Untitled Texas Attorney General Opinion ( 1970 )

November 5, 1970
Ronorable Burton S. Burks
County Attorney, Hood County
Granbury, Texas 76048
Opinion NO. !I-724
Re : Refund of monies paid under
Article 666-32 l/2 (b) Vernon's
Penal Code, for calling of
Dear Mr. Burks: local option election.
You have requested an opinion from this office regard-
ing whether monies paid under Article 666-32 l/2 (b), Vernon's
Penal Code, by a private individual for calling a local option
election,must be refunded to this individual when the county
has not had a local option election for several years prior
to the recent election in question.
Article 666-32 l/2, Vernon's Penal Code is set out
in full as follows:
"Art. 666-32 l/2. Expense of holding elections
(a) The expense of holding any local
option election authorized by the Texas
Liquor Control Act in any county, justice
precinct or incorporated city or town shall
be paid by the county, but the expense to
the county shall be limited to the holding
of one election in each of the above poli-
tical subdivisions within a one-year period
where the intent of the electron 1s to le-
galize the sale of alcoholic beverages, and
the expense to the county shall be limited
to the holding of one election in each of
the aforesaid political subdivisions within
a one-year period where the intent of the
electron is to gohibit the sale of alco-
holic beverages. All other local option
electlons, excepting the aforementioned
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Honorable Burton S. Burks, Page 2 (M-724)
as prescribed Subsection;
in ..,,-
__._-,_,__ (b) of this
_I-..-.
section as follows:
(b) When the application for an
election in a county, justice precinct
or incorporated city or town is presented,
the county clerk at the time and before
the issuance of any petition for a local
option election s!lall require a deposit
in the form of a cashier's check in the
aggregate amount of twenty-five cents
per voter listed on the current list of
registered voters as residing in the
county, justice precinct or incorporated
city or town for which the election is
sought. The money so received shall be
deposited in the county's general fund,
and no refund shall be made to the appli-
cants regardless of whether the petition
is returned to the county clerk or t!lc
election is ordered. When there is
presented to the county clerk an appli-
cation which
--- must -,__.-,
.._- be accompanied by a
deposit, the county clerk shall not
Esza' petition to the applicants un-
less and until the deposit is made, and
a county clerk who issues a petition
upon sucll an application without first
receiving the deposit is guilty of a
misdemeanor and shall be fined not less
than two hundred dollars nor more than
five hundred dollars, or imprisoned in
the county jail for not more than 30
days, or both fined and imprisoned."
(Emphasis added.)
The 60th Legislature passed and the Governor approved
Senate Bill No. 58 (Acts 60th Leg., R.S. 1967, Ch. 723, p. 1858),
which was entitled Election Code Revision; and in this lencthy
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Honorable Burton S. Burks, Page 3 (E-1-734)
bill, as Section 12 thereof, the Texas Liquor Control Act was
amended by adding a new section codified as Article 666-32 l/2,
Vernon's Penal Code, set out above. The caption of Senate
Bill No. 58 refers to this section in the following language:
"* * * . . .and adding Section 32 l/2,
Article I, Texas Liquor Control Act,
relating to payment for the expense of
holding such elections and providing
a penalty for issuance of a petition
for an election under certain circum-
stances: * * * *n
The cardinal rules of statutory construction appli-
cable here require that when a statute is susceptible of more
than one construction it will be interpreted as to best secure
the benefit intended: will best effect the leqislative intent
and so that it will be constitutional and valid. Newsom v.
State, 372 S.W.2d 681 (Tex. Crim. 1963). Once the legislative
intent is ascertained, it should be given effect, even though
the literal meaning of the words used therein is not followed.
Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939), 121 A.L.R. 931.
If Article 666-32 l/2 (b), Vernon's Penal Code, were
to be interpreted as compelling a deposit to be made with the
county clerk with every application for a local option election,
regardless of whether such a local option election has been
held in the immediate prior one-year period, such an inter-
pretation would defeat the exception underlined in paragraph (a)
of the Act above, which places the expense of the local option
election on the county if no such election had occurred in the
prior one-year period. This construction would in effect change
this statute into an "application fee" statute, and because of
the failure to adequately describe it as such in the caption
of the legislative act in which it was included, that construc-
tion would render it invalid, Art. III, Sec. 35, Constitution
of Texas.
The more appropriate and proper construction of this
statute is that the underlined portions of paragraph (a) of
the statute, as set out above, clearly mean that if there has
been no local option election in the preceeding one-year period,
the expense of the election is that of the county and only if
there has been such an election in the prior one-year period,
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Honorable Burton S. Burks, Page 4 (M-724)
in that political subdivision, then the paragraph (b) require-
ment for a deposit becomes mandatory. The clause underlined
in paragraph (b) above recognizes that there are applications
which must be accompanied by a deposit and by implication
recognizes that there are applications which do not require
such deposits.
Based on the foregoing analysis, it is our opinion
that the private individual calling for a local option election
in a political subdivision that has not had such an election in
the preceeding one-year period should not have been required
to make a deposit with the county clerk and that such deposit
should be refunded by the county clerk to the payor.
s rJ I? PI A
------.-,-- R Y
A deposit made with the county clerk
pursuant to Article 666-32 l/2 (h), Vernon's
Penal Code, with an application for a "local
option election" in a county which has not
had such an election in the preceedinq one-
year period, should be refunded to the
depositor. ';
Very truly yours,
Prepared by Robert Giddings
Assistant Attorney General
APPROVED
OPINION COMXTTEC
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jay Floyd
John Reeves
Rex White
Fisher Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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