Untitled Texas Attorney General Opinion ( 1991 )


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  •                                QBfficeof toe Igttornep fBenera1
    &We of Qexaa
    DAN MORALES
    *moRNLy
    GENBRAL                         September 19,199l
    Honorable Bill G. Carter                    Opinion No. DM- 44
    chairman
    Committee on Public Safety                 Re: Whether county commissioners
    Texas House of Representatives             have the authority to set boundaries for
    P.O. Box 2910                              wet/dry elections and other related
    Austin, Texas 787682910                    questions (RQ-89)
    Dear Representative Carter:
    You ask three questions regarding local option liquor elections. Such
    elections are held pursuant to article XVI, section 20, of the Texas Constitution and
    chapter 251 of the Alcoholic Beverage Code. We will consider each question in
    turn:
    1. Do county commissioners have the legal authority to set
    boundaries for wet/dry elections?
    Article XVI, section 20, of the Texas Constitution directs the legislature to
    adopt statutes to provide for local option elections to legalize or prohibit the sale of
    alcoholic beverages. This constitutional provision is codified in chapter 251 of the
    Alcoholic Beverage Code. Local option liquor elections may only be called when
    the commissioners court receives a valid petition. Alto. Bev. Code $9 251.01,
    251.11. The commissioners court must call an election when it receives such a
    petition. Id The county clerk must provide a petition to qualified voters under the
    following circumstances:
    If 10 or more qualified voters of any county, justice
    precinct, or incorporated city or town file a written application,
    the county clerk of the county shall issue to the applicants a
    petition to be circulated among the qualified voters of rlaat
    political subdivision
    p.   221
    Honorable Bill G. Carter - Page 2                       (DM-44)
    Alto. Bev. Code Q251.03 (emphasis added).
    The political subdivision for which the election must be called is thus
    determined by the petition. The political subdivisions for which elections may be
    called are limited by both the constitution and by statute to counties, justice of the
    peace precincts, and incorporated cities and towns. Tex. Const. art. XVI, Q20; Alto.
    Bev. Code $0 251.01,251.02, see ulro Attorney General Opinions JM-1177 (1990);
    JM-468 (1986) and authorities cited therein. These political subdivisions will
    ordinarily have fixed boundaries that will determine the area in which the election is
    held.
    The only instance in which a commissioners court is authorized by statute to
    exercise discretion in setting the boundaries for a local option liquor election is
    described in section 251.80 of the Alcoholic Beverage Code. Subsection (a) of that
    section states:
    Whenever a local option status is once legally put into
    effect as the result of the vote in a justice precinct, such status
    shall remain in effect until the status is changed as the result of
    a vote in the same territory that comprised the precinct when
    such status was established. If the boundaries of the justice
    precinct have changed since such status was established, the
    commissioners court shall, forputposes of a local option election,
    define the boundaries of the original precinct. A local option
    election may be held within the territory defined by the
    commissioners court as constituting such original precinct!
    (Emphasis added.)
    This provision requires an election attempting to change the local option
    status of a justice precinct to be conducted, not in the precinct as it exists at the time
    of the petition for the election, but in the territory that comprised the justice
    precinct when the local option status was established.1
    In Coker v. Texas Alcoholic Beverage Comm’n, 
    524 S.W.2d 570
    (Tex. Civ.
    lBy its terms section 251.80 of the Alcoholic    Beverage Code applies only to justice precincts.
    Changes of 1ocaI option status in incorporated   cities and towns remains governed by section 251.72.
    P-     222
    Honorable Bill G. Carter - Page 3            (DM-44)
    App.-Dallas 1975, writ refd n.r.e.), the court of appeals considered a situation in
    which the exact boundaries of a former justice precinct could not be determined.
    The court held, in part:
    [Tlhe commissioners’ court has responsibility to call the
    election, and we see no reason why it could not protect all
    interested persons by drawing a line approximating the original
    boundaries. Its determination of the boundaries would not be
    exercised under its general power to fix precinct boundaries,
    but would be an administrative determination incidental to its
    power to order an election,.and would control unless clearly
    erroneous or 
    arbitrary. 524 S.W.2d at 579
    .
    We believe the intent of the~legislature in enacting the emphasized language
    was to pennit the commissioners court to resolve situations in which, due to lost or
    ambiguous records or other reasons, it is not possible to establish definitively the
    boundary of a former justice precinct. In effect, the language codifies the holding of
    Coker with respect to situations where the boundary of a former justice precinct
    cannot be determined. Accordingly, we believe that discretion exercised under
    section 251.80 may not be arbitrary. A boundary set by the commissioners court
    under section 251.80 must as nearly as possible conform to the boundary of the
    former precinct for which the petition requires the election be held. Where the
    boundaries of the former justice of the peace precinct are clearly defined by public
    records, the county commissioners have no discretion to define the boundaries
    differently for purposes of a local option election.
    2. If an area is currently designated dry by municipal
    ordinance, can a commissioners court require residents in this
    area to participate in a wet/dry election?
    As noted above, the political subdivision in which a local option liquor
    election is to be held is determined by the petition that both authorizes and requires
    the commissioners court to call the election. In Patton v. Texas Liquor Control Bd.,
    
    293 S.W.2d 99
    (Tex. Civ. App.-Austin 1956, writ ref d n.r.e.), the court considered a
    situation in which a local option election had been held in only that part of a justice
    p.     223
    Honorable Bill G. Carter - Page 4          (DM-44)
    precinct lying outside the corporate limits of a city. The court held that there was no
    constitutional or statutory authority for holding a local option election in only part
    of a justice precinct:
    We believe that since the Constitution and statutes limit
    local option elections to counties, justice’s precincts and
    incorporated cities or towns, the purported election in only a
    portion of Justice Precinct No. 3 is void, and that the District
    Court erred in holding that it was effective to make the sale of
    liquors within such portion of the precinct illegal.
    . . . .
    We must also bear in mind that if five voting boxes can be
    thus converted into a local option district despite the
    Constitution then there is no logical reason why a smaller area,
    one lot for instance, could not be so created and, perhaps of
    greater importance, if a non-constitutional area can be made
    dty by such procedure then it could by the same token be made
    wet by such 
    procedure. 293 S.W.2d at 101-02
    . (emphasis in original).
    Accordingly, only those political subdivisions enumerated in the constitution
    and statutes may exercise local option through the electoral process prescribed by
    chapter 251 of the Alcoholic Beverage Code, and such elections must be held in the
    entire political subdivision for which the election is called. No provision of the
    Alcoholic Beverage Code authorizes the disfranchisement of voters in any portion
    of a city that is within the political subdivision for which the election is to be held.
    Whether a municipality has prohibited the sale of an alcoholic beverage in an area
    of that municipality is irrelevant as to the inclusion of that area in a local option
    election. While the Alcoholic Beverage Code provides for some municipal
    regulation of the sale of alcoholic beverages, Alto. Bev. Code $9 109.31, 109.32,
    these provisions are distinct from the exercise of local option by election and do not
    serve to change the local option status adopted by a political subdivision pursuant to
    chapter 251, nor to inhibit the adoption of new local option status by the voters. 
    Id. $$ 251.51,251.72.
    P.   224
    Honorable Bill G. Carter - Page 5                (DM-44)
    3. What agency or agencies are legally responsible for
    enforcing changes in wet/dry elections?
    We take your question to ask what agency is responsible for enforcing
    changes in local option status made pursuant to chapter 251 of the Alcoholic
    Beverage Code. The Alcoholic Beverage Commission is charged generally with
    regulating every phase of the alcoholic beverage industry in Texas. Alto. Bev. Code
    Q5.31. Of course, state and local police agencies may enforce state laws within their
    respective jurisdictions. However, certain other officials are given specific duties in
    certifying the result of a local option election.
    Section 251.51 directs the commissioners court to canvass the returns of a
    local option election and to declare the result. Upon a majority vote in favor of
    legalization, the types of alcoholic beverages legalized may be sold once the
    commissioners court enters an order declaring the result. 
    Id. A vote
    prohibiting
    sale of alcoholic beverages is effective 30 days after the commissioners court order
    is entered. Id If the result prohibits the sale of any alcoholic beverages, it must be
    posted. Id 9 251.54. Regardless of outcome, the result is certified to the Alcoholic
    Beverage Commission and the secretary of state by the county clerk. 
    Id. $ 251.53.
    When an application is made for a license or permit to sell alcohol, the county clerk
    must certify whether a particular location is “wet”or “dry.” 
    Id. 5 11.37.2
    SUMMARY
    A commissioners court is authorized to set the boundaries
    for a local option liquor election only in the circumstances
    prescribed in section 251.80 of the Alcoholic Beverage Code.
    A boundary set by the commissioners court under this
    provision must as nearly as possible conform to the boundary
    of the former justice of the peace precinct for which the
    petition requires an election be held. Where the boundaries of
    the former justice of the peace precinct are clearly defined by
    public records, the county commissioners have no discretion to
    *This procedure of &tic&m      as to wet or dry status is summarized   by the court in Sells v,
    ROOM, 769 S.W.2d 641,643 (Tex. App.--Austin   1989, no wit).
    P-      225
    Honorable Bill G. Carter - Page 6         (DM-44)
    define the boundaries differently for purposes of a local option
    election.
    Only those political subdivisions enumerated in the
    constitution and statutes may exercise local option through the
    electoral process prescribed by chapter 251 of the Alcoholic
    Beverage Code, and such elections must be held in the entire
    political subdivision for which the election is called. No
    provision of the Alcoholic Beverage Code authorizes the
    disfranchisement of voters in a portion of a city that is within
    ,the political subdivision for which the election is to be held.
    DAN      MORALES
    Attorney General of Texas
    WILL PRYOR
    First Assistant Attorney General
    MARY KELLER
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEAKLEY (Ret.)
    Special Assistant Attorney General
    RENEA HICKS
    Special Assistant Attorney General
    MADELEINE B. JOHNSON
    Chair, Opinion Committee
    Prepared by John Steiner
    Assistant Attorney General
    P-   226
    

Document Info

Docket Number: DM-44

Judges: Dan Morales

Filed Date: 7/2/1991

Precedential Status: Precedential

Modified Date: 2/18/2017