. .
THEA~TORNEYGENERAL
OF TEXAS
June 26, 1962
Honorable James T. Flynt Opinion No. ~~-1356
County Attorney
Wood County Courthouse Re: Local option election
Qultman, Texas under Art. 666-32, P.C.;
questions pertaining to
Dear Mr. Flgnt: the petition.
You have asked the following questions pertaining to a
local optlon.election:
“1 . If affidavits In connection with signing
of petitions In wet-dry elections are not submitted
with the petition, Is such requirement mandatory or
directory upon the Commissioners’ Court?
“2. Is Article 666, Sec. 32, which states
that this article in regards to liquor elections
shall apply except where In conflict with the
Texas Election Code, than In conflict with the
Texas Election Code which does not require
exemption certificates or ;affldavits to vote,
and this affidavits are not mandatory upon exempt
petitioners In a liquor election.
”? Can the Commissioners Court call a liquor
electl:n at their discretion upon petitioned In
proper form except for attached affidavits of exempt
voters?
"4. Does the Commissioners’ Court have
authority to determine by any means at their dls-
posal to determine what number of voters will be
required to make up the 25 per cent as stated In
Article 666, Section 32, where the election Is called
in an Incorporated city and ths voting precincts of
said city encompass an area including said city and
surrounding territory?
"5. Once a petition for a wet-dry election has
been flied with the County Clerk, can said petition
be withdrawn from the county clerk’s office for the
purpose of attaching affidavits of exempt voters
and/or the submission of additional names on said
. .
Honorable James T. Flynt, Page 2, ~~-1356
petition If such Is prior to the return date on
the face of said petition?
“6 e Once the County Clerk has certified the
petition and that same Is sufficient, is such
certification binding upon the Commlssi.onert$
Court even though the requirements of Art. 666,
Sec. 32, reqlllrlng affidavits hasn’t been met?
“7. Once the Commissioners Court orders an
election as per Art. 666, Sec. 33, can said order
be set aside?”
Article 666-32, Penal Code, reads as follows:
“The Commissioners Court of each county In
the State, upon proper petition, shall order an
electloon wherein the qualified voters of such
county, or of any justice15 precinct or incorpo-
rated city or ,town therein, may by the exercise
of local option determine whether or not the
sale of alcoholic beverages of one (1) or more
of the various types and alcoholic content shall
be prohibited or legalized within the prescribed
limits of such county, justice’s precinct or
Incorporated city or town.
“Upon the written application of any ten
(10) or more, quailfied voters of any county, ’
justice’s precinct, or incorporated city or town,
the County Clerk of such county shall Issue to
the applicants a petition to be circulated among
the qualified voters thereof for the signatures
of those qualified voters in such area who
desire that a local option election be called
therein for the purpose of determining whether
the sale of alcoholic beverages of one (1) or
more of the various types and alcoholic content
shall be prohibited or legalized with the pre-
scribed limits of such county, justice’s precinct,
or incorporated city or town. The petition so
issued shall clearly state the issue to be voted
upon in such election, which shall be the same
issue as that set out in the application; eaCh
such petition shall show the date.:of Its Issue
by the County Clerk and shall be serially
numbered, and each page of such petition shall
bear the same date and serial number, and shall
. .
Honorable James T. Flynt, Page 3, ~~-1.356
bear the seal of the County Clerk. Ihe County
Clerk shall deliver as many copies of said
petition as may be required by the applicants,
and each copy shall bear the date, number and
seal on each page as required in the orlglhal.
The County Clerk shall keep a copy of each such
petition and a record of the applicants therefor.
When any such petition so issued shall within
thirty (30) days after the date of Issue be filed
with the Clerk of the Commissioners Court bearing
the actual signatures of as many as twenty-five
per cent (25%) of the qualified voters of any
such county> justice’s precinct, or Incorporated
city or town, together with a notation showing
the residence address of each of the said
signers, together with the number that appears
on his ~011 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 exemotion certificate, taking the votes for
Governor at the last preceding General Election
at which presidential electors were elected as
the basis for determining the qualified voters In
any such county9 justice’s precinct or Incorporated
city or town, It is hereby required that the
Commissioners Court at Its next regular session
shall order a local option election to be held upon
the Issue set out in such petition. It shall be the
duty of the County Clerk to check the names’of the
signers of any such petition, and the voting pre-
cincts In which they reside, to determine whether
or not the signers of such petition are In fact
qualified voters in such county, justice’s pre-
cinct, or incorporated city or town at the time
such petition is presented and to certify to the
Commissioners Court the number of qualified voters
signing such petition. No signatures shall be
counted, either by the County Clerk or the
Commissioners Court, where.there is reason to
believe It Is not the actual signature of’the
purported signer or that It is a duplication either
of name or of handwriting used in any other signa-
ture on the petition, and no signature shall be
counted unless the residence address of the signer
is shown, or unless It Is signed exactly as the
name of the voter appears on the official copy of
the current poll list or an official copy of the
current List of exempt voters, if the signer be
the holder either of a poll tax receipt or an
exemption certificate.
. .
Honorable James T. Flynt, Page 4, ~~-1.356:
"The minutes of the Commissioners Court shall
record the date any such petition is presented, the
names of the signers thereof, and the action taken
with relation to the same. In any election ordered
by the Commissioners Court the issue ordered to
appear on the ballot shall be the same as that
applied for and set out In the petition. No subse-
quent election upon the same Issue shall be held
within one (1) year from the date of the last
preceding local option election in any county,
justice's precinct, or incorporated city or town."
pmphasis addeg
The affidavits you refer to In vour first question are the
affidavits of persons who have signed,the petition who are entitled
to vote without holding either a poll tax receipt or an exemption
certificate. Voters who are exempt from paying a poll tax by
reason of being over 60 years ~of' age, and who redida in a city
of 10,000 inhabitants or more must have a current exemption
certificate In order to vote. Art. 5.16, Election Code. Voters
who are over 60 years of age, who do not reside In a city of
10,000 inhabitants or more, are exempt from paying a poll tax
and do not need an exemption certificate in order to vote. Thus
we have three classes of voters who may sign a local option
petition: (a) holders of current poll tax receipts, (b) holders
of current exemption certificates, and (c) those who are exempt
from paying the poll tax, and who are not required to hold a
current exemption certificate. Why does Art. 666-32, P.C., require
the signers of the petition who fall in categories (a) and (b)
above to note the number that appears on their poll tax receipt
or exemption certificate? It is obvious that the purpose of this
requirement is to assist the County Clerk and the Commissioners
Court in determining whether each signer of the petition is a
qualified voter, making it possible to verify that fact by check-
ing the records in the Tax Assessor-Collector's office. What
assurance does the Clerk or Commissioners Court have that one who
signs a petition who does not fall In either category (a) or (b)
has passed his 60th birthday, so as to qualify under category
(c)? Only the signatures of qualified voters may be counted, and
the affidavit is the only method provided by the statute to prove
up the qualification of those voters who live outslde a city of
10,000 inhabitants or more ,and who are exempt from paying the poll
tax. In answer to question No. 1, we hold that It is mandatory
that the affidavits be attached to or handed in with the petition
for those voters who are exempt from paying a poll tax and who
are not required to hold an exemption certificate, in order that
their signatures be counted.
Honorable James T. Flynt, Page 5, ~~-1356
Art. 666-36, P.C., provides:
"The officers holding such election shall, in
all respects not herein specified, conform to the
General Election Laws in force regulating elections
and after the polls are closed proceed to count the
votes and within twenty-four (24) hours thereafter
make due report of said election to the aforesaid
Court. The provisions of the General Election Laws
shall be followed in calling and conducting said
election where not inconsistent herewith."
In your second question you are concerned about the fact that
voters over 60 years of age who do not reside in a city of 10,000
inhabitants or more:,. frequently go to their polling places on
election day, do not have to show an exemption certificate, and
are given a ballot to mark and cast; whereas under Art, 666-32,
P.C., their affidavits are required in order for their signatures
to be counted. In most election precincts in rural areas and in
smaller towns the election judge will know the voters personally,
and will be well aware of the fact that a certain person offering
to vote in his precinct Is over 60 years of age. This accounts
for the election judge not requiring any affidavit from the voter.
But If there were any doubt in the election judge's mind about
the voter's eligibility to vote, such election judge could require
not only the oath of the voter, but of some other well known
resident of the precinct as well. Arts. 8.09 and 8.10, Election
Code.
Art. 666-32, P.C., is concerned with the petition while
Art. 666-36, P.C., applies to calling and conducting the election.
There Is no conflict with the Election Code and Art. 666-32, P.C.-
But if It could be said that the petition !,s a oart of the election
process, and if It could be said that Art. 666,-32, P.C., which
requires affidavits from exempt voters who have no exemption
certificate is in conflict with the Election Code, then Art.
666-36, P.C., provides that the provisions of the Texas Liquor
Control Act governing local option elections would be the appll-
cable law to follow. In answer to Question No. 2, we hold Art.
666-32, P.C., is the statute to follow In determining whether the
petition for the local option election Is In proper form.
Smith v. Counts, 282 S.W.2d 422 (Civ.App. 1955) holds that
the Commissioners Court mav not call a local ootion election uwon
Its own motion. Since we have held In answer to your first -
question that the attachment of the affidavits of exempt voters
who are not required to hold an exemption certificate is mandatory,
the signatures of such voters, without the necessary affidavits,
cannot be counted. If this reduces the number of valid signatures
below the number required by Art. 666-32, P.C., then there is no
Honorable James T. Flynt, Page 6, m-1356
authority to call the election, since the petition is insuffl-
cient . In answer to Question No. 3, we hold that the Commis-
sioners Court may not call the election, unless the number of
valid signatures on the petition meets the percentage required
by Art. 666-32, P.C.
In determining the number of signatures required on the
petition, Art. 666-32, P.C., requires that the Commissioners
Court use the number of votes cast..for Governor at the last
preceding General Election, at which presidential electors were
elected. For the county as a whole, If the local option election
shall be county-wide, this would present no problem. Generally
speaking, there ought not to be much of a problem In the ordinary
case of a justice precinct, since election precincts generally
conform to the boundaries of justice precincts, that Is, within
any one justice precinct there are usually one, two, three or
more whole election precincts. In the case of a city or town,
a different problem may be presented. Attorney General’s Opinion
No. S-27 holds that In cities with 10,000 Inhabitants or more
every ward of such cities shall constitute en electyon precinct,
with the exception af wards in which more than 2,000 votes were
cast In the last city election, and that no adjacent rural
territory should be Included in such precincts. Therefore, in
cities having a population of 10,000 Inhabitants or more there
will be no problem. Our problem comes in connection with cities
and towns with less than 10,000 Inhabitants, wherein an election
precinct may Include territory lying within the town and adjacent
rural territory. The Commissioners Court is called upon in such
a case to determine how many people voted for Governor within such
a town or small city, when there are no figures available which
Include only the town or city. Attorney General’s Opinion No.
o-7218 holds that whenever a petition is presented to the County
Clerk, he may adopt any means he deems necessary and proper to
determine whether or not the required number of voters have
signed the same, and by way of suggestion offers one possible
solution to the problem.
21 Texas Jurisprudence 2d, Elections, Sec. 53, page 285,
reads in part as follows:
“If the law directs an officer or officers
to order an election when a certain number of
quailfied voters have joined in a petition for
the same, it is made the duty of the officers to
ascertain whether or not the requisite number of
voters have joined in the petition and whether
they are qualified. However, the officials will
be allowed to exercise their own discretion in
this matter, provided that their decision is based
upon reason and fairness, and Is not Impelled by
fraud or caprice.”
Honorable James T. Flynt, Page 7, W-1356
Akers v. Remington, 115 S.W.2d 714 (Civ,App. 1938; error dism.)
was decided at a time when the Commissioners ,Cou~t:co~ld..bs’.the
express language of Art. 666-32, P.C., call a~ local option -
election on Its own motion. This language has been deleted from
Art. 666-32, P.C. Also at that time there was no requirement
that the voters list their poll tax receipt number, exemption
certificate number, or in lieu thereof sign an affidavit that
they are exempt from paying the poll tax, when. no exemption
certificate Is required. Nevertheless, If a petition was pre-
sented, it was the duty of the Commissioners Court to determine
if the required number of voters had signed. With respect to
that one point, we think the language of the Court at page 720
is still applicable here:
11 could adopt any
. . . !Phe con-missioners court
means It thought right and proper to ascertain . . .
whether or not 10 per cent of the qualified voters
. . . had signed it.“.*...!’
We answer Question No. 4 by holding that the Commissioners Court
may determine by any reasonable means what number of voters will
be required to constitute 25% of the voters who voted for Governor
In a city in the last preceding General Election, at which
presidential electors were elected, as required by Art. 666-32,
P.C.
We hold In answer to Question No. 5, that the petitions
should be complete within 30 days after their Issuance and cannot
thereafter be withdrawnfor the purpose of attaching affidavits
of exempt voters or the submission of:~additional~names. Attorney
General’s Opinion Wo. MS-261.
Art. 666-32, P.C., provides in part:
No signature shall be counted, either
a the’&uAty Clerk or the Commissioners Court,
where there is reason to believe it is not the
actual signature of the purported signer or that
it is a duplication either of name or of hand-
writing used in any other signature on the peti-
tion, and no signature shall be counted unless
the residence address of the.signer is shown, or
unless It is signed exactly as the name of the
voter appears on the official copy of the current
poll list or an official copy of the current list
of exempt voters, if the signer be the holder
either of a poll tax receipt or an exemption
certificate.
1,
. 0 . .” &?mphasis addeg
Honorable James T. Flynt, Page 8, ~~-1356
In answer to Question No. 6, we hold there is an equal duty on
the County Cler,k and the&mmlssloners Co’urt to ch&k the ‘peti-
tion,, and the Commlasioners Court, is, ‘not, bound by the certifl-
cation of the County Clerk.
In Powell v. Bond, 150 S.W.2d 337 (Clv.App. 1941) it was
held at page 340:
I,
Under the local option laws previously
in forEe’a;d effect, it was uniformly held that
‘It Is the pe,tltlon that confers upon the Commis-
sioners’ Court the jurisdiction to order the elec-
tion, 1 Prather v. State, 12 Tex.App. 401, point
page 404. That rule still applies. . . .’
In State ex rel. Burkett v. Town of Clyde, 18 S.W.2d 202
ICiv.Aoo. 1929, error ref.) the question was raised whether the
county-judge could order an incorporation election for a town of
less than 500 inhabitants, when the law required that there be
more than 500 inhabitants. Tne Court stated at page 203:
“The question naturally arises: Can the
county judge by ordering an election where there
are fewer than the requisite number of inhabitants,
thus set at naught the law with the effect that
redress will be denied to every one aggrieved by
such action? The test of the validity of such
action, we think, is good faith on the part of the
officer thus charged with the duty. The action of
the officer is at all times supported by a presump-
tion that he did what it was his duty to do. If the
judge orders such an election, knowing or having
good reason to believe that there does not exist
the requisite number of inhabitants, his act in
doing,,so would> no doubt, be held to be fradulent.
. * .
In City of El Paso v. Tuck, 282 S.W.2d 764 (C.lv.App. 1955,
error ref. n.r.e. J, th court in discussing the duty of the
County Judge when an izcorporktion petition is presented to him,
stated at page 766:
“There seems to be a general rule of law that
“‘In passing on petitions for elections and in
deciding whether or not to call an election, the
officer with whom such petition is filed performs a
judicial and not a ministerial function.’ 29 C.J.S.,
Elections, Sec. 6gr p- 92.”
. ‘
Honorable James T. Flynt, Page 9, W-1356
Perkins v. Ingalsbe, County Judue, Tex . 347
S.W.2d 926 (1961) concerned the power of KCountymie to
revoke an order of election for the incorporation of a town.
The Supreme Court of Texas stated at page 929:
“The first question to be answered is: Did
the County Judge have the power to revoke his
election order and thus stop the election, so
as to prevent those residents of Impact from
expressing their preferences as to whether or
not the area should be incorporated? We hold that
because the petition was in due and legal form in
compliance with the statutory requirements, and
because the respondent had a hearing on the peti-
tion and found the statutory requirements present,
and ordered the election and posted notices re-
gulred by law, It follows that the election
process was lawfully put in motion and the County
Judge could not prevent Its being carried to its-
conclusion. . . .‘I Emphasis addeg
In answer to Question No. 7, we hold that the action of the
Commissioners Court, in passing on the sufficiency of the petition
and calling the election, Is a judicial function. Therefore, such
Court may, during the same term of court at which the order call-
ing the election was issued, set aside its previous order. After
the term of court during which the.,order was signed has expired,
the Commissioners Court may not set aside its order of election.
Attorney General’s Opinion No. O-2577 is overruled insofar as it
holds that the calling of a local option election by the Commis-
sioners Court is an administrative function.
SUMMARY
It Is mandatory that the affidavits be attached
or handed.in with the petition for those voters who
are exempt from paying a poll tax and who are not
required to hold an exemption certificate, in order
that their signatures be counted. Art. 666-32, P.C.
Art. 666-32, P.C., is the applicable statute
to follow In determining whether the petition for
the local option election is In proper form. There
IS no conflict between Art. 666-32, P.C., and the
Election Code. Art. 666-36, P.C.
The Commisalonecs Court may not call a local
option election, unless the number of valid slgna-
tures on the petition meets the percentage re-
quired by Art. 666-32, P.C.
Honorable James T. Flynt, Page 10, ~~-13%
The Commissioners Court may determine by any
reasonable means what number of voters will be re-
quired to constitute 25% of the voters who voted
for Governor In a city in the last preceding
General Election, at which presidential electors
were elected, as required by Art. 666-32, P.C.
The petitions should be completed within,30
days after their Issuance and cannot thereafter
be withdrawn for the purpose of attaching
affidavits of exempt voters or the submission
of additional names.
There is an equal duty on the County Clerk
and the Commissioners Court to check the petition,
and the Commissioners Court is not bound by the
certification of the County Clerk.
The action of the Commissioners Court in
passing on the sufficiency of the petition and
calling the election is a judicial function.
Such Court may, at the same term of court during
which the order calling the election was issued,
set aside its previous order. After the term
of court during which the order was signed has
expired, the Commissioners Court may not set
aside its order of election.
Yours very truly,
WILL WILSON
Attornes General of Texas
By 4%++=-
Riley Eugene Fletcher
pssistant
REF: ca
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Elmer McVey
Ernest Fortenberry
Iola Wilcox
Frank Booth
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore