Untitled Texas Attorney General Opinion ( 1965 )


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  •                              May   12,   1965
    Honorable Earle D. Garrison              Opinion tie.C-439
    County Attorney
    Rsylor County                            Re: Deadline for withdrawal
    Seymour, Texas                               of slgnatures from petltlon
    for local option election
    on sale of alcoholic
    Dear Sir:                                    beverages.
    Yom   request 'foran opinion is based on the following
    facts:
    On March 16, 1965, the County Clerk of Baylor
    County Issued a petition, as~provldedln Articles 666-32,
    Vernon's Penal Code, for a local option election on sale
    of:alcohollcbeverages, to be held in Justice Precinct
    No. 3 oftBaylor County. This statute requires that the
    completedpetition be returned and filed within 30 days
    after issuance. The petition, containing 28 signatures,
    was filed with the County Clerk.on April 14, 1965.    On
    April 26, 1965;aft,er expiration of the 30-day period
    but.'beforethe CommissionersCourt had taken action on
    the petition, one of the signers filed an affidavit
    requestingthat his signature be withdrawn. The number
    of signaturesrequired on the petition is 28, and with-
    drawal of one signature would render the petition in-
    sufficient.
    Your question Is whether the signer of a.petition filed
    under Article 666-32 may,withdraw his signature after expiration
    of the x0-day period for filing the petition.
    Article 666-32   states in part:
    'I+* * men a    such petition so Issued shall
    within thirty (3   days after the date of issue be
    filed with the Clerk of the CommissionersCourt
    bearing the actual slgnaturek 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, * * * it 1s hereby required that the.
    Commissioners Court at Its next regular session shall
    order a local option election to be held upon the
    -2086
    . .
    Honorable Earle D. Garrison, Page 2      (C-439)
    issue set out in such petition. * + *' (Emphasis added.)
    In an unnumhcrcd    I.cttr!ropl.nl,on of the Attorney Gcncral'c
    ()l'('lc:c:
    r',!,ltl<:I'c:~l
    I.0lic,rlc,,':ll,
    I,:Tom I:l:lc:I(wc:l'l
    , (:crurll..y
    Al.I;~ll*ll~~y
    CJl
    Trav13 County, on September    I’j, 1956,  the I'ollowln$;quc:iI.l.on :
    was asked in regard to a petition filed under Article 666-32:
    "Once a slgnature has been properly placad on the petition
    and the petltlon filed wlth the County Clerk. can the slgner
    have his name cancelled?" The opinion stated, without dls-
    cussion or citation of authority. that 3 pcrcon m;ly wlthclrnw
    his signature "at any time prior to the time offlclal octlon Is
    taken on the petition by the Commissioners Court." From our
    study of the question, we have concluded that this holding was          1
    in error'insofaras it recognized a right to withdraw after
    expirationof the time limit fqr filing the petition. '~
    In Texas Power & Light Co. v. Brownwood Public Service
    co., 87 S.W.2d~557 (Tex.Clv.App.1935), the questlon before the
    court was when the right of withdrawal expired with respect to a ,
    petition for a referendum election on the granting of a franchise :
    by the city council. .Article1181, V.C.S., required the~clty        j
    council to call an election where a sufficient petition requestlw :
    the election was submitted before the date fixed for the franchisei
    ordinanceto take effect. Subsequent to that date but before the
    city council had acted on the petltlon, a number of signers at-
    tempted to wlthdraw their slgnatures. The court held that~In the
    absence of a showing of good cause such as fraud or mistake, the
    right of withdrawal expired upon expiration   of the time limit for T
    filing the petition* since It would be unfair   to permit withdraw- 1
    als at a time when additions could not be made. The court dls-      ;
    tlnguishedthe earlier case of Stahl v. Miller, 63 SrW.2d 578
    (Tex.Civ.App.1933, error ref.), which had used language suscep-
    tlble of the construction that signatureson a referendum elec-      :
    tlon petition filed under Article 1181 could be withdrawn at
    any.tlmebefore the city coun'cllacted on the petition. In the       !
    stahl case, the request for withdrawal had been presented to the
    city council, and the council had acted on the petition, before
    explrationof the period for filing the petition. Consequently,
    It had been unnecessary for the court to consider whether a re-
    quest for withdrawal which came after expiration of the deadline ;
    for filing the petition would have been timely.
    The Texas Power and Light Co. case was,followed in Nunn           :
    v. New, 
    222 S.W.2d 2bl
    (Tex.Civ.App.1949, reversed on othe7
    grounds, 
    148 Tex. 443
    , 
    226 S.W.2d 116
    ). So far as we have been
    able to find, there have been no other Texas decisions on the
    questlonof withdrawal of signaturesfroman election petitlon.
    -2087-
    WC think the holding In the TP&L case Is controlling in the
    present situation, and accordinglywe answer your question in
    the negative. The opinion rendered by this office on Septem-
    ber 13, 1956, Is overruled to the extent that it conflicts
    with this opinion.
    SUMMARY
    :
    The signer of a petition for a local option
    'electionon the sale of alcoholic beverages may
    not withdraw his signature from the petition after
    the 30-day time limit for filing the petition has
    expired. Unnumbered Attorney General's opinion
    dated September 13, 1956, Is overruled to the ex-
    tent of conflict with this opinion.
    Yours very truly,
    WAGGONER      CARR
    Attorney General
    RYm
    Mary2aF'&-
    .
    Assistant’
    Mxw:sj:zt
    APPROVEI&
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    J. C. Davis
    H. Grady Chandler
    W. 0. Shults
    Brady Coleman
    APPROVED FOR TRE ATTORNE!l GENEXAI,
    BY: Stanton Stone
    -2088-
    

Document Info

Docket Number: C-439

Judges: Waggoner Carr

Filed Date: 7/2/1965

Precedential Status: Precedential

Modified Date: 2/18/2017