox Frank Booth REVIEWED

FORTHEATTORNEY GENERAL BY: Leonard Passmore