Honorable Donald E. Short Opinion NO. c-263
County Attorney
Wichita County Courthouse He: Constructionof Art. 666-32,
Wichita Falls, Texas V.P.C. in reference to a pe-
tition for a local option
election in the City of
Dear Mr. Short: Pleasant Valley.
In your letter of March 20, 1964, you asked for a con-
struction of Article 666-32, Vernon's Penal Code, in antlcl-
patlon of an Incorporatedcityls local option election to pro-
hibit the sale of alohollc beverages.
The pertinent part of the statute is:
When any such petition so,issued
shall*wi&ln thirty (30) days after the date
of Issue be filed with the Clerk of the Com-
missioners Court bearing the aotual signatures
of as many as twenty-fiveper cent (25%) of the
qualified voters of any such county, justice's
precinct, or incorporatedcity or town, to-
gether with a notation showing the residence
address of each of the said signers, together
with the number that appears on his poll tax
receipt or exemption certificate,or a sworn
statement that the signer is entitled to vote
without holding either a poll tax receipt or
an exemption certificate,taking the votes for
Governor at the last preceding General Election
at which presidentialelectors were elected as
e basis for determlnln
session shall order a local option election to
be held u on the Issue set out in such petition
. . . .” PEmphasls Supplied)
The facts as you state in your letter are that the City
of Plea-s&t YGl,eg was Incorporatedsubsequ,ent to the last pre-
ceding general election at which pres’lheri%QL%%Wm?a were
elected. It will therefore be difficult to determine the 25%
requirement.
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Honorable Donald E. Short, Page 2 (C-263 )
If the law directs an officer or officers to order an e-
lection when a certain number of qualified voters have joined in
a petition, It Is the duty of the officers to ascertain whether
the requisite number of voters have joined In the petition and
whether they are qualified. However, the officials will be al-
lowed to exercise their own discretion in this matter, provided
that their decision Is based on reason and fairness and is not
Impelled by fraud or caprice. 21 Tex.Jur.2d 285.
The Montgomery County Clerk was faced with a similar
problem In 1946 in that the City of Conroe wanted to petition for
a local option election, and the two voting boxes used for gener-
al elections extended beyond the city limits. The result was
that there was no means of detenninlnghow many of the votes cast
at the last election for Governor, at which time PresidentialE-
lectors were elected, were actually voters presiding within the
city limits of Conroe. On that question this office held, in
Attorney General's Opinion No. o-7218, 1946, that the Cotinty
Clerk, whenever a petition called for under Article 666-32 Is
presented to him, may adopt any means he deems necessary and
proper to determine whether or not the signers of such a petition
are qualified voters of the county or polltlcal subdivisionand
to ascertain the number of qualified voters signing the same.
The earlier case Of Akersv. Remington, 115 S.W.28 71k (Tex.Civ
A& 1938
193gi are
error
lndism
acoo&.and Attorney General's Opinion ro. O-
Since the yardstick for deteklnlng qualified voters pre-
scribed by the statute cannot be calculated,It appears that
under the above authority, the County Clerk has the authority
to adopt fair and proper means to ascertain the qualifications
of petitioners.
E%yway of suggestion only, we point out that 25s of the
number of Inhabitantsof the town of Pleasant Valley before Its
incorporationthat now lies within the boundaries of the present \
City of Pleansant Valley who voted for Governor In the last
presidentialelection might be an equitable basis for determln-
lng the sufficiencyof the petition.
SUMMARY
Under the present circumstances,the
County Clerk of Wichita County may adopt any
means he deems necessary and proper to deter-
mine whether or not the signers of a petition
for a local option election In Pleasant Valley
are qualified voters under Art. 666-32, V.P.C.
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Honorable Donald E. Short, Page 3 (c-263 )
Yours very truly,
WAGGONER CARR
Attorney General of Texas
Assistant Attorney General
ESC:ls:br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Norman V. Suarez
Linward Shlvers
Charles B. Swanner
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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