Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 3,2004
The Honorable Chris Harris Opinion No. GA-01 60
Chair, Committee on Administration
Texas State Senate Re: Determination of the minimum number of
P-0. Box 12068 signatures required on a petition for a local
Austin, Texas 787 1 l-0268 option election under the Alcoholic Beverage
Code (RQ-0107-GA)
Dear Senator Harris:
You ask two questions concerning local option elections. You first ask whether voters on
the “suspense list” or “S list” are to “be included in the total percentage of registered voters required
to sign [a] local option petition.“’
Chapter 25 1 of the Alcoholic Beverage Code governs local option elections. See TEX.ALCO.
BEV. CODE ANN. $9 25 1.Ol-81 (Vernon 1995 & Supp. 2004). Provisions for “suspense lists” or
“S-lists” generally are found in chapter 15 of the Election Code, subchapters D and E. See TEX.
ELEC. CODE ANN. $j§ 15.081-. 112. (Vernon 2003). A suspense list contains the name of each
registered voter who failed to submit to the registrar a response confirming the voter’s current
address. See id. 8 15.08 1; see also id. §§ 15.05 l-.053 (addressing confirmation notice, forms, and
response). Section 25 1.11 (d) of the Alcoholic Beverage Code, however, provides that voters “whose
names appear on the list of registered voters with the notation ‘S,’ or a similar notation, shall be
excluded from the computation of the number of registered voters of a particular territory.” TEX.
ALCO. BEV. CODE ANN. 5 25 1.l l(d) (Vernon Supp. 2004). Subsection (d) was added by the
Seventy-eighth Legislature during its Regular Session, and its effective date was September 1’2003.
It is, therefore, clear that signatures with the notation “S” or similar notation may not be included
in calculating the number of required signatures on a petition to hold a local option election that is
circulated after September 1’2003 .2
‘Letter from Honorable Chris Harris, Chair, Committee on Administration, Texas State Senate, to Honorable
Greg Abbott, Texas Attorney General (Sept. 16,2003) (on file with Opinion Committee) [hereinafter Request Letter].
2Section 13 of the act amending section 25 1.11 provides that “[tlhe changes in law made by this Act apply only
to a local option election for which an application for a petition is filed on or after the effective date of this Act. A local
option election for which an application for a petition is-filed before the effective date of this Act is governed by the law
in effect immediately before that date, and that law is continued in effect for that purpose.” Act of May 22, 2003,78th
Leg,. R.S., ch. 1047, $ 13,2003 Tex. Gen. Laws 3007,301O.
The Honorable Chris Harris - Page 2 (GA-0160)
You next ask whether an election official has the “discretion to create rules for calculating
the minimum number of signatures required for a local option alcohol petition absent specific
language in the Alcoholic Beverage Code.” Request Letter, supra note 1, at 1.
Section 25 1.11 sets forth requirements for ordering a local option election and establishes
the minimum number of signatures required for various types of petitions:
(a) The commissioners court, at its next regular session on or after the
30th day after the date the petition is filed, shall order a local option election
to be held on the issue set out in the petition if the petition is filed with the
registrar of voters not later than the 60th day after the date the petition is
issued and bears the actual signatures of a number of qualified voters of the
political subdivision equal to:
(1) 35 percent of the registered voters in the
subdivision for a ballot issue that permits voting for or
against;
(A) “The legal sale of all alcoholic
beverages for off-premise consumption only.“;
(B) “The legal sale of all alcoholic
beverages, except mixed beverages.“;
(C) “The legal sale of all alcoholic
beverages including mixed beverages.“; or
(D) “The legal sale of mixed
beverages.“;
(2) 25 percent of the registered voters in the
subdivision who voted in the most recent general election for
a ballot issue that permits voting for or against “The legal sale
of wine on the premises of a holder of a winery pennit.“; or
(3) 35 percent of the registered voters in the
subdivision who voted in the most recent gubernatorial
election for an election on any other ballot issue.
(d) Voters whose names appear on the list of registered voters with
the notation “S,” or a similar notation, shall be excluded from the
computation of the number of registered voters of a particular territory.
The Honorable Chris Harris - Page 3 (GA-0160)
TEX. ALCO. BEV. CODE ANN. 0 25 1.11 (a)( l)-(3), (d) (V emon Supp. 2004). The legislature has thus
provided specific instructions for the computation of voters in a local option petition, including a
precise mathematical formula for calculating the required number of voters. Where the language of
a statute is clear and unambiguous, there is no room for additional interpretation. See Fleming Foods
of Tex. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999); see also Mitchell Energy Corp. v. Ashworth,
943 S.W.2d 436, 438 (Tex. 1997) (in construing a statute one must attempt to give effect to the
legislature’s intent). As a result, an election official does not have discretion to adopt additional
rules for calculating the minimum number of signatures required.
The Honorable Chris Harris - Page 4 (GA-0160)
SUMMARY
Suspense list voters may not be included in determining the
minimum number of required signatures for a local option alcohol
petition. An election official does not have discretion to adopt rules
for calculating the minimum number of signatures required for a local
option alcohol petition.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee