Untitled Texas Attorney General Opinion ( 1962 )

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EA ORNEY GENE-L
OF TEXAS
AUSTIN as. TEXAS
June 22, 1962
Honorable J. W. Edgar Opinion No. WW-1363
Commissioner of Education
Texas Education Agency Re: Whether the submitted in-
Austin, Texas struments are sufficient
to constitute a valid pe-
tition for the calling of
a school election under
the provisions of Article
2900a, Vernon's Civil Stat-
Dear Dr. Edgar: utes.
You have submitted certain instruments to this office
and requested our opinion as to whether these instruments are
sufficient to constitute a valid petition for the calling of
a school election under the provisions of Article 2900a, Ver-
non's Civil Statutes.
Article 2900a authorizes and prescribes the procedure
for the abolition of the dual school system by vote of the
qualified electors residing in a school district at an elec-
tion called for such purpose. Section 2 of Article 2900a
provides in part as follows:
"An election for such purpose shall be
called only upon a petition signed by at least
twenty per cent (20%) of the qualified electors
residing in such district. Such petition shall
be presented to such office or board now author-
ized to call school elections. . . . the official
or board shall call such an election within sixty
(60) days after filing of such petition. . . .“
Certain problems are evident in an examination of the
submitted documents. The first of these problems is that the
"petition" as such consists of several completely separate
documents, the signatures to which are separate although at-
tached to the parent petition. The signatures are, in some
cases, on blank pieces of paper which are attached to the
petition by staples. Other sig,naturesare on the reverse side
of the petition itself. Another problem is whether or not all
of the submitted instruments constitute one petition. Some of
Hon. J. W. Edgar, page 2 (W-1363)
the instruments contain wording'the same in many respects
but dissimilar in others. Apparently there are two sets of
petitions since there are only two different sets of word-
ing. Only If the two dissimilar sets can be held to consti-
tute one petition in fact can there be a sufficient number of
signatures to constitute 20% of the qualified voters.
Another objection that has been raised is that some
of the petitions or lists contain a "Mr. and Mrs." before
the signatory. Obviously the same was written by one person
and could not have been signed by both a man and a woman.
Other minor irregularities appear in other signatures, together
with a lack of authorization ,for such irregularities. You have
asked this office to examine the submitted Instruments in the
light of the reported Irregularities and advise as to the ef-
fect of such upon the instruments as a petition for the pur-
poses of calling an election under Article 2900a.
In'attempting to determine the sufficiency of the sub-
mitted documents, we must first note that there is no general
statute In Texas relating to the necessary contents and form
of a petition for an election. The sufficiency of any given
petitionmustbe measured by the statute which~requires Its use.
In this case we have Article 2900a. This Article merely states
that the petition must be signed by 20% of the qualified voters.
Since this provides no effective guideline, we must turn to
general law in an attempt to determine~the necessary require-
ments of form of a.petltion for an election. In Neal v. State,
102 S.W. 1139'(Tex.Crim. 1907), it was held that in a ~local
optionpetition 'separateheadings still constituted one pe-
tition. The mere fact that the rjetitionwas in several nieces
did not, of itself, vitiate the &Jallty of the petition.‘ In
Dillard v. State, 20 S.W. 1106 (Tex.Crim. 1893), a petition in
a local option election was held to be sufficient If the said
petition was intelligible as to the desire of the voters. In
the landmark case of Graves v. Rudd, 65 S.W. 63 (Civ.App. 1901,
writ denied), the validity of an erection was challenged on I
the grounds that there was a variance between the petition for
the election and the order calling the election. The court
said that this variance was Immaterial on the ground that there
was no real uncertainty present. No voter could have been con-
fused by the petition. We also cite Attorney General's Opinion
No. O-2901 (1940). In this opinion certain guidelines were set
forth and a copy is enclosed for your information.
- -
Hon. J. W. Edgar, page 3 (``-1.363)
On the basis of the cases cited above, It must be seen
that the test for sufficiency of a~petltlon for an election
is essentially whether or notthe voter signing the 'petition
fully understood the matter to which~he was affixing his
signature.- If each of the voters who signed did so understand,
then a minor variance in phraseology of the several circulated
petitions would not appear to be a fatal flaw. The determination
of whether or not the variation between the various petitions is
minor or major is a matter to be decided by the agency to which
the petition Is addressed.
The case of Boynton v. Brown, 164 S.W. 893 (Civ.App. 1914,
error ref.), held that the determination of validity of a ue-
tition for.& election Is a judicial act. A court may not‘dls-
turb such a determination unless it Is shown to have been arbi-
trary, unreasonable, capricious or fraudulent, The determination
is a judicial act that can only be taken by the authority to
which the petition Is addressed. The few cases which have dealt
with the ,@ufficiencyof petitions have unanimously upheld this
statement. Graves v. Ruhd, su ra' Winfree v. Montgomery County,
Cl A 1 11 1 E2
of Appeal;, ``wp!&kg3``!&e~
I ; .:'SM
. . "~%tio``,' i 2;'.
With the law in its present state, the responsibility for
determining the sufficiency of this petition or petitions falls
on the local school board. It is its duty to make findings of
fact regarding the validity of the signatures presented them, re-
garding the unity of the petition or petitions presented to them
and regarding satisfaction of the 2076requirement of Article 2900a.
Stated In another way, we must hold that the sufficiency of a pe-
tition for the holding of a school election under Article 2900a Is
a question of fact which Is resolvable in the first instance
only by the school board to which the petitions are addressed.
Bearing in mind the requirement stated in Boynton v. Brown, supra,
that the determination must not be arbitrary, unreasonable, capri-
cious or fraudulent, the school board's determination may not be
attacked.
By virtue of the cases and textual material cited, the
matter reduces itself to questions of fact. You are advised
that the Attorney General Is unable to resolve questions of fact
and render decisions thereupon. We cannot Invade the province
of the local authorities.
Hon. J. W; Edgar, page 4 (``-1363)
SUMMARY
Whether certain submitted instruments
constitute a petition that would re-
quire calling an election under Article
2900a, V.C.S., is a question of fact
that must be resolved by the local school
board, acting in a judicial capacity.
Very truly yours,
WILL WILSON
MLQ:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Morgan Nesbitt
Marvin Sentell
Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore