EA mu GENERAL
OF TEXAS
Hon. Coke R. Stevenson, Jr. Opinion No. c-426
Administrator
Texas Liquor Control Board Re: Whether the signer of a
Austin, Texas petition for a local
option election to
prohibit the sale of
alcoholic beverages is
legally bound to vote
for prohibition if the
election is called,
Dear Sir: and related question.
You have requested an opinion on the following
questions:
"1. Is the signer of a local option petition
seeking to call an election to prohibit sale of
alcoholic beverages legally bound to vote for
prohibition if said election is called?
"2. Does any person whatsoever have the
right to check the ballots cast in such election
to determine how signers of the petition voted
at the election?"
We agree with your conclusion that both of these
questions should be answered in the negative.
The purpose of requiring a petition of voters as a
prerequisite for the calling of a local option election is to
show that there is a sufficient number of qualified voters
requesting the issue to be voted on as to indicate a likelihood
of its carrying at the election, thereby justifying the holding
of the election in order to determine the will of a majority ES
the voters. Undoubtedly, the contemplation of the law is that
each signer should have a present good faith intention, at the
time of signing a petition, to vote for the issue to be submitted
if en election is held. In keeping with the purpose of the
petition, Article 666-32 of Vernon's Penal Code provides that
a petition for an election seeking to legalize the sale of
alcoholic beverages must contain a statement that "it is the
hope, purpose and intent of the petitioners whose signatures
appear hereon to see legalized the sale of alcoholic beverages
-2002-
Hon. Coke R. Stevenson, Jr., page 2 (C-426)
referred to in the issue set out above," and a petition for an
election seeking to prohibit the sale of alcoholic beverages
must contain a statement that "it is the hope, purpose and
intent of the petitioners whose signatures appear hereon to
see prohibited the sale of alcoholic beverages referred to in
the issue set out above." However, there is no provision in
the statute which purports to compel a signer to vote for the
issue or which purports to invalidate his ballot if he does not
vote for it. To the contrary, the law as enunciated by our
courts recognizes the right of a person to change his mind and
to withdraw his signature after he has signed a petition for an
election. Stahl v; Miller, 63 S.W.2d 578-(Tex.Civ.App. 1983,
error ref.); Texas Power & Light Co. v. Brownwood Public Serv.
87 S.W.2d 55
;(Tex.Civ.App.d
%i'(Tex.Civ.A p. 1949, reversed m other grounds, 148 Tex. 443,
226 s.W.2d 116 P . The right to withdraw one's signature from the
petition ceases at a certain stage of the proceedings leading up
to the calling and holding of the election because it is necessary
to have a definite deadline for fixing the status of the petition
incident to determining its sufficiency; but the right of a
signer to change his mind and to vote as he chooses at the
election continues up to the moment that he deposits his ballot
in the ballot box.
Since there is no statute attempting to invalidate a
ballot for being cast contrary to the voter's indicated view
when he signed the petition for the election, it is unnecessary
to consider whether such a statute would violate the privilege
of free suffrage guaranteed by our Constitution. Westerman V.
-9 111 Tex. 29, 227 S.W. 178 (1921).
Your second question is whether anyone has the right
to check the ballots cast in a local option election to determine
how signers of the petition voted at the election. Article VI,
Section 4 of the Texas Constitution provides for a secret ballot
in elections, and the statutes prescribing election procedures
strive to assure realization of this constitutional provision.
See Arts. 8.11, 8.15, and 8.20, Texas Election Code. The only
lawful manner for ascertaining how a person voted at an election
is by matching his signed ballot stub with his ballot. After a
ballot has been cast, the only circumstances under which a stub
box may lawfully be opened and the stub matched with the ballot
from which it has been detached is on order of the district
judge in an election contest, where it has been determined that
the ballot was illegally cast, or in the investigation of alleged
criminal violations. Art. 8.15, supra. Since a ballot cast
contrary to the voter's indicated view when he signed the petition
for the election is not illegal, no authority would exist even
in these two circumstances for permitting an examination of the
-2003-
Hon. Coke R. Stevenson, Jr., page 3 (~426)
ballots and stubs with a view to ascertaining how the signers
of the petition had voted.
SUMMARY
The signers of a petition for a local option
election to prohibit the sale of alcoholic beverages
are not legally bound to vote for prohibition if
the election is called. No one has a right to
check the ballots cast in the election to determine
how signers of the petition voted.
Yours very truly,
WAGGONER CARR
Attorney General
MKW:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Banks
George Black
Terry Goodman
H. Grady Chandler
APPROVED FOR THE ATTORNEY GEI'IEXAL
BYt Stanton Stone
-2004-