Untitled Texas Attorney General Opinion

GENERAL
July 30, 1963
Honorable James E. Barlow Opinion No. C- 116
Criminal District Attorney
Bexar County Re: Construction of Sec. 3, Art.
San Antonio, Texas IX of the Constitution relative
to vote required for adoption'
Dear Sir: of a county home rule charter.
In your letter requesting an opinion of this office, you
state that Bexar County is in process of drafting a home rule charter
to be submitted to the voters early In the fall, and you ask for an
opinion on the number of votes which are required to adopt the char-
ter. In substance, your question is whether the vote required is a
majority of the qualified electors eligible to vote, or only a majority
of those actually voting at the election. Directly Involved Is a noti--
struc.ticn of the following provision in Subsection (2) of Section 3,
Article IX of the Texas Constitution:
1, .No County Home Rule Charter may be adopted
by any'c&nty save upon a favoring vote of the resident
qualified electors of the affected county. In elections
submitting to the voters a proposal to adopt a Charter
(unless otherwise provided by a two-thirds vote of the
total membership of each House of the Legislature) the
votes cast by the qualified electors residing within the
limits of all the Incorporated cities and towns of the
county shall be separately kept but collectively count-
ed and the votes of the qualified electors of the county
who do not reside within the limits of any incorporated
city or town likewise shall be separately kept and separ-
ately counted, and unless there be a favoring majority of
the votes cast within and a favoring majority of the votes
cast without such collective cities and towns, the Charter
shall not be adopted."
Acting under the provision authorizing the Legislature to
change the requirement for separation of the votes cast within and
without the cities and towns, the Legislature in 1951 passed a statute
(Article 1606b, V.C.S.) which provides as follows:
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Hon. James E. Barlow, page 2 (C- 116 )
“Authority is hereby conferred upon Bexar County
to adopt a ‘Home Rule Charter’ In accordance with the
provisions of Section 3 of Article IX of the Constitu-
tion of Texas by a favoring vote of the resident quall-
fied electors of said County, and It shall not be neces-
sary for the votes cast by the qualified electors residing
within the limits of all the incorporated cities and
towns of the county to be separately kept not separately
counted from those cast by qualified electors of the
county who do not reside within the limits of any in-
corporated city or town, and a favoring majority of the
votes of such electors cast in the county as a whole
shall determine the result of such election.”
In your brief you have reached the conclusion that the
language of the constitutional provision requiring “a favoring vote
of the resident qualified electors of the affected county” makes
a majority vote of all qualified electors necessary for adoption
of the charter. You have concluded, further, that Article 1606b
is unconstitutional because it attempts to require only a majority
of the votes cast at the election, and that the election in Bexar
County will have to proceed under the provisions of Article 1606a,
V.C.S. (the general enabling statute) and the votes In the cities
will have to be kept and counted separately from the votes in the
remainder of the county.
Section 15 of Article 1606a provides:
“If the election results In a constitutional
majority of the votes cast in the election being
for the charter, the same shall be declared to be
adopted. . . . I . . I’
Section 15a of Article 1606a repeats the provisions of Section 3,
Article IX quoted above, except for omission of the parenthetical
language permitting the Legislature to change the requirement for
a favoring vote both within and without the cities and towns. You
have concluded that, In view of Section 15a, the “constitutional
majority” required by Section 15 means a majority of the qualified
electors of the county.
We are unable to agree with your construction of the
quoted constitutional provision. The first sentence of the quotation,
standing alone, Is ambiguous, but when.construed In conjunction with
the succeeding sentence we think it Is, clear that “a favoring vote
of the resident qualified electors of the affected county” means a
majority of the votes cast at the election. The phrase ‘resident
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Hon. James E. Barlow, page 3 (C- 116 )
qualified electors of the affected county” defines the persons
eligible to vote, but does not define -~the basis on which the
favorable vote shall be determined. The second sentence explains
the vote required for adoption. It provides that (unless other-
wise provided by Legislature) the charter shall not be adopted
“unless there be a favoring majority of the votes cast within and
and a favoring madority of the votes cast with t h collective
cities and towns. (Emphasis added,) In our Ei,nii:, the intend-
ed meaning of these provisions is that the converse shall also be
true, i.e., that the charter shall be adopted If there Is a favor-
ing majority of the votes cast within and a favoring majority of the
votes cast without the cities and towns. We do not find any warrant
for reading Into these provisions the further requirement that the
combined majorities must be a majority of all qualified electors
of the county.
The construction we place on the provision under consider-
ation Is supported by other rovlsions in Section 3 of Article IX.
Paragraph e of Subsection (3 P provides that ‘any county may, by a
majority vote of the qualified electors of said county, amend its
Charter to include other powers. ., . . .“’ -Subsection (7) provides that
charters shall make appropriate provision for the abandonment, revo-
cation, and amendment-thereof, “subject only to the requirements
that there must be a favoring ma.lorit?? o??f %ie vote cast upon such
a proposal, by the qualified resident electors of the county....,. .I’
Emphasis added.) In view of Subsect ion (7), It Is clear that
‘
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majority vote of the qualified elect ors of said county” means a
majority-of those voting at the election. The similar language,
“favoring vote of the resident qualified electors of the affected
county,” should be construed to have similar meaning. Walker v.
Ko er 99 S.W.2d 1034 (Tex.Civ.App. 1937, error dism.); 39 Tex.
3iiki01, Statutes, Sec. 108.
Attorney Qeneral’s Opinion No. C-54 (1963) Involved the
vote required for creation of hospital districts under Section 9,
Article IX of the Constitution. One yovislon of the section states
that a district shall not be created unless approved by a majority
of the qualified property taxpaying electors thereof voting at an
election called for the purpose,” whereas a subsequent provision
states that no district shall be created except by act of the Legls-
lature “and in no event may the Legislature provide for a district
to be created without the affirmative vote of a majorlt of the tax-
paying voters in the district concerned.” In holding t Kat the latter
provision was not Intended to require anything more than, a majority
vote of those voting at the election, the opinion alluded to the rule
stated in 39 Tex.Jur. 162, Statutes, Sec. 91, to the effect that a
statute should be given a reasonable and sensible construction, and
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Hon. James E. Barlow, page 4 (C- 116 )
irrational conclusions or deductions should be avoided in the
absence of compelling language found in the enactment.
This rule may aptly be applied to the present inquiry.
Apart from the clarifying language following the provision, a very
practical argument for concluding that the provision under consider-
ation was not intended to require a majority vote of all qualified
electors Is that there is no means by which the canvassing authorities
may accurately ascertain the number of qualified electors in the
county. In 1933, when the County Home Rule Amendment was adopted,
as at the present time, voters exempt from payment of the poll tax
on the ground of overage and who do not live in a city of 10,000
or more Inhabitants are not required to obtain an exemption certifi-
cate or to register In any manner. Also, at that time certain per-
sons exempt on the ground of nonage or nonresidence were not required
to obtain exemption certificates. Arts. 2968, 2969, R.C.S. of 1925.
Moreover, the tax collector’s list of qualified voters might not
accurately reflect as of the day of the election the number of qualified
voters in the county who were required to obtain poll tax receipts or
exemption certificates, because of deaths and removals into and out of
the county after the receipts and certificates were Issued. A requlre-
ment for a majority vote of all qualified electors might leave the
outcome of some elections unresolved or in doubt because of the in-
ability to determine the number of qualified electors. It is unreason-
able to believe that such a result was intended In the absence of
compelling language.
In view of the lack of means for accurate ascertainment of
the number of ualified electors in the county, the constitutionality
of Article 160 %b could be sustained on the authority of City of Fort
Worth v. Davis, 57 Tex. 225 (1882), even if the constitutional pro-
vision Itself should be construed to require a majority vote of all
qualified electors residing in the county. In that case the court
held that a constitutional provision authorizing the levy of a munici-
pal tax “If two-thirds of the taxpayers of such city or town shall vote
for such tax” required an affirmative vote of two-thirds of all the
taxpayers in the town who were qualified voters, but the court upheld
a statute implementing the constitutional provision which required an
affirmative vote of two-thirds of the taxpayers voting a,t the election,
on the ground that the constitution prescribed no means of ascertaining
the number of taxpaying qualified voters in the city and it was ,competent
for the Legislature to adopt the number of votes cast as the test for
the number of taxpaying voters on the day of the election.
Since succeeding provisions in Section 3, Article IX clarify
the meaning of “a favoring vote of the resident qualified electors of
the affected county,” It is unnecessary to dwell on what construction
would be given the quoted language standing alone; but it might be
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Hon. James E. Barlow, page 5 (C- 116 )
mentioned that the Texas courts have held that constitutional and
statutory provisions requiring a majority vote of the qualified'
voters mean a majority of those actual1 voting at the election.
Bradshaw v. Marmlon, 188 S.W. 973 (19167; Marsden v. Troy
W 9bl (Tex.Clv.App. 1916); SW 195 S W 53i8TTex
&v:App. 1917); State ex rel. Wilkinson v. S elf, 191 S.fi.2d 756 ,*
(Tex.Clv.App. 1945) Eason v. Robertson, 288 S . W.2d 269 (Tex.Civ.
App. 1956, error di&n.). Whll th e reasoning In some of the cases
might allow for a distinction between the use of the phrase "quali-
fled voters" and the phrase "qualified electors," the reason advanced
in other cases is equally applicable to either term.
It is our opinion that Section 3, Article IX of the Constl-
tution requires only a majority vote of the qualified electors voting
at the election. We therefore are of the opinion that the provision
in Article 1606b, V.C.S., requiring a favoring majority of the votes
cast is not in conflict with the Constitution.
SUMMARY
The vote required by Section 3, Article IX of
the Texas Constitution for adoption of a county home
rule charter Is a majority of the qualified electors
who actually vote at the election rather than a majority
of all qualified electors eligible to vote.
Yours very truly,
WAGGONER CARR
Attorney General
By27 K %=+=
Mary . Wall
'Assistant
MKW:jh:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. S. Bracewell
George Gray
Milton Richardson
APPROVEDFOR THE ATTORNEYGENERAL
BY: Stanton Stone
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