Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX .hne 19, 1986
Attorney General
Supreme Court Building Mr. Timothy D. Yes.ts Opinion No. m-501
P. 0. BOX 12548
Howard County Attxney
Austin. TX. 78711.2548
51214752501
P. 0. Box 2096 Re: Permissible variances in signa-
Telex 9101874-1367 Big Spring, Texas 79721 tures on a petition for a local
Telecopier 5121475-0266 option election under the Alcoholic
Beverage Code
714 Jackson, Suite 7W
Dallas, TX. 75202-4506 Dear Mr. Yeats:
214i742-8944
Pursuant to section 251.03 of the Alcoholic Beverage Code,
petition was circulated among the qualified voters of Howard County
4824 Alberta Ave., Suite 160
El Paso. TX. 798052793
for the purpose of determining whether the sale of certain alcoholic
9156333484
beverages would be authorized within the county. The petition
returned in timely fashion to the registrar of voters of Howard County
for verification. An undisclosed number of voters' signatures were
-91 Texas, Suite 700 rejected when thexe appeared minor variances between the signatures
,u~,on, TX. 77002-3111
and the names of the voters as they appeared on the official copy
713/222-5888
the current list of registered voters.
806 Broadway, Suites 312 It is under this factual setting that you ask the following
Lubbock, TX. 79401-3479 questions:
808/747-5238
1. Is a signature invalid if it adds or leaves
out a niddle initial as compared to the official
4349 N. Tenth. Suite B current list of registered voters?
McAllen. TX. 78501-1885
51215824547 2. Is a signature invalid if the first name on
the petition is shortened or lengthened (Robert-
200 Main Plaza. Suite 400 Bob) as compared to the current voter's list?
San Antonio. TX. 782052797
5121225.4191 3. Is a signature invalid if a middle name on
the pet.itionis added or left out as compared to
the current voterls list?
An Equal Opportunity/
Affirmotlve Actlon Employer
4. Does the registrar have discretion in
approving or rejecting the signatures, and if so,
would x.erificationin any of the above situations
amount to an abuse of that discretion?
As the following paragraphs will explain, we believe the voter
registrar acted properly when she rejected the nonconforming
signatures.
p. 2300
1
Mr. Timothy D. Yeats - Page ;! (JM-501)
-,
You suggest that the rt?gistrar'sactions were prompted by section
251.10 of the Alcoholic Beverage Code. This provision instructs the
registrar to verify the signatures appearing on a petition calling for
a local option election. 1,:sets forth the following requirements:
(a) The regiiitrar of voters of the county
shall check the r.amesof the signers of petitions
and the voting pmcincts in which they reside to
determine whether .thesigners of the petition were
qualified voters XE the county, justice precincts,
or incorporated city or town at the time the
petition was issced. The registrar shall certify
to the comm1ssione.m court the number of qualified
voters signing the petition.
(b) No signature may be counted. either by the
registrar or com&sioners court, where there is
reason to believe--
that:
(1) it is not the actual signature of the
purported signer;
(2) the voter registration certificate
number is not correct;
(3) the voter registration certificate
number is not :inthe actual handwriting of the
signer;
(4) it is a duplication either of a name or
of handwriting:used in any other signature on
the petition;
(5) the rmidence address of the signer is
not correct or is not in the actual handwriting
of the signer;,z
(6) --
the name of the voter is not signed
exactly as it appears on the official copy of
the current 1Tst of registered voters for the
voting year .jz which the petition is issued.
(Emphasis addml).
Alto. Bev. Code 9251.10. Your questions assume that with the
exception of subsection :b)(6), all other requirements of section
251.10 are met and that no indication of fraud or forgery is present.
Because your fourth quest&m necessarily controls the answers to those
preceding it, we shall comider this question first.
p. 2301
Mr. Timothy D. Yeats - Page 3 (JM-501)
Your final question concerns the amount of discretion the
registrar is granted by section 251.10. It is suggested that the
registrar may have the dtixretion to waive nonconforming signatures
appearing on local option r,lectionpetitions if all other requirements
of subsection (b) are met. This suggestion is inspired by the use of
the word %sy" in subsection (b): “[Ii]0 signature % be
counted. . . ." The portjon of the Texas Liquor Control Act from
which subsection (b) is det,ivedwas phrased: "[nlo signature shall be
counted. . . ." Penal Code,art. 666-32 (repealed 1977). Although the
word "may" generally conrm:es a discretionary function, "no signature
may . . .I'is clearly manda.tory. Ryan V. I$mtgomery, 240 N.W.Zd 236
(Mich. 1976) ("may not" means "shall not ). Matter of Estate of
Minnick, 653 S.W.Zd 503 (TEx. App. - Amarillo 1983, no writ).
In construing electior.laws. it is necessary to determine whether
the provisions under scrutiny are mandatory or directory in nature.
Branaum v. Patrick, 643 S.k'.Zd745, 749 (Tex. App. - San Antonio 1982,
no writ). In general, election laws are to be construed as directory
in the absence of fraud 01'mandatory provisions. Stotler v. Fetzer,
630 S.W.Zd 782 (Tex. App. -. Houston [lst Dist.] 1982, writ dism'd);
Attorney General Opinion 511-467 (1986). Because the right to vote is
fundamental, election law ptovisions relating to voters are construed
as directory. Leach v. Fischer,
-- 669 S.W.Zd 844 (Tex. App. - Fort
Worth 1984, no writ); --
Bramum v. Patrick, supra. Irregularities in
the election process which do not disenfranchise the voters or affect
the result of an election 6.regenerally treated as informalities. See
Branaum v. Patrick, supra, at 750. Election law provisions concern=
candidates and their qualifications are mandatory because the right to
hold office is considered 8.privilege. Leach v.-Fischer, supra.-
We believe section 251.10 is a mandatory provision. Granted,
this section does not deal with the qualifications of a candidate. It
does, however, concern wt.ether the election issue, rather than a
candidate's name, will be placed on the ballot. In this sense,
section 251.10 must be comtrued as mandatory. Cf. Leach V. Fischer,
supra. Moreover, because we believe subsection(b) is clear and
unambiguous, it must be enforced according to its express language.
Call V. Service Motors, Inc,,,660 S.W.Zd 814. 815 (Tex. 1983).
Subsection (b)(6) of article 251.10 simply and clearly requires
the person signing a local option election petition to sign his name
"exactly as it appears on -the. . . list of registered voters." It
does not, in our opinion, authorize any variance between the signature
and the corresponding name on the list of registered voters. Nor does
it provide an alternative ,mathodof verifying signatures. Penal Code
article 666-32 was interpr,etedto grant the commissioners court and
county clerk the authority to adopt any necessary and reasonable means
to ascertain the number of required signatures and to determine
whether the signers of the petition were qualified voters. --See Akers
V. Remington, 115 S.W.Zd 714, 720 (Tex. Civ. App. - Fort Worth 1938,
p. 2302
Mr. Timothy D. Yeats - Page 4 (JM-501)
writ dism'd); Attorney Gen'sral Opinions E-199 (1974); C-266 (1964);
C-263 (1964); NW-1356 (19t2); O-7218 (1945); O-6364 (1945). These
opinions, however, concermd the performance of duties clearly
expressed in the statute. 'They did not consider the case where the
election officials seek to mold or deviate from the provisions of the
statute. We find nothing in the Alcoholic Beverage Code which
suggests that the regist:rar has any discretion to waive the
requirements of the Code. Compare Eutson v. Smith, 191 S.W.Zd 779,
784-85 (Tex. Civ. App. - Galveston 1945, no writ) (commissioners court
has authority to call local option election independent of petition;
thus, court's order callin for local option election constituted
waiver of defects apparent on face of petition when commissioners had
full knowledge of such defects). Consequently, the registrar has no
discretion to waive the signature requirement of section 251.10(b)(6),
even if all other requiremeats of subsection (b) are satisfied.
Ordinarily, any mark xade with the present intention to adopt or
authentic:ate the document %s a legally sufficient signature. See
Delespine v. State, 396 S.k'.Zd133, 136 (Tex. Grim. App. 1965), cert.
denied 384 U.S. 1019 (1966). See also Gov't. Code §§311.005(6),
312.011(14) (definition of "signed" and flsignature"). However. given
the mandatory character XE -subsection (b)(6), your first three
questions must be answered in the affirmative.
SUMMARY
The provision!; of section 251.10, subsection
(b) of the Alcohclic Beverage Code are mandatory.
The registrar of voters has no authority to waive
the signature recuirement of section 251.10(b)(6)
If all other re$,uirements of subsection (b) are
met.
JIM MATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
p. 2303
Mr. Timothy D. Yeats - Paga!5 (JM-501)
RICK GILPIN
Chairman, Opinion Comittel!
Prepared by Rick Gilpin
Assistant Attorney General
p. 2304