Untitled Texas Attorney General Opinion ( 1952 )

THE AYTORNEX GE~NERAL
OFTEXAS
December 18, 1952
Hon. E. W. Patteson Opinion No. V-1555
County Attorney
Gonzales County Re: Authority of the county judge to
Gonzales, Texas determine the sufficiency of a
petition requesting an election
upon the issue of dissolving the
Dear Sir: incorporationof the City of Smiley.
Your request for an opinion discloses the following facts:
Gn July 29, 1952, a petition signed by 74 persons
was submitted to the county judge of Gonzales County
under the provisions of Article 1242, Vernon’s Civil
Statutes, requesting that an election be called for the
purpose of determining whether the incorporation of
the City of Smiley should be dissolved. The county
judge considered the petition and determined under
the provisions of Articles 1241. 1242, and 1243, V.C.S..
that an insufficient number of the legally qualified
property tax-paying voters ,had signed the petition,
and, therefore, by order dated August 7.. 1952. de-
nied and refused the petition. Thereafter, the propo-
nents of the petition submitted to the county judge
another list of signatures, which if considered with
the denied original petition would be a sufficient num-
ber of signatures to require the calling of the election.
The proponents requested that the additional signatures
be considered as an amendment to the denied petition
and an election called.
Based upon the above facts, you ask whether the county
judge would be authorized to consider the denied petition of July
29, 1952, in connection with the subsequently filed new petition so
as to meet the requirements of Article 1242, V.C.S.. as to the re-
quired number of signatures (100) necessary to call the election.
Under the submitted facts we are of the opinion that the
question must be answered in the negative.
You state in your request that the City of Smiley has
adopted and accepted the provisions of Article 961. V.C.S. It is
therefore subject to the provisions of Article 1242. V.C.S., rather
than Article 1261, V.C.S. Richardson v. State, 199 S.W.2d 239 (Tax.
Civ. App. 1947, error ref. n.r.e.).
. .I
Hon. E. W. Pattison. page 2 (V-1555)
Article 1242, V.C,S., provides:
“When one hundred of the property tax-payers, who
are qualified voters of any such city or town, desire
the abolishment of such corporation, they may petition
the county judge to that effect, who shall thereupon or-
der an election to be held in such city or town, as in the
case of its incorporation. If a majority of the property
taxpayers, who are qualified voters, of any such city or
town is less than one hundred in number, then the coun-
ty judge shall order an election as above provided upon
the presentation to him of a petition signed by a major-
ity of the tax payers of such city or town, who are qual-
ified voters thereof.”
Clearly the county judge had the authority before accept-
ing the petition of July 29, 1952, to determine its sufficiency with
regard to latent defects such as the requisite voting qualifications
of the signers. West End Rural High School Dist. v. Columbus Con-
solidated Ind. School Dust.. 148 Tex. 153 221 S . W . 2d 77-77I949) . In
-the judge was Acting in an administrative
capacity. Att’y Gen. Op. O-2577 (1940). In such cases it is the duty
of the county judge to ascertain whether the required number of vot-
ers joined in the petition and whether they were qualified, but in
making this decision the county judge is allowed to exercise his own
discretion, provided his decision is based upon reason and fairness.
In Boynton v. Brown. 164 S.W. 893 (Tex. Civ. Apm, err-
the Court said:
Y
. . . Under the operation of this rule, whenever
the law directs an officer or officers to order an elec-
tion when a certain number of qualified voters have
joined in a petition for same, it is made the duty of the
officers to ascertain whether the requisite number of
voters have joined in the petition, and whether they are
qualified, and mandamus will not lie to control them in
the exercise of that duty; but the officers upon whom is
devolved the duty of calling the election will be allowed
to exercise their own judgment. Their action must be
based upon reason and fairness, however; . 0 .” (Em-
phasis added.)
From the’above we think it follows that the county judge
once having denied the petition of July 29, 1952, for lack of sufficient
signatures, and having entered an order to that effect, is not now
authorized to consider the original petition along with a second peti-
tion, which standing alone is likewise insufficient, in order to find
the required number of voters specified in the statute (Art. 1242).
To do so would or could result in unfairness and therefore be an
abuse of discretion. This is so for the reason that a party may
Hon. E. W. Patteson, page 3 (V- 1555)
withdraw his name from a petition requesting an election at any
time before action is taken thereon (South Taylor County Inde-
pendent School District v. Winters Independent School Districx,
249 S DW . 2d 1010 [T ex. Sup. Ct. ); and smce the Judge havmg
once denied the petition of July 29, 1952, a signer of such peti-
tion might and probably would be led to believe that there was
no necessity for requesting the withdrawal of his name even
though he did not as of the time the second petition was filed
any longer desire to join in a petition for an election. Under
such circumstances we are of the opinion that the second peti-
tion should be complete within itself and it would be an abuse
of discretion for the county judge to consider a petition. once
denied and refused, along with a second petition. insufficient
within itself, in order to arrive at the number of qualified tax-
paying voters required for the calling of an election under the
provisions of Article 1242, V.C.S.
SUMMARY
Where a county judge has once considered a peti-
tion for an election and refused the same, it would be
an abuse of his discretion to thereafter consider such
denied petition inconjunctionwitha later petition, which
standing alone is insufficient, in order to arrive at the
number of qualified tax-paying voters required for the
calling of an election under the provisions of Article
1242, V.C.S.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
C. K. Richards
Trial & Appellate Division By &--ddz vdh'W-2
Charles D. Mathews
E. Jacobsen First Assistant
Reviewing Assistant
CDM:b