Untitled Texas Attorney General Opinion ( 1973 )

HE .&ATT0
0F TEXAS
The Honorable Tim Curry Opinion No. H- 181
Criminal District Attorney
Tarrant County Re: The law controlling local
Ft. Worth, Texas 76102 option petitions issued
before, but filed after,
the effective date of new
legislation.
Dear Mr. Curry:
You have advised us that residents of five municipalities in a justice
precinct which had recently voted “wet” obtained petitions from the county
clerk for the purpose of calling elections to prohibit the sale of alcoholic
beverages in those towns. All petitions were obtained prior to August
27, 1973, and the proponents apparently were advised they needed the
signatures of only 25 per cent of the eligible voters. The petitions were
“filed” with the county clerk after August 27, 1973, which was the effective
date of Amendments to Article 666-32, Vernon’s Texas Penal Code, (Acts
1973, 63rd Leg., ch. 219, p. 508) which, inter
-- alia; changed the number
of signatures required on a petition for a local option election from
25 per cent to 35 per cent of the eligible voters. Your first question
is whether petitions issued before August 27, 1973, but returned after
that date require signatures of 25 per cent or 35 per cent of the
qualified voters before a local option election is required.
Article 666-32, V. T. P. C., as amended provides in part:
“The commissioners court of each county in
the state, upon proper petition, shall order an election
wherein the qualified voters of such county, or of any
justice precinct, or incorporated city or town therein,
may by the exercise of local option determine whether or
p. 826
The Honorable Tim Curry, page 2 (H-181)
not the sale of alcoholic beverages of one or more of the
varioustypes and alcoholic contents shall be prohibited or
legalized within the prescribed limits of such county,
justice precinct, or incorporated city or town.
, . . When any such petition so issued shall within
&J,&ztvdavs after the date of issue be filed with the
county clerk bearing the actual signatures of as
many as thirty-five percent of the qualified voters
of any such county, justice precinct, or incorporated
city or town, together with a notation showing the
residence address of each of the said signers, together
with the number that appears on his voter registration
certificate, all of which information shall be in the
actual handwriting of the signers of the petition,
taking the vote for Governor at the last preceding
general election as the basis for determining the
number of qualified voters in any such county, justice
precinct, or incorporated city or town, it is hereby
required that the commissioners court at its next
regular session shall order a local option election
to be held upon the issue set out in such petition. ”
(emphasis added)
We are sympathetic to the situtation in which the proponents of the
election find themselves. However, we are not at liberty to consider the
equities. Our only authority is to construe the law. And here we find
ourselves faced with clear language of the statute and the precedent of
Attorney General Opinion M-324 (1968). There petitions were issued
before a general election, but were returned and filed after the election.
In response to an inquiry concerning whether the last preceding general
election was determined by reference to the date of issuance or to the
date of filing, this office held that the date of filing was the appropriate
date. In that opinion we said:
p. 827
The Honorable Tim Curry, page 3 (H-181)
“In our opinion the instrument issued by the county
clerk never becomes a petition signed by the voters until
it is filed in the county clerk’s office. The date of filing
is the date that the petition becomes an official petition.
It is the petition that confers the jurisdiction to call the
election. cf: Powell v. Bond, County Attorney, 150 S. W.
2d 337 (Tex. Civ. App. 1941, error ref.); and see Bennett
v. Moore, 157 S. W. 2d 515 (Ark. Sup. 1942), holding
that it is the time of filing of a petition that will govern in
determining the number of legal voters and the percentage
thereof for determination of the calling of an election.
Since the only petition on file was filed subsequent to
the General Election of November 5. 1968, the petition
must meet the test of ‘twenty-five percent of the qualified
voters taking the vote for Governor at the last preceding
general election at which presidential electors were
elected as the basis for determining the number of
qualified voters in any such county, justice precinct,
or incorporated city or town. ’ Under the facts submitted,
the last presidential general election is November 5,
1968. ”
We believe the statutory language requiring that a petition “be
filed with the county clerk bearing the actual signature of as many as
thirty-five percent of the qualified voters” requires the conclusion that
the law in effect on the date of filing likewise controls the percentage
of voters which is required to sign the petition
Your second question is whether the commissioners court must
order an election at its next regular meeting after a petition is filed.
In this regard you advise us that the county clerk often is unable to
check and certify the petition before the regular meeting of the
commissioners court.
Another portion of amended Article 666-32, V. T. P. C. provides:
p. 828
The Honorable Tim Curry, page 4 (H-181)
“It shall be the duty of the county clerk to check
the names of the signers of any such petition, and the
voting precincts in which they reside to determine whether
or not the signers of such petition were in fact qualified
voters in such county, justice precinct, or incorporated
city or town at the time such petition was issued, and to
certify to the commissioners court the number of qualified
voters signing such petition. No signature shall be
counted, either by the county clerk or the co mmissioners
court, where there is reason to believe it is not the
actual signature of the purported signer, or that the
voter registration certificate number is not correct
or in the actual handwriting of the signer, or that
it is a duplication either of name or of handwriting
used in any other signature on the petition, and no
signature shall be counted unless the correct residence
address of the signer is shown in the actual handwriting
of the signer and unless it is signed exactly as the name
of the voter appears on the official copy of the current
list of registered voters for the voting year which
the petition is issued.
“The minutes of the commissioners court shall
record the date any such petition is presented, the
names of the signers thereof, and the action taken
with relation to the same.”
The commissioners court is required to order an election only on
presentation of a proper petition. The statute provides guidelines for the
county clerk and the commissioners court to use in ascertaining the
authenticity of the signatures. We believe the commissioners court must
order an election at its first regular meeting after the petition is
certified by the county clerk. Ellis v. Vanderslice, 486 S. W. 2d 155(Tex. Civ. App. Dallas, 1972, no writ).
p. 829
,
The Honorable Tim Curry, page 5 (H-181)
SUMMARY
The law which is effective on the date a local option
petition is filed determines the number of signatures
required. If the petition is in the correct form and
contains the required number of signatures, the commis-
sioners court must order an election at its first regular
meeting after the county clerk certifies the number of
qualified voters signing the petition.
Yours very truly,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 830