Untitled Texas Attorney General Opinion

Honorable Compton White County Auditor Fre’estoneCounty Fairfield, Texas Dear Sir: Opinion No. O-3473 Re: Whether the commissioners’ court catilegally order a- loc.5~1 option election to be he,ldJune 28, 1941, date of the special senatorial election, with the same election judges and clerks; and another related question. Your letter of April 2$th, requesting an opinion of this Department, reads as follows: “A petition will be presented to the commissioners’ court of Freestone County on May 12th, 1941, to order a beer election In’Freestone County. If this election Is ordered it would necessarily have to be held by June 2nd, 1941. CciuLtlithe court legally pass this petition to June 9th and order the election held June.28th, the date set for the election of a United States Senator, using the same election judges and clerks to hold both elections. In our county budget for the year 1941 I caloulated and the commlssionersf cmrt approved funds for.holding one election in 1941. Would it be within my power in enforoing compliance with the county budget to require the oommisaionersl court to declare an emergency to pay for the beer electi;;el;othe event it Is held before the Senatorial election? the fact that the senatorial election has already been ordered I sm taking the position that funds set up in our budget for election expense are already obligated and that any other charge against our budget for eleotion will have to be classed as an emergency by the commissioners’ court. An early reply to the above questions will be appreciated.” Article 666-32, Vernon's %notated Penal code, provides: *The ‘ommissioners Court of each county in the State upon its _ - Hon. Compton iihite,page 2, O-3473 own motion may order an election to be held by the qualified voters in said county, to determine whether or not the sale of liquors shall be prohibited or legalized in such county, and such Court shall order a local option election whenever petitioned to do so by an many as ten (10) per cent of the qualified voters of said county, or of any justice precinct, city or town, taking the votes for Governor at the last preceding general election as the basis for determining the qualified voters in any such county, or political subdivision. After the first local option election held as provided In this Act, in any county9 justf,ceprecinct, incorporated town, or city, no subsequent election upon the same issue in the same political subdivision shall be held within one (1) year from the date of the preceding local option election in said oountys or said political subdivision of said county." Artfole 666-33 of said Code provides: "When the Commissioners Court shall order an election as herein provided for, it shall be the duty of said Court to order such election to be held at the voting places within such subdivision or county upon a day not less than ten (10) nor more than twenty '20) days from the date of said order,, and the.order thus made shall express the object of such elea- '"'tion'andshall be held to be prima facie evidence that all the provisions necessary to give It validity or to clothe the Court with jurisdiction to make it valid, have been duly oom- plied with, provided that said Court shall appoint such offi- cers to hold such elections as now required to hold general elections." Article 666-34 of the Code provides that the election shall be held and the return-thereof made in conformity with the provisions of the General Laws of the State, and by the election officers appointed and qualified under euoh laws; and Article 666-36 provides that the holding of the election by the officers shall conform to the General Election Laws in force regulating elections. ,. Article 666-36 of said Code provides% "The officers holding such eleotion 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 three (3) days 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." Hon, Compton White, page 3, O-3473 Article 666-40 of the Code provides that the Commissionn&f Court upon petition asprovided shall order as>provided in.. Article 666-32, supra, local option elections for the purpose of determining whether alcoholic beverages of the various types and alcoholic oontents shall be legalized or prohibited. Under Chapter 12, Article 3088, Vernon's Annotated civil Statutes, it is provided that every law regulating or in any mahner governing elections or the holding of primaries in this State shall be held to apply to each electfon of a candidate for a United States Senator so long as they.are not in conflict with the United States Constitution or Laws of Congress regula- ting the election of senators or the provisions of Chapter 12. This chapter, relating to filling the office of united States Senator, expressly designates an electionheld for the purpose of filling a vacancy in the Senate as a special e$e,&t4on. In holding a local option election the commissioners' court is required to appoint such officers to hold.~Phe&&sGtion as now required to hold general elections. At this special election to fill the vacancy in the United states Senate, it is expressly provided that every law regulating or in any manner governing elections in this State shall apply. wb find no prohibition against the holding of a local option election on the same day a special election to fill the vacancy in the United States Senate is held. It has been held by this Depart- ment that a local option election may be held on the same day at which a general election is held. See Opinion No. O-2853, yo,lume2, p. 330, fieportsof the Attorney General, 1940. As to the conduet of the two elections on the same day, we run into some difficulty. We held in a recent opinion, O- 3438, approved May 21st, 1941$ a copy of which is hereto at- tached, that the forthcoming senatorial election to fill a vacancy, being a special election, the proviso of Article 2938, Revised Civil Statutes, 1925, which provides for the appointment of one presiding judge, one assistant judge and two clerks to be appointed 'by the commissioners' court, con- trols. Such provision, however, in so far as fixing the official's compensation, no 1onEer controls but is superseded by Article 2943, Vernon's Annotated civil Statutes, with the amounts fixed in the later statute controlling. Since the 'election judges and cler$s to be appointed for the special senatorial election are ssparate and distinct from those authorized to conduct general elections, local option elections and primary elections as regularly appointed under Articles 2937 and 2938, Revised Civil Statutes, 1925, the can- duct of both elections by the same officials, should they be held on the same day, is not authorized. It will further be Hon. Compton Uhite, page 4, O-3473 noted that not only the presfding and assistant judges, but the two clerks are to be appointed by the commissioners court under the controlling provision. Should both a local option election and the forthcoming sena- torial or special election be held on the sgme day, it being our view that separate election judges and clerks to conduct the elections would be required, it naturally follows that sep'arateand distinct ballot boxes should be used. The Texas Liquor Control Act or the above mentioned statuges ado not require the commissioners' court to order the election the same day the required petition is presented. #whenthe court acts upon said petition, and we think the law requires the court to act within a reasonable time, the statutes re- quire a date to be set not less than ten (10) nor more than twent (20) days from the date of said order, (Article 666-33, supra?I Article 689a-11, Vernon's Annotated Civil Statutes, in part, provides: . . . The Court shall have authority to make such changes in the budget as in their judgment the law warrants and the interest of the taxpayers demand. When the budget has been finally approved by the Commissioners' Court, the budget, as a:qprovedby the Court shall be filed with the Clerk of the 'CountyCourt, and taxes levied only in accordance therewith, and no expenditures of the funds of the county shall thereafter be made except in strict compliance with the budget as adopted by the Court. 'Except that emergency expendftures, in case of grave publfc necessity, to meet unusual and unforeseen condf- tions which could not, by reasonably dilfgent thought and attention, have been included in the original budget, may from time to tSme be authorfzed by the Court as amendments to the original budget. In all.cases where such amendment to the original budget is made, a copy of the order of the Court amendIng the budget shall be filed with the Clerk of-the County Court, and attached to the budget originally adopted." Article 689a-20, Vernones Civil Statutes, ;provides: "Nothing contained in this Act shall be construed as precluding the Legislature from making changes in the budget for State purposes or prevent the County Commissioners' Court from making changes in the budget for county purposes or-,preventthe governing body'of any incorporated city or town from making changes in the budget for city Furposes, or prevent the trustees or other school governing body from making changes in Hon. Compton White, page 5, O-3473 the budgeta for school purposes; and the duties required by virtue of this Act of atate, County, City and School Officers or Representatives shall be performed for the compensation now provided by law to be paid said Officers, respectively.” Relative to ‘yoursecond question, we held in our opinion No.& 2315, approved June 6, 1940, that the disbetion exercised by the commissioners’ Court in declaring an emergency for amend- ing the budget was final and should not be questioned by the auditor except only where the question is debatable or where the existence of an emergency is questionable. According to your letter sufficient funda for holding an election were set up in the 1941 budget. No importance can be attached to th.efact that at the time suoh funds were set up the commissioners’ court of your,county possibly anticipated a looal option election. Should the court, exercising its discretion, order said local option election to be held prior to the forthcoming special senatorial election, the expense of the first election could not be held an emergency under the budget law with funds on hand and previously set up therein. The ‘obligation of such funds is not determined by the priority of the order calling an election but by the date upon which an election is first held and expenses incurred therefore As to your first question, it is the opinion of this .Bepartment that it is within the discretion of the commissioners! court to order a local option election to be held on the same date as that upon which the forthcoming special senatori~alelection is to be held; provided such election is authorized under the law and is ordered within a reasonable time after the petition is presented containing the requisite number of qualified voters. Should the two elections be so held, the officials generally appointed to hold a local option election could not at the s&me time conduct the special senatorial election, the holding of which in each voting precinct requires the appointment of a presiding judge, as assistant judge and t,wo clerks by the commissionerst court. Answering your second question, it is our opinion that under the facts presented, the county auditor could not require the com- missioners’ court to declare an emergency to pay for a local option election validly held previous to the special senatorial election called and set for June 28, 1941. However, the com- missioners' court would be empowered to declare an emergency and amend the budget so as to provide funds for the second election. Hon. Compton White, page 6 Yours very truly, ATTORNEY GENERAL OF TEXAS s/ 'i{rn-J. R, King BY WnlK:N/cg Wm. J. R. King .Assistant APPROVED MAY 26, 1941 s/ Grover Sellers FIRST ASSISTANT ATTORNEY GENiEAL Approved opinion committee BY Bm, Chairman