THE ATTORNEY GENEZUE OF TEXAS

Honorable Oscar William Loyd, II Opinion No. JM-1133 Criminal District Attorney P. 0. Box 216 Re: Certification of a Gilmer, Texas 75644 petition and financing of a local option election under theAlcoholic Beverage Code (RQ-1865)
DearMr. Loyd:
You ask two questions about local option liquor elections. Your first question concerns the interpretation of section 251.10 of theAlcoholic Beverage Code (the code). That section prescribes the requirements for counting signatures on a petition requesting a local option liquor election. Subsection (b)of that section provides:

(b) No sianature mav be counted, either by the registrar or commissioners court, where there isreason tobelieve that:

(1) it isnot the actual signature of thepurported signer: (2) the voter registration certificate number isnot correct; (3) the voter registration certificate number isnot inthe actual handwriting of the signer: (4) it isadualication either of a fl other sianature on the oetition; (5) the residence address of the signer is not correct or is not in the actual handwriting of the signer; or (6) the name of thevoter is not signed exactly as it appears on the

p. 5962Honorable Oscar William Loyd, II -Page 2 (JM-1133)

official copy of the current list of registered voters for thevoting year in which the petition is issued. (Emphasis added.) Specifically, you askwhether the language underlined above requires that each entry that appears toviolate subsection (b)(4) isto be disregarded indetermining the sufficiency of the petition signatures or whether the first entry in a questionable series may be counted as avalid signature. You offer the example ofa voter who signs his name on a petition more than once, and askwhether the first entry is a "duplication."
Inan eailier opinion of this office, theprovisions of section 251.10(b)(6) were determined tobe unambiguous and mandatory. Attorney General Opinion JM-501 (1986). The registrar ofvoters has no authority towaive the signature requirements of that subsection. Id. By its terms, subsection (b)states that "BQ signature may be counted" under certain circumstances. We donotbelieve that the language prohibiting duplicative names orhandwriting can reasonably be construed to allow the counting of the "original*' or first name in a series and to disallow the subsequent entries. The plain meaning of subsection (b)(4) is that each name that appears more than once and each name that appears to be written in the samehandwriting is void. Several definitions that support our reading of subsection (b)(4)are found inWebster's Ninth New Collegiate Dictionary, which defines "duplicate" as:

being the same as another

. . .either of two things exactly alike and [usually] produced at the same time orby the same process

. . .one that resembles or corresponds to another.

Thus, it isour opinion that all of the signatures or names ina series that appear toviolate subsection (b)(4)are to be disregarded inverifying apetition regardless of the order inwhich they may appear on thepetition.
Your second question relates to the payment of expenses inan election held pursuant to the code. Section 251.40 provides that county expense is limited to the holding of only certain local option liquor elections per year. It also authorizes the county to obtain reimbursement for election costs in cities or towns within the county.

P. 5963Honorable Oscar William Loyd, II -Page 3 (JM-1133)

Section 251.41 requires adeposit before the issuance of a petition for elections when the county, isnot required to pay the expenses under section 251.40. In its section 251.40 provides: entirety,

(a) Subject to the limitations set forth inSubsections (b)and (c)of this section, the county shall pay the expense ofholding a local option election authorized by this code inthe county, justice precinct, or incorporated city or town inthat county, provided, however, that ifan election isto be held onlywithin the corporate limits of a city or town locatedwholly within the county and not elsewhere, the county may require incorporated city or town to reimburse county for all or part of the expenses holding the local option election. (b) County expense is limited to holding of one election in each of political subdivisions in Subsection (a) this section ina one-year period where intent of the election isto legalize - ^ - . _. . the the of

the the of the the Sale or alcOnollC beverages. County expense is limited to theholding of one election in each of thepolitical subdivisions in Subsection (a) of this section in a one-year period where the intent of the election isto prohibit the sale ofalcoholic beverages. (c) All other local option elections shall be paid by the county from funds derived by the county as prescribed in Section 251.41 of this code. Section 251.41 provides:

(a) Ifunder Section 251.40 of this code the county isnot required topay the cost of the election, the county clerk shall adeposit before the require issuance of a petition fora local option election. (b) The deposit must be inthe form of a cashier's check inthe total amount of 25 cents per voter listed on the current list of registered voters residing in the county,

p. 5964Honorable Oscar William Loyd, II -Page 4 (JM-1133)

justice precinct, or incorporated city or townwhere the election istobeheld. (c) Themoney received shall be deposited inthe county's general fund. No refund may be made to the applicants regardless ofwhether the petition is returned to the county clerk or the election isordered. (d) The county clerk may not issue a petition to the applicants unless the deposit ismade, ifa deposit is required by this code. (e) Aviolation of Subsection (d)of this section is a misdemeanor punishable by a fine of not less than $200nor more than $500, or confinement in the county jail for notmore than 30days, orboth. Specifically, you inquire about the 25 cent per voter deposit requirement prescribed by section 251.41(b). You askwhat the legislative intentwas inrequiring the deposit andwhether the county must hold an election forwhich the deposit is inadequate.1 This deposit provision was added to the statute in 1967. The documents relating to the legislation which established the deposit requirement did not reveal the logic used by the legislature in selecting the 25 cent per voter amount. Subsection (c) of that section provides that the deposit will beplaced inthe county's general fund; no refund isallowed whether the petition is returned or an election isheld. The legislature must have envisioned the county receiving deposits, on occasion, that would not be expended in aparticular election. The section does not provide for the collection of additional funds from the petitioner after the actual election expenses have been incurred. Subsection (a) of section 251.41 makes the deposit a condition precedent to the issuance of apetition, not the ordering of the election.

1. Youdonot inquire about, nor dowe address, any question as to the constitutionality of the 25 cent per voter deposit requirement.

Pm 5965Honorable Oscar William boyd, II -Page 5 (JM-1133)

We think theprovisions contemplate that a fundwill be maintained from deposits collected and that the costs of elections for which deposits are required under section 251.41 shall bepaid from that fund (except to the extent reimbursement of. expenses required by the county under section 251.40(a) covers ,said costs)

. Thus, it

_ is irrelevant under the statute ifthe deposit foraparticular election does not cover its cost, since the statute contemplates that the costs will be paid not from that particular deposit but rather from the fund accumulated from all deposits past and future. Ifthe fund is inadequate to pay foran election, the.costs ofwhich are required by the statute tobepaid from the fund, thenwe think the county must wait until the fund isreplenished by future deposits to recoup any county money proper which had to be spent as a consequence of the fund's depletion. Whether the applicable provisions should be amended to provide for increased deposits so that anadequate fundwill bemaintained is of course amatter for the legislature.
In our opinion, a county may not refuse to hold an election pursuant to sections 251.40 and 251.41 merely because the 25 centper voter deposit required for the petition for that election mayprove insufficient to cover the cost of the election.

SUMMARY All signatures or names ina series that appear to violate Alcoholic Beverage Code section 251.10(b)(4) are to be disregarded inverifying a petition for a local option liquor election.
A county may not refuse to hold election pursuant to sections 251.40 a:: 251.41 of theAlcoholic Beverage Code because the 25 centpervoter deposit is insufficient to offset the county's expenses inconducting the election. 

# Jz&?&G

Attorney General ofTexas

p. 5966Honorable Oscar William Loyd, II -Page 6 (JM-1133)

MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Karen C.Gladney Assistant Attorney General

Pa 5967