Untitled Texas Attorney General Opinion ( 1965 )

May 12, 1965
Honorable Earle D. Garrison Opinion tie.C-439
County Attorney
Rsylor County Re: Deadline for withdrawal
Seymour, Texas of slgnatures from petltlon
for local option election
on sale of alcoholic
Dear Sir: beverages.
Yom request 'foran opinion is based on the following
facts:
On March 16, 1965, the County Clerk of Baylor
County Issued a petition, as~provldedln Articles 666-32,
Vernon's Penal Code, for a local option election on sale
of:alcohollcbeverages, to be held in Justice Precinct
No. 3 oftBaylor County. This statute requires that the
completedpetition be returned and filed within 30 days
after issuance. The petition, containing 28 signatures,
was filed with the County Clerk.on April 14, 1965. On
April 26, 1965;aft,er expiration of the 30-day period
but.'beforethe CommissionersCourt had taken action on
the petition, one of the signers filed an affidavit
requestingthat his signature be withdrawn. The number
of signaturesrequired on the petition is 28, and with-
drawal of one signature would render the petition in-
sufficient.
Your question Is whether the signer of a.petition filed
under Article 666-32 may,withdraw his signature after expiration
of the x0-day period for filing the petition.
Article 666-32 states in part:
'I+* * men a such petition so Issued shall
within thirty (3 days after the date of issue be
filed with the Clerk of the CommissionersCourt
bearing the actual slgnaturek 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, * * * it 1s hereby required that the.
Commissioners Court at Its next regular session shall
order a local option election to be held upon the
-2086
. .
Honorable Earle D. Garrison, Page 2 (C-439)
issue set out in such petition. * + *' (Emphasis added.)
In an unnumhcrcd I.cttr!ropl.nl,on of the Attorney Gcncral'c
()l'('lc:c:
r',!,ltl<:I'c:~l
I.0lic,rlc,,':ll,
I,:Tom I:l:lc:I(wc:l'l
, (:crurll..y
Al.I;~ll*ll``y
CJl
Trav13 County, on September I’j, 1956, the I'ollowln$;quc:iI.l.on :
was asked in regard to a petition filed under Article 666-32:
"Once a slgnature has been properly placad on the petition
and the petltlon filed wlth the County Clerk. can the slgner
have his name cancelled?" The opinion stated, without dls-
cussion or citation of authority. that 3 pcrcon m;ly wlthclrnw
his signature "at any time prior to the time offlclal octlon Is
taken on the petition by the Commissioners Court." From our
study of the question, we have concluded that this holding was 1
in error'insofaras it recognized a right to withdraw after
expirationof the time limit fqr filing the petition. '~
In Texas Power & Light Co. v. Brownwood Public Service
co., 87 S.W.2d~557 (Tex.Clv.App.1935), the questlon before the
court was when the right of withdrawal expired with respect to a ,
petition for a referendum election on the granting of a franchise :
by the city council. .Article1181, V.C.S., required the~clty j
council to call an election where a sufficient petition requestlw :
the election was submitted before the date fixed for the franchisei
ordinanceto take effect. Subsequent to that date but before the
city council had acted on the petltlon, a number of signers at-
tempted to wlthdraw their slgnatures. The court held that~In the
absence of a showing of good cause such as fraud or mistake, the
right of withdrawal expired upon expiration of the time limit for T
filing the petition* since It would be unfair to permit withdraw- 1
als at a time when additions could not be made. The court dls- ;
tlnguishedthe earlier case of Stahl v. Miller, 63 SrW.2d 578
(Tex.Civ.App.1933, error ref.), which had used language suscep-
tlble of the construction that signatureson a referendum elec- :
tlon petition filed under Article 1181 could be withdrawn at
any.tlmebefore the city coun'cllacted on the petition. In the !
stahl case, the request for withdrawal had been presented to the
city council, and the council had acted on the petition, before
explrationof the period for filing the petition. Consequently,
It had been unnecessary for the court to consider whether a re-
quest for withdrawal which came after expiration of the deadline ;
for filing the petition would have been timely.
The Texas Power and Light Co. case was,followed in Nunn :
v. New, 222 S.W.2d 2bl (Tex.Civ.App.1949, reversed on othe7
grounds, 148 Tex. 443, 226 S.W.2d 116). So far as we have been
able to find, there have been no other Texas decisions on the
questlonof withdrawal of signaturesfroman election petitlon.
-2087-
WC think the holding In the TP&L case Is controlling in the
present situation, and accordinglywe answer your question in
the negative. The opinion rendered by this office on Septem-
ber 13, 1956, Is overruled to the extent that it conflicts
with this opinion.
SUMMARY
:
The signer of a petition for a local option
'electionon the sale of alcoholic beverages may
not withdraw his signature from the petition after
the 30-day time limit for filing the petition has
expired. Unnumbered Attorney General's opinion
dated September 13, 1956, Is overruled to the ex-
tent of conflict with this opinion.
Yours very truly,
WAGGONER CARR
Attorney General
RYm
Mary2aF'&-
.
Assistant’
Mxw:sj:zt
APPROVEI&
OPINION COMMITTEE
W. V. Geppert, Chairman
J. C. Davis
H. Grady Chandler
W. 0. Shults
Brady Coleman
APPROVED FOR TRE ATTORNE!l GENEXAI,
BY: Stanton Stone
-2088-