THE ATTORNEY GENEZUE
OF TEXAS
Honorable Oscar William Loyd, II Opinion No. JM-1133
Criminal District Attorney
P. 0. Box 216 Re: Certification of a
Gilmer, Texas 75644 petition and financing
of a local option elec-
tion under the Alcoholic
Beverage Code (RQ-1865)
Dear Mr. Loyd:
You ask two questions about local option liquor elec-
tions. Your first question concerns the interpretation of
section 251.10 of the Alcoholic Beverage Code (the code).
That section prescribes the requirements for counting
signatures on a petition requesting a local option liquor
election. Subsection (b) of that section provides:
(b) No sianature mav be counted, either
by the registrar or commissioners court,
where there is reason to believe that:
(1) it is not the actual signature
of the purported signer:
(2) the voter registration certi-
ficate number is not correct;
(3) the voter registration certi-
ficate number is not in the actual hand-
writing of the signer:
(4) it is a dualication either of a
fl other
sianature on the oetition;
(5) the residence address of the
signer is not correct or is not in the
actual handwriting of the signer; or
(6) the name of the voter is not
signed exactly as it appears on the
p. 5962
Honorable Oscar William Loyd, II - Page 2 (JM-1133)
official copy of the current list of
registered voters for the voting year in
which the petition is issued. (Emphasis
added.)
Specifically, you ask whether the language underlined above
requires that each entry that appears to violate subsection
(b)(4) is to be disregarded in determining the sufficiency
of the petition signatures or whether the first entry in a
questionable series may be counted as a valid signature.
You offer the example of a voter who signs his name on a
petition more than once, and ask whether the first entry is
a "duplication."
In an eailier opinion of this office, the provisions of
section 251.10(b)(6) were determined to be unambiguous and
mandatory. Attorney General Opinion JM-501 (1986). The
registrar of voters has no authority to waive the signature
requirements of that subsection. Id. By its terms, sub-
section (b) states that "BQ signature may be counted" under
certain circumstances. We do not believe that the language
prohibiting duplicative names or handwriting can reasonably
be construed to allow the counting of the "original*' or
first name in a series and to disallow the subsequent
entries. The plain meaning of subsection (b)(4) is that
each name that appears more than once and each name that
appears to be written in the same handwriting is void.
Several definitions that support our reading of sub-
section (b)(4) are found in Webster's Ninth New Collegiate
Dictionary, which defines "duplicate" as:
being the same as another . . . either of two
things exactly alike and [usually] produced
at the same time or by the same process
. . . one that resembles or corresponds to
another.
Thus, it is our opinion that all of the signatures or names
in a series that appear to violate subsection (b)(4) are to
be disregarded in verifying a petition regardless of the
order in which they may appear on the petition.
Your second question relates to the payment of expenses
in an election held pursuant to the code. Section 251.40
provides that county expense is limited to the holding of
only certain local option liquor elections per year. It
also authorizes the county to obtain reimbursement for
election costs in cities or towns within the county.
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Honorable Oscar William Loyd, II - Page 3 (JM-1133)
Section 251.41 requires a deposit before the issuance of a
petition for elections when the county, is not required to
pay the expenses under section 251.40. In its entirety,
section 251.40 provides:
(a) Subject to the limitations set forth
in Subsections (b) and (c) of this section,
the county shall pay the expense of holding a
local option election authorized by this code
in the county, justice precinct, or incor-
porated city or town in that county, pro-
vided, however, that if an election is to be
held only within the corporate limits of a
city or town located wholly within the county
and not elsewhere, the county may require the
incorporated city or town to reimburse the
county for all or part of the expenses of
holding the local option election.
(b) County expense is limited to the
holding of one election in each of the
political subdivisions in Subsection (a) of
this section in a one-year period where the
intent
- ^of - the
. _.election
. is to legalize the
Sale or alcOnollC beverages. County expense
is limited to the holding of one election in
each of the political subdivisions in Sub-
section (a) of this section in a one-year
period where the intent of the election is to
prohibit the sale of alcoholic beverages.
(c) All other local option elections
shall be paid by the county from funds
derived by the county as prescribed in
Section 251.41 of this code.
Section 251.41 provides:
(a) If under Section 251.40 of this code
the county is not required to pay the cost of
the election, the county clerk shall require
a deposit before the issuance of a petition
for a local option election.
(b) The deposit must be in the form of a
cashier's check in the total amount of 25
cents per voter listed on the current list of
registered voters residing in the county,
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Honorable Oscar William Loyd, II - Page 4 (JM-1133)
justice precinct, or incorporated city or
town where the election is to be held.
(c) The money received shall be deposited
in the county's general fund. No refund
may be made to the applicants regardless
of whether the petition is returned to the
county clerk or the election is ordered.
(d) The county clerk may not issue a
petition to the applicants unless the deposit
is made, if a deposit is required by this
code.
(e) A violation of Subsection (d) of this
section is a misdemeanor punishable by a
fine of not less than $200 nor more than
$500, or confinement in the county jail for
not more than 30 days, or both.
Specifically, you inquire about the 25 cent per voter
deposit requirement prescribed by section 251.41(b). You
ask what the legislative intent was in requiring the deposit
and whether the county must hold an election for which the
deposit is inadequate.1
This deposit provision was added to the statute in
1967. The documents relating to the legislation which
established the deposit requirement did not reveal the logic
used by the legislature in selecting the 25 cent per voter
amount. Subsection (c) of that section provides that the
deposit will be placed in the county's general fund; no
refund is allowed whether the petition is returned or an
election is held. The legislature must have envisioned the
county receiving deposits, on occasion, that would not be
expended in a particular election. The section does not
provide for the collection of additional funds from the
petitioner after the actual election expenses have been
incurred. Subsection (a) of section 251.41 makes the
deposit a condition precedent to the issuance of a petition,
not the ordering of the election.
1. You do not inquire about, nor do we address, any
question as to the constitutionality of the 25 cent per
voter deposit requirement.
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Honorable Oscar William boyd, II - Page 5 (JM-1133)
We think the provisions contemplate that a fund will be
maintained from deposits collected and that the costs of
elections for which deposits are required under section
251.41 shall be paid from that fund (except to the extent
reimbursement of. expenses required by the county under
section 251.40(a) covers ,said costs) . Thus, it _ is
irrelevant under the statute if the deposit for a particular
election does not cover its cost, since the statute
contemplates that the costs will be paid not from that
particular deposit but rather from the fund accumulated from
all deposits past and future. If the fund is inadequate to
pay for an election, the.costs of which are required by the
statute to be paid from the fund, then we think the county
must wait until the fund is replenished by future deposits
to recoup any county money proper which had to be spent as a
consequence of the fund's depletion. Whether the applicable
provisions should be amended to provide for increased
deposits so that an adequate fund will be maintained is of
course a matter for the legislature.
In our opinion, a county may not refuse to hold an
election pursuant to sections 251.40 and 251.41 merely
because the 25 cent per voter deposit required for the
petition for that election may prove insufficient to cover
the cost of the election.
SUMMARY
All signatures or names in a series that
appear to violate Alcoholic Beverage Code
section 251.10(b)(4) are to be disregarded
in verifying a petition for a local option
liquor election.
A county may not refuse to hold
election pursuant to sections 251.40 a::
251.41 of the Alcoholic Beverage Code because
the 25 cent per voter deposit is insufficient
to offset the county's expenses in conducting
the election.
Jz&?&G
Attorney General of Texas
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Honorable Oscar William Loyd, II - Page 6 (JM-1133)
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
Pa 5967