             i.




                       The Attorney               General of Texas
                                          April   19,   1979
MARK WHITE
Attorney General


                   Honorable Bill Coody, Chairman              Opinion No. m-12
                   Liquor Regulation Committee
                   House of Representatives                    Re: Frequency      at which local
                   Austin, Texas                               option elections on the legal sale of
                                                               alcoholic beverages may be held.

                   Dear Representative   Coody:

                          You have requested our opinion in reference to the interpretation      of
                   section 251.17 of the Alcoholic Beverage Code. That section provides:

                              No local option election on a particular issue may be
                              held in a political subdivision until one year has
                              elapsed since the last local option election in that
                              subdivision on that issue.

                         Your question is whether a local option election on the sale of
                   alcoholic beverages is prohibited if it would present a ballot proposition
                   which is identical to a proposition approved less than a year before in the
                   same subdivision.

                          Section 251.14 of the Alcoholic Beverage Code sets out eight possible
                   wordings for a local option ballot. It has been established that every one of
                   these eight propositions constitutes a separate issue for purposes of section
                   251.17. Fox v. Burgess, 302 S.W.2d 405 (Tex. 1957). Your question is whether
                   identical ballot propositions present different issues when one is presented in
                   a legalizing election and the other is presented in a prohibitory election.

                          When a local option election is held, the wording will always be “for (or
                   against) the legal sale” of a particular type of alcoholic beverage. There is
                   no difference in the wording of the proposition between a legalizing and a
                   prohibitory election: however, the statutes treat the propositions differently
                   depending on whether they are legalizing or prohibitory.      For example, the
                   wording of a petition will vary depending on whether it seeks a legalizing or
                   prohibitory election.    Alcoh. Bev. Code, SS 251.04, 251.05, 25107, 251.08.
                   The effect of the vote will depend on the nature of the election as a
                   legalizing or prohibitory election.      Alcoh. Bev. Code, S 251.51. County
                   financing of the election may depend on whether the election is to legalize




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Honorable Bill Coody    -   Page Two     (NW-12)



or prohibit.   Alcoh. Bev. Code S 251.40. We have examined the language in the various
statutes discussing the issues to be placed on the ballot, and it is consistent both with an
interpretation   that a ballot proposition can present only a single issue or with an
interpretation  that a ballot proposition will present one of two issues depending on
whether it is a legalizing or prohlbitory election.

       The predecessors     to sections 251.14 and 251.17 were discussed in Mitchell v.
McCharen, 119 S.W.2d 676 (Tex. Civ. App. -San      Antonio 19381, writ dism’d per curiam, 121
S.W.2d 1055 (1938). Unlike the present statute, the law at, that time provided a different
wording on the ballot if the election was a prohibitory one rather than a legalizing one.
The statute listed several different wordings which might be placed on the ballot. Acts
1937, 45th Leg., 1st Called Seas., ch. 13, at 1765-1766. Nevertheless, the court said that
these different propositions constituted only three issues. Mitchell, -         at 677. This
conclusion was adopted by the Texas Supreme Court. Fox, w           at 407. The three issues
discussed in Mitchell are equivalent to the eight bat         propositions permitted under
current law. Under the Mitchell and Fox rationale we believe that the submission of a
ballot proposition constitutes the same issue whether it is submitted in a prohibitory or a
legalizing election.  The eight ballot propositions set out in section 251.14 constitute all
 the possible issues which may be presented.    Thus, the same ballot proposition in a local
option election on the legal sale of alcoholic beverages may not be submitted twice within
a twelve-month period.

                                        SUMMARY

           A local option election on the legal sale of alcoholic beverages may
           be held only one time per year in a political subdivision on a
           particular issue. A ballot proposition presents the same issue as an
           earlier proposition if it contains identical language even if one
           election is designed as a legalizing election and the other is
           designed as a prohibitory election.                          A
                                          AM
                                              MARK     WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First-Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General.

Prepared by C. Robert Heath
Assistant Attorney General




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Honorable Bill Coody   -    Page Three        (NW-12)



APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
Walter Davis
Reed Lockhoof
William G Reid
Bruce Youngblood




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