HonorableDonald E. Short Opinion NO. c-263

County Attorney Wichita County Courthouse He: Construction of Art. 666-32, Wichita Falls, Texas V.P.C. in referenceto a petition for a local option election in the City of Dear Mr. Short: PleasantValley.

In your letter of March 20, 1964, you asked for a constructionof Article 666-32, Vernon's Penal Code, in antlclpatlon of an Incorporatedcityls local option election to prohibit the sale of alohollcbeverages. The pertinentpart of the statute is:

When any such petition so, issued shall*wi&ln thirty (30) days after the date of Issue be filed with the Clerk of the Commissioners Court bearing the aotual signatures of as many as twenty-five per cent (25%) of the qualifiedvoters of any such county, justice's precinct, or incorporatedcity or town, together with a notation showing the residence address of each of the said signers, together with the number that appears on his poll tax receipt or exemptioncertificate,or a sworn statement that the signer is entitled to vote without holding either a poll tax receipt or an exemption certificate,taking the votes for Governorat the last precedingGeneral Election at which presidentialelectorswere elected as e basis for determlnln

session shall order a local option electionto be held u on the Issue set out in such petition

. . . .” PEmphasls Supplied) The facts as you state in your letter are that the City of Plea-s&tYGl,eg was Incorporatedsubsequ,ent o the last preceding general electionat which pres’lheri%QL %%Wm?a were elected. It will thereforebe difficult to determine the 25% requirement. -1257-- .

HonorableDonald E. Short, Page 2 (C-263 )

If the law directs an officer or officers to order an electionwhen a certain number of qualifiedvoters have joined in a petition, It Is the duty of the officers to ascertainwhether the requisitenumber of voters have joined In the petition and whether they are qualified. However, the officialswill be allowed to exercise their own discretion in this matter, provided that their decision Is based on reason and fairnessand is not Impelledby fraud or caprice. 21 Tex.Jur.2d 285. The Montgomery County Clerk was faced with a similar problem In 1946 in that the City of Conroe wanted to petition for a local option election,and the two voting boxes used for general elections extendedbeyond the city limits. The result was that there was no means of detenninlng how many of the votes cast at the last election for Governor,at which time PresidentialElectorswere elected,were actually voters presidingwithin the city limits of Conroe. On that question this office held, in Attorney General'sOpinion No. o-7218, 1946, that the Cotinty Clerk, whenever a petition called for under Article 666-32 Is presented to him, may adopt any means he deems necessary and proper to determinewhether or not the signers of such a petition are qualifiedvoters of the county or polltlcal subdivisionand to ascertain the number of qualifiedvoters signing the same. The earlier case Of Akersv. Remington, 115 S.W.28 71k (Tex.Civ 1938 error dism A& 193gi ae ln acoo&.and AttorneyGeneral'sOpinion ro. OSince the yardstick for deteklnlng qualifiedvotersprescribedby the statute cannot be calculated,It appears that under the above authority,the County Clerk has the authority to adopt fair and proper means to ascertain the qualifications of petitioners. E%y way of suggestiononly, we point out that 25s of the number of Inhabitantsof the town of PleasantValley before Its incorporationthat now lies within the boundariesof the present \ City of PleansantValley who voted for Governor In the last presidentialelectionmight be an equitablebasis for determlnlng the sufficiencyof the petition. SUMMARY Under the present circumstances, the County Clerk of Wichita County may adopt any means he deems necessary and proper to determine whether or not the signers of a petition for a local option election In PleasantValley are qualifiedvoters under Art. 666-32, V.P.C.

-1258-b .

-

HonorableDonald E. Short, Page 3 (c-263 )

Yours very truly, WAGGONER CARR AttorneyGeneral of Texas

AssistantAttorney General ESC:ls:br APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Norman V. Suarez Linward Shlvers Charles B. Swanner APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

- 1259-