Untitled Texas Attorney General Opinion

ATTORNEYGENERALOF TEXAS

GREG ABBOTT

June 29,2004

The Honorable Frank Madla Opinion No. GA-0209

Chair, Intergovernmental Relations Committee

Texas State Senate Re: Whether local election officials had the

Post Office Box 12068 discretion to accept or reject signatures on local

Austin, Texas 7871 l-2068 option election petitions filed prior to the

effective date of the 2003 amendments to the

Alcoholic Beverage Code when the signatures

were withdrawn by affidavit, or when the

signatures appeared on the back side of a

petition signature sheet from which certain

statutory elements were absent (RQ-0159-GA)

Dear Senator Madla:

You ask two questions about local election officials’ discretion to accept or reject signatures

on local option election petitions that were filed pursuant to chapter 251 of the Texas Alcoholic

Beverage Code (the “Code”) as it existed prior to 2003 legislative amendments.’

Your first question specifically asks:

Do local election officials have the discretion not to accept, or count as

qualified, the local option election Petition signatures of those voters who have

timely demanded the withdrawal of their Petition signatures by affidavits received

by an election officer on or before the Petition filing deadline?

Request Letter, supra note 1, at 1. Even though relevant portions of chapter 25 1 were amended

during the last regular legislative session, see Act of May 22,2003,78th Leg., R.S., ch. 1047, § 7,

2003 Tex. Gen. Laws 3007,3008-09, the act that amended those portions was prospective, see id.

9 13,2003 Tex. Gen. Laws at 3010. Your questions concern petitions filed before the effective date

of that act. See Request Letter, supra note 1, at 1 (“Concerning petitions issued and submitted for

certification prior to September 1,2003 . . . .“). Accordingly, the law in effect immediately before

the effective date of that act governs. See Act of May 22,2003,78th Leg., R.S., ch. 1047,§ 13,2003

Tex. Gen. Laws 3007,301O; see also TEX. ALCO. BEV. CODE AN-N.$25 1.10, historical and statutory

notes (Vernon Supp. 2004).

‘See Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate,

to Honorable Greg Abbott, Texas Attorney General, at l-2 (Dec. 22, 2003) (on file with Opinion Committee, also

available at http://www.oag.state.tx.us) Fereinafier Request Letter].

The Honorable Frank Madla - Page 2 (GA-0209)

Chapter 25 1 provides for a local option election by petition to determine whether or not a

county, justice precinct, or incorporated city or town will legalize or prohibit the sale of alcoholic

beverages. See TEX. ALCO. BEV. CODE ANN. $ 251.01 (Vernon 1995). Local option election

petitions that were subject to the pre-amendment law generally had to be filed within 30 days from

the date they were issued and had to contain qualified voters’ actual signatures that equaled 35

percent of the number of registered voters within the political subdivision.2 The Code still requires

that the commissioners court at its next regular session after the petition has been timely filed and

verified is to order a local option election to be held on the issue set out in the petition. See TEX.

ALco. BEV. CODE ANN. $25 1.11 (a) (Vernon Supp. 2004).

The pre-amendment Code provided guidelines for verifying signatures of a local option

petition, see Act of May 26, 1983,68th Leg., R.S., ch. 539,§ 1, sec. 215.10,1983 Tex. Gen. Laws

3138,3138, but it did not provide for signature withdrawal. Texas law, however, recognized the

common-law right of signature withdrawal. See, e.g., Clear Creek Indep. Sch. Dist. v. Comm ‘r of

Educ., 775 S.W.2d 490,494 (Tex. App.-Austin 1989, no writ); Stahl v. Miller, 63 S.W.2d 578,579-

80 (Tex. Civ. App.-Amarillo 1933, writ ref’d).3 This right was limited in that it had to be exercised

during the requisite time in which the petition could be filed. See Tex. Power & Light Co. v.

BrownwoodPub. Serv. Co., 87 S.W.2d 557,558-59 (Tex. Civ. App.-Austin 1935, no writ); see also

Nunn v. New, 222 S.W.2d 261,265 (Tex. Civ. App.-Galveston 1949), rev’d on othergrounds, 226

‘See Act of May 6, 1977, 65th Leg., R.S., ch. 194, § 25 1.11, 1977 Tex. Gen. Laws 391, 548. The requisite

number of qualified voters’ actual signatures changed if the petition was for a local option election that was related to

the legalization of the sale of mixed beverages only in an establishment that held a food and beverage certificate, see Act

ofMay21, 1999,76thLeg.,R.S.,ch. 848, $ 1,sec. 251.11, 1999Tex. Gen. Laws3513,3513-14, orifthepetitionwas

for a local option election that was related to the legal sale of wine on the premises of the holder of a winery permit. See

Act of May 22, 2001, 77th Leg., R.S., ch. 1001, 0 4.01, sec. 251.11, 2001 Tex. Gen. Laws 2177, 2181. In those

instances, the required number for the former was 25 percent of the registered voters in a political subdivision, and for

the latter, 25 percent of the registered voters in the political subdivision that voted in the most recent general election.

See id., as amended by Act of May 22,2003,78th Leg., R.S., ch. 1047, $9 8,12,2003 Tex. Gen. Laws 3007,3009-10.

3Most states recognize this common-law right. See generally M. L. Cross, Annotation, Right of Signer of

Petition or Remonstrance to Withdraw Thereporn or Revoke Withdrawal, and Time Therefor, 27 A.L.R.2d 604 (1953).

Texas courts have yet to articulate their reasoning for recognizing this common-law right, though a sister state has

explained it this way:

No provision appears either in our Constitution, the charter of the city, or general laws of the

state for withdrawal of names from an initiative petition. Nevertheless[,] the great majority of cases

recognize the right of withdrawal as incidental to the right of petition itself.

Doubtless many petitions are signed, from motivations of caprice, good nature,

thoughtlessness, malice, coercion, and hope of reward, rather than from more exalted motives,

patriotic purposes and redress of real or fancied grievances.

Each petitioner acts on his own responsibility and if he should change his mind, or if he

should have been induced to sign under misapprehension or through undue influence, he ought to have

the right to correct his mistake . . . .

In Re Initiative Petition No. 2,41 P.2d 101, 102 (Okla. 1935).

The Honorable Frank Madla - Page 3 (GA-0209)

S.W.2d 116 (Tex. 1950); Tex Att’y Gen. Op. No. C-439 (1965) at 3 (“The signer of a petition for

a local option election on the sale of alcoholic beverages may not withdraw his signature from the

petition after the 30-day time limit for tiling the petition has expired.“). The effect of a signature

being timely withdrawn was that the signature was treated as if it had never appeared on the petition.4

See Tex. Power & Light, 87 S.W.2d at 558. Subsection (a) of pre-amendment section 251.10

authorized the local election official to certify the number of qualified voters who signed the petition.

See Act of May 26, 1983, 68th Leg., R.S., ch. 539, 5 1, sec. 251 .lO, 1983 Tex. Gen. Laws 3138,

3138. Once a signature had been withdrawn there was no signature over which an election official

could exercise any discretion. Your first question asserts that the signature withdrawal affidavits

were timely tiled in the instant case. See Request Letter, supra note 1, at 1. Assuming this was true,

local election officials were required to disregard withdrawn signatures and could not count them

if presented with a petition that was governed by chapter 251 as it existed prior to the 2003

amendments.

You next ask, in essence, if local election officials had the discretion to certify petition

signatures on a petition page that did not bear the pre-amendment requirements mandated by former

section 25 1.08 of the Alcoholic Beverage Code, when that petition was governed by the Code as it

existed before the 2003 amendments. See id. at 2. Section 25 1.08, prior to the 2003 change in law,

read:

The petition for a local option election seeking to legalize the sale of alcoholic

beverages of one or more of the various types and alcoholic contents shall be headed

“Petition for Local Option Election to Legalize.” The petition shall contain a

statement just ahead of the signatures ofthe petitioners . . . . The petition must clearly

state the issue to be voted on, and that issue must be one of those issues set out in

Section 25 1.14 of this Code.

Act ofMay6,1977,65thLeg., R.S., ch. 194, $251.08,1977 Tex. Gen. Laws 391,547. Though you

give no specifics, your question suggests that the signatures at issue appeared on the back side of a

local option election petition signature sheet and that the back side lacked section 25 1.08’s specified

elements. See Request Letter, supra note 1, at 2.

Before we can address your second question, we must first determine whether or not the

elements had to appear only on the first page of a local option election petition filed before the

effective date of the Code’s 2003 changes, or whether they had to appear on every page of the

?he Texas Legislature codified this construction of the common-law right in the Alcoholic Beverage Code in

2003. Section 25 1.10, as amended, now provides for withdrawal and reads, “The withdrawal of a signature nullifies the

signature on the petition and places the signer in the same position as if the signer had not signed the petition.” Act of

May 22,2003,78th Leg., R.S., ch. 1047,s 7,2003 Tex. Gen. Laws 3007,3009 (adding section 251.10(f)). Section

25 1. IO(f) is based on an Election Code provision that the legislature adopted in 1993. See Act of May 28, 1993,73d

Leg., R-S., ch. 728, $83, 1993 Tex. Gen. Laws 2845,2860, codified at TEX. ELEC.CODEANN. 5 277.0022 (Vernon

~~~~);~~~~~~~HOU~ECOMM.ONLICENSINGANDADMIN.PROCEDURES,BILLANALYSIS,T~~. H.B. 1199,78thLeg.,R.S.

(2003) (“Comparison of original to Substitute” - “Copies those provisions of the Election Code relating to the

requirements . . . for a withdrawal of signature by affidavit.“).

The Honorable Frank Madla - Page 4 (GA-0209)

petition. The pre-amendment language of section 25 1.08 is straightforward: “Thepetition . . . shall

be headed. . . . Thepetition shall contain a statement. . . . Thepetition must clearly state the issue

. . . .” Act of May 6, 1977, 65th Leg., R.S., ch. 194, 9 25 1.08, 1977 Tex. Gen. Laws 391, 547

(emphasis added). By its plain language, this version of section 251.08 tied its elements to the

petition as a single document, not to individual pages.

We find further support for this conclusion in the &ding principles of statutory construction.

The doctrine of incZusio unius est exclusio alterius is applicable here. That is, when the legislature

has used a term in one section of a statute and excluded it in another, a court will not imply the term

where it has been excluded. MeritorAuto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86,90 (Tex. 2001)

(citing Smith v. Baldwin, 611 S.W.2d 611,616 (Tex. 1980)). ButseeHorizon/C..SHeaZthcare Corp.

v. Auld, 34 S.W.3d 887,895 (Tex. 2000) (this doctrine merely establishes a presumption that can be

rebutted by discernible legislative intent of a different result). Prior to the 2003 changes in the law,

section 251.06 of the Code, which spells out the generic petition requirements, said that “[e]ach

page of a petition shall bear the same date and serial number and the actual seal of the county clerk

rather than a facsimile of that seal.” TEX. ALCO. BEV. CODE ANN. 5 251.06 (Vernon 1995)

(emphasis added). Similarly, section 25 1.09, which governs petition copies, also required before the

2003 amendments that “[e]ach copy [of the petition] shall bear the date, number, and seal on each

page as required by the original petition. ” Id. 9 25 1.09(a) (emphasis added). By contrast, the words

“each page” were absent from section 25 1.08, and “petition” is used exclusively instead. See Act

of May 6, 1977, 65th Leg., R.S.,‘ch. 194, 9 251.08, 1977 Tex. Gen. Laws 391, 547. As the

legislative history of this statute is silent on the legislature’s intent, the doctrine’s presumption

stands, and we therefore construe the Code’s pre-amendment section 25 1.08 to have required its

elements to appearonly on the first page of a petition. These elements did not need to be repeated

on the petition’s other pages.’

Having concluded that section 25 1.08’s elements had to appear only on the first page of a

petition, we now turn to the heart of your second question, which concerns the discretionary powers

of local option election officials to accept or reject signatures that appeared on pages of a petition

that did not bear section 25 1.08’s elements. To answer this question, we must examine the section

of chapter 251 that controls the petition verification process, section 25 1.10. It is necessary to

determine if this section prior to amendment in 2003 was mandatory or directory, that is, whether

it required strict compliance or only substantial compliance. See Branaum v. Patrick, 643 S.W.2d

745,749-50 (Tex. App.-San Antonio 1982, no writ). In general, election laws are to be construed

as directory in the absence of fraud or of provisions that are clearly mandatory. See Statler v. Fetzer,

630 S.W.2d 782, 784 (Tex. App.-Houston [lst Dist.] 1982, writ dism’d). Case law and a past

attorney general opinion have established that the Code’s pre-amendment section 25 1.10 (the section

applicable to the petition in question, see Act of May 26, 1983, 68th Leg., R.S., ch. 539, 9 1, sec.

‘This interpretation is consistent with other election laws that require similar elements to appear on each page

of a special election petition but do so with express language to that effect. See, e.g., TEX. LOC. GOV’TCODEANN. 0

23 1.106 (Vernon 1999) (“A petition for a local option [zoning] election must include a statement . . . located on each

page of the petition preceding the space reserved for signatures . . . .“; TEX.Oct. CODEANN. 0 2001.652 (Vernon 2004)

(“A petition. . . to legalize bingo under this chapter must have a statement. . . preceding the space reserved for signatures

on each page . . . .“).

The Honorable Frank Madla - Page 5 (GA-0209)

251.10,1983 Tex. Gen. Laws 3138,3138) was mandatory. See Hodges v. Z%ompson, 932 S.W.2d

717,720 (Tex. App.-Fort Worth 1996, no writ) (relying on Tex. Att’y Gen. Op. No. JM-501(1986)).

In Texas Attorney General Opinion JM-501, this office considered an election official’s

discretion to reject signatures that met all but the sixth criterion of subsection (b) of section 25 1.10

of the Alcoholic Beverage Code, which required a voter’s name to appear on a petition exactly as

it appeared on the list of registered voters. See Tex. Att’y Gen. Op. No. JM-501 (1986) at 2. That

opinion concluded that section 251.10’s clear and unambiguous language made the six criteria

mandatory rather than directory. See id. at 3. The Hodges court, faced with a similar situation, relied

on JM-501 to reach the same result and further concluded that pre-amendment subsection (a) of

25 1.10 was mandatory as well. See Hodges, 932 S.W.2d at 720. Indeed, former section 25 1.10

required that a local option election official “shall certify to the commissioners court the number of

qualified voters signing the petition,” see Act of May 26, 1983,68th Leg., R.S., ch. 539, $ 1, sec.

25 1.10,1983 Tex. Gen. Laws 3 138,3 138, which led to the holding that a local election official must

certify “whatever number of voters [that official] can ‘count’ under [25 1. lo] subsection (b) to the

commissioners court,” Hodges, 932 S.W.2d at 720.

In the case of special elections, the exercise of a grant of authority to call an election “must

be in strict conformity with the provisions of the legislative grant.” See West End Rural High Sch.

Dist. v. Columbus Consol. Indep. Sch. Dist., 221 S.W.2d 777, 779 (Tex. 1949). In addition, this

office has stated that there is nothing in the Alcoholic Beverage Code which suggests that a local

election official has any discretion to waive mandatory provisions of the Code. See Tex. Att’y Gen.

Op. No. JM-501 (1986) at 4. Accordingly, petitions subject to chapter 25 1 as it existed prior to that

chapter’s 2003 amendments were not required to bear 25 1.08’s elements on each page. Furthermore,

local election officials were required to count signatures that appeared on local option election

petition pages if those pages otherwise complied with other pre-amendment chapter 25 1 provisions,

unless the signatures were required to be rejected under section 25 1. lO(b).6

%ompare this result with Alliance for a Better Downtown Millbrae v. Wade, 133 Cal. Rptr. 2d 249,253-54

(Cal. Ct. App. 2003) (even though the court primarily relied on the definition of “page” as a whole sheet of paper to

support its holding that signatures on the back side of a petition signature sheet were valid, it also admitted that the

authorizing statute only required substantial compliance); Cavallaro v. Schimel, 755 N.Y.S.2d 809,811-12 (N.Y. Gen.

Term 2003) (signatures on the back side of petition signature sheet were held to be valid because petitions needed only

be in substantial compliance with statutory authority).

The Honorable Frank Madla - Page 6 (GA-0209)

SUMMARY

Prior to 2003 changes in the Alcoholic Beverage Code,

Texas recognized the common-law right of signature withdrawal,

and a timely filed affidavit of signature withdrawal from a local

option election petition had the effect of erasing the petitioner’s

original signature. Local election officials, therefore, were required

to disregard withdrawn signatures and could not count them. In

addition, for local option election petitions governed by the pre-

amendment Alcoholic Beverage Code, local election officials had

to count signatures that appeared on pages that complied with pre-

amendment chapter 25 1 provisions, unless the signatures had to be

rejected under pre-amendment section 25 1.1 O(b).

Attoeeneral of Texas

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Daniel C. Bradford

Assistant Attorney General, Opinion Committee