THE           AYTORNEX                  GE~NERAL
                                OFTEXAS



                                December    18, 1952


Hon. E. W. Patteson                     Opinion    No.   V-1555
County Attorney
Gonzales  County                        Re: Authority   of the county judge to
Gonzales,  Texas                            determine    the sufficiency   of a
                                            petition requesting an election
                                            upon the issue of dissolving the
Dear    Sir:                                incorporationof    the City of Smiley.

               Your   request   for an opinion    discloses   the following   facts:

            Gn July 29, 1952, a petition signed by 74 persons
       was submitted to the county judge of Gonzales County
       under the provisions      of Article   1242, Vernon’s     Civil
       Statutes, requesting     that an election be called for the
       purpose of determining        whether the incorporation        of
       the City of Smiley should be dissolved.           The county
       judge considered      the petition and determined         under
       the provisions    of Articles   1241. 1242, and 1243, V.C.S..
       that an insufficient    number     of the legally     qualified
       property tax-paying      voters ,had signed the petition,
       and, therefore,     by order dated August         7.. 1952. de-
       nied and refused the petition.        Thereafter,    the propo-
       nents of the petition submitted        to the county judge
       another list of signatures,      which if considered      with
       the denied original     petition would be a sufficient num-
       ber of signatures     to require the calling of the election.
       The proponents requested that the additional signatures
       be considered     as an amendment to the denied petition
       and an election called.

          Based upon the above facts, you ask whether the county
judge would be authorized   to consider   the denied petition of July
29, 1952, in connection with the subsequently    filed new petition so
as to meet the requirements    of Article  1242, V.C.S.. as to the re-
quired number of signatures    (100) necessary   to call the election.

               Under the submitted facts we are          of the opinion that the
question       must be answered   in the negative.

          You state in your request that the City of Smiley has
adopted and accepted the provisions      of Article   961. V.C.S.   It is
therefore   subject to the provisions   of Article   1242. V.C.S., rather
than Article 1261, V.C.S.    Richardson    v. State, 199 S.W.2d 239 (Tax.
Civ. App. 1947, error ref. n.r.e.).
                                                                                .   .I




Hon. E. W. Pattison.     page 2      (V-1555)




          Article   1242, V.C,S.,   provides:

           “When one hundred of the property tax-payers,       who
     are qualified   voters  of any such city or town, desire
     the abolishment    of such corporation,   they may petition
     the county judge to that effect, who shall thereupon or-
     der an election to be held in such city or town, as in the
     case of its incorporation.    If a majority  of the property
     taxpayers,   who are qualified voters, of any such city or
     town is less than one hundred in number, then the coun-
     ty judge shall order an election as above provided upon
     the presentation   to him of a petition signed by a major-
     ity of the tax payers of such city or town, who are qual-
     ified voters thereof.”

            Clearly the county judge had the authority before accept-
ing the petition of July 29, 1952, to determine    its sufficiency   with
regard to latent defects such as the requisite     voting qualifications
of the signers.      West End Rural High School Dist. v. Columbus        Con-
solidated Ind. School Dust.. 148 Tex. 153 221 S . W . 2d 77-77I949) . In
-the                              judge was Acting in an administrative
capacity.    Att’y Gen. Op. O-2577 (1940). In such cases it is the duty
of the county judge to ascertain     whether the required    number of vot-
ers joined in the petition and whether they were qualified,        but in
making this decision the county judge is allowed to exercise         his own
discretion,    provided his decision is based upon reason and fairness.
In Boynton v. Brown.      164 S.W. 893 (Tex. Civ. Apm,          err-
the Court said:

          Y
              . . . Under the operation of this rule, whenever
     the law directs an officer or officers       to order an elec-
     tion when a certain       number of qualified      voters have
     joined in a petition for same, it is made the duty of the
     officers    to ascertain  whether the requisite     number of
     voters have joined in the petition, and whether they are
     qualified,    and mandamus will not lie to control them in
     the exercise     of that duty; but the officers   upon whom is
     devolved the duty of calling the election will be allowed
     to exercise     their own judgment.    Their action must be
     based upon reason and fairness,        however;    . 0 .” (Em-
     phasis added.)

           From the’above we think it follows that the county judge
once having denied the petition of July 29, 1952, for lack of sufficient
signatures,   and having entered an order to that effect, is not now
authorized to consider    the original petition along with a second peti-
tion, which standing alone is likewise    insufficient,   in order to find
the required   number of voters specified     in the statute (Art. 1242).
To do so would or could result in unfairness       and therefore   be an
abuse of discretion.    This is so for the reason that a party may
Hon. E. W. Patteson,       page 3      (V- 1555)




withdraw    his name from a petition requesting         an election at any
time before action is taken thereon (South Taylor County Inde-
pendent School District v. Winters         Independent School Districx,
249 S DW . 2d 1010 [T ex. Sup. Ct.          ); and smce the Judge havmg
once denied the petition of      July 29,  1952,  a signer of such peti-
tion might and probably would be led to believe that there was
no necessity    for requesting    the withdrawal    of his name even
though he did not as of the time the second petition was filed
any longer desire to join in a petition for an election.           Under
such circumstances       we are of the opinion that the second peti-
tion should be complete within itself and it would be an abuse
of discretion    for the county judge to consider       a petition. once
denied and refused,      along with a second petition. insufficient
within itself, in order to arrive at the number of qualified           tax-
paying voters required       for the calling of an election under the
provisions    of Article   1242, V.C.S.


                                   SUMMARY

           Where a county judge has once considered        a peti-
     tion for an election and refused the same, it would be
     an abuse of his discretion   to thereafter   consider    such
     denied petition inconjunctionwitha     later petition, which
     standing alone is insufficient,   in order to arrive     at the
     number of qualified tax-paying      voters required    for the
     calling of an election under the provisions      of Article
     1242, V.C.S.

                                              Yours    very   truly,

                                               PRICE DANIEL
                                              Attorney General
APPROVED:

C. K. Richards
Trial & Appellate       Division               By    &--ddz            vdh'W-2
                                                    Charles  D. Mathews
E. Jacobsen                                         First Assistant
Reviewing   Assistant

CDM:b