Case Information
*1 The Attorney General of Texas JIM MATTOX .hne 19, 1986
Attorney General Supreme Court Building Austin. TX. 78711.2548 Telex 9101874-1367 [51214752501] Telecopier 5121475-0266 P. 0. BOX 12548 P. 0. Box 2096 Mr. Timothy D. Yes.ts Howard County Attxney Big Spring, Texas 79721 Re: Permissible variances in signa- Opinion No. m-501 tures on a petition for a local option election under the Alcoholic Beverage Code 714 Jackson, Suite 7W Dear Mr. Yeats: Dallas, TX. 75202-4506 214i742-8944
Pursuant to section 251.03 of the Alcoholic Beverage Code,
petition was circulated among the qualified voters of Howard County 4824 Alberta Ave., Suite 160 [9156333484] El Paso. TX. 798052793 beverages would authorized within the county. The petition be returned in timely fashion to the registrar of voters of Howard County for the purpose of determining whether the sale of certain alcoholic
for verification. An undisclosed number of voters' signatures were rejected when thexe appeared minor variances between the signatures -91 Texas, Suite 700 ,u~,on, TX. 77002-3111 and the names of the voters as they appeared on the official copy 713/222-5888 the current list of registered voters. It is under this factual setting that you ask the following 806 Broadway, Suites 312 questions: Lubbock, TX. 79401-3479 1. Is a signature invalid if it adds or leaves 808/747-5238
out a niddle initial as compared to the official 4349 N. Tenth. Suite B McAllen. TX. 78501-1885 [51215824547] current list of registered voters? 2. Is a signature invalid if the first name on
the petition is shortened or lengthened (Robert- Bob) as compared to the current voter's list? 200 Main Plaza. Suite 400 San Antonio. TX. 782052797 3. Is a signature invalid if a middle name on 5121225.4191 the pet.ition is added or left out as compared to the current voterls list? An Equal Opportunity/ Affirmotlve Actlon Employer 4. Does the registrar have discretion in
approving or rejecting the signatures, and if so, would x.erification in any of the above situations amount to an abuse of that discretion?
As the following paragraphs will explain, we believe the voter registrar acted properly when she rejected the nonconforming signatures.
1 Mr. Timothy D. Yeats - Page ;! (JM-501)
-, You suggest that the rt?gistrar's actions were prompted by section 251.10 of the Alcoholic Beverage Code. This provision instructs the registrar to verify the signatures appearing on a petition calling for a local option election. 1,: sets forth the following requirements:
(a) The regiiitrar of voters of the county shall check the r.ames of the signers of petitions and the voting pmcincts in which they reside to determine whether .the signers of the petition were qualified voters XE the county, justice precincts, or incorporated city or town at the time the petition was issced. The registrar shall certify to the comm1ssione.m court the number of qualified voters signing the petition.
(b) No signature may be counted. either by the registrar or com&sioners court, where there is reason to believe that: --
(1) it is not the actual signature of the purported signer;
(2) the voter registration certificate number is not correct;
(3) the voter registration certificate number is not :in the actual handwriting of the signer;
(4) it is a duplication either of a name or of handwriting: used in any other signature on the petition;
(5) the rmidence address of the signer is not correct or is not in the actual handwriting of the signer;, z (6) the name of the voter is not signed --
exactly as it appears on the official copy of the current 1Tst of registered voters for the voting year .jz which the petition is issued. (Emphasis addml) .
Alto. Bev. Code 9251.10. Your questions assume that with the exception of subsection :b)(6), all other requirements of section 251.10 are met and that no indication of fraud or forgery is present.
Because your fourth quest&m necessarily controls the answers to those preceding it, we shall comider this question first.
Mr. Timothy D. Yeats - Page 3 (JM-501)
Your final question concerns the amount of discretion the registrar is granted by section 251.10. It is suggested that the registrar may have the dtixretion to waive nonconforming signatures appearing on local option r,lection petitions if all other requirements of subsection (b) are met. This suggestion is inspired by the use of the word %sy" in subsection (b): “[Ii]0 signature % be counted. . . ." The portjon of the Texas Liquor Control Act from which subsection (b) is det,ived was phrased: "[nlo signature shall be counted. . . ." Penal Code, art. 666-32 (repealed 1977). Although the word "may" generally conrm:es a discretionary function, "no signature may . . .I' is clearly manda.tory. Ryan V. I$mtgomery, 240 N.W.Zd 236 1976) ("may not" means "shall not ). Matter of Estate of (Mich.
Minnick, 653 S.W.Zd 503 (TEx. App. - Amarillo 1983, no writ).
In construing electior. laws. it is necessary to determine whether the provisions under scrutiny are mandatory or directory in nature.
Branaum v. Patrick, 643 S.k'.Zd 745, 749 (Tex. App. - San Antonio 1982, no writ). In general, election laws are to be construed as directory in the absence of fraud 01' mandatory provisions. Stotler v. Fetzer, 630 S.W.Zd 782 (Tex. App. -. Houston [lst Dist.] 1982, writ dism'd); Attorney General Opinion 511-467 (1986). Because the right to vote is fundamental, election law ptovisions relating to voters are construed as directory. Leach v. Fischer, 669 S.W.Zd 844 (Tex. App. - Fort -- Worth 1984, no writ); Bramum v. Patrick, supra. Irregularities in -- the election process which do not disenfranchise the voters or affect the result of an election 6.re generally treated as informalities. See Branaum v. Patrick, supra, at 750. Election law provisions concern= candidates and their qualifications are mandatory because the right to hold office is considered 8. privilege. Leach v.-Fischer, supra.-
We believe section 251.10 is a mandatory provision. Granted, this section does not deal with the qualifications of a candidate. It does, however, concern wt.ether the election issue, rather than a candidate's name, will be placed on the ballot. In this sense, section 251.10 must be comtrued as mandatory. Cf. Leach V. Fischer, supra. Moreover, because we believe subsection(b) is clear and unambiguous, it must be enforced according to its express language.
Call V. Service Motors, Inc,,, 660 S.W.Zd 814. 815 (Tex. 1983).
Subsection (b)(6) of article 251.10 simply and clearly requires the person signing a local option election petition to sign his name "exactly as it appears on -the . . . list of registered voters." It does not, in our opinion, authorize any variance between the signature and the corresponding name on the list of registered voters. Nor does it provide an alternative ,mathod of verifying signatures. Penal Code article 666-32 was interpr,eted to grant the commissioners court and county clerk the authority to adopt any necessary and reasonable means to ascertain the number of required signatures and to determine whether the signers of the petition were qualified voters. See Akers -- V. Remington, 115 S.W.Zd 714, 720 (Tex. Civ. App. - Fort Worth 1938, *4 Mr. Timothy D. Yeats - Page 4 (JM-501)
writ dism'd); Attorney Gen'sral Opinions E-199 (1974); C-266 (1964); C-263 (1964); NW-1356 (19t2); O-7218 (1945); O-6364 (1945). These opinions, however, concermd the performance of duties clearly expressed in the statute. 'They did not consider the case where the election officials seek to mold or deviate from the provisions of the statute. We find nothing in the Alcoholic Beverage Code which suggests that the regist:rar has any discretion to waive the requirements of the Code. Compare Eutson v. Smith, 191 S.W.Zd 779, 784-85 (Tex. Civ. App. - Galveston 1945, no writ) (commissioners court has authority to call local option election independent of petition; thus, court's order callin for local option election constituted waiver of defects apparent on face of petition when commissioners had full knowledge of such defects). Consequently, the registrar has no discretion to waive the signature requirement of section 251.10(b)(6), even if all other requiremeats of subsection (b) are satisfied.
Ordinarily, any mark xade with the present intention to adopt or authentic :ate the document %s a legally sufficient signature. See Delespine v. State, 396 S.k'.Zd 133, 136 (Tex. Grim. App. 1965), cert.
denied 384 U.S. 1019 (1966). See also Gov't. Code §§311.005(6), 312.011(14) (definition of "signed" and flsignature"). However. given the mandatory character XE -subsection (b)(6), your first three questions must be answered in the affirmative.
SUMMARY The provision!; of section 251.10, subsection (b) of the Alcohclic Beverage Code are mandatory.
The registrar of voters has no authority to waive the signature recuirement of section 251.10(b)(6) If all other re$,uirements of subsection (b) are met.
JIM MATTOX Attorney General of Texas JACK HIGRTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
Mr. Timothy D. Yeats - Paga! 5 (JM-501)
RICK GILPIN
Chairman, Opinion Comittel!
Prepared by Rick Gilpin
Assistant Attorney General