L      3




                      EATTORNEYGENERAI~
                                OF    TEXAS

                           AUSTIN.    TIEXAS     787ll




                                     November    12, 1973


    The Honorable M.D.     Emerson                   Opinion No.   H-   145
    County Attorney
    Lamar County                                     Re:    Construction   of Article
    Paris, Texas 75460                                      666-32 1/2(b),   Vernon’s
                                                            Texas Penal Code, local
    Dear Mr.   Emerson:                                     option election deposit

           You have asked if a deposit of money, paid under Article      666-32    1/2(b)
    of Vernon’s   Texas Penal Code by private individuals for the calling of      a
    local option election to legalize the sale of alcoholic beverages   for off   pre-
    mises consumption,     should be refunded if no local option election had     been
    held in that political subdivision for many years.     You advise:

                       “Paris is an incorporated      city in Lamar County,
                A ‘Petition For Local Option Election To Legalize’ was
                supplied applicanta.     . . . Applicants    were required by
                the County Clerk to deposit,     in cash, $2, 366.75,    pursuant
                to Art. 666-32 1/2(b).      The election was held in April,1972,
                and the measure was defeated.        . . . [P]rior to the holding
                of the election,   applicants  made request of the County Clerk
                to refund the cash deposit of $2,366.75       on the grounds that
                no local option election had been held in the City of Paris
                within the one year period immediately        preceding the elec-
                tion in Paris.   , e ,

                        “There has been no local option election held in the
                 City of Paris for many years prior to the election of April
                 of this year,  mentioned above.    However,   a similar local
                 option election was held in Lamar County in a smkil City
                 newly incorporated.    . D within the one year period imme-
                diately preceding the filing of the petition . . . , and another
                 such election was held in [another] . . . City , . e in Lamar
                 County also within the one-year    period.   Both are the same
                type of political rubdivisi#n as the City of Paris.”




                                        p. 683
The Honorable        M.D.    Emerson,    page 2      (H-145)




        Article     666-32   1/2 of Vernon’s   Penal   Code provides,   in pertinent
part:

                         “(a) The expense of holding any local option
                  election authorized by the Texas Liquor Control Act
                  in any county, justice precinct or incorporated       city
                  or town shall be paid by the carnty,     but the expense
                  to the county shall be limited to the holding of one
                  election in each of the above po1itica.l subdivisions
                  within a one-year    period where the intent of the
                  election is to Legalize the sale of alcoholic   beverages
                  . . . . All other local option elections,     excepting the
                  aforementioned     one election in a one-year   period with
                  intent to legalize the sale of alcoholic beverages.      . .
                  shall be paid by the county from funds derived by the
                  county as prescribed     in Subsection (b) of this section
                  as follows:

                         “(b) When the application for an election in a
                  county, justice precinct or incorporated    city or town
                  is presented,   the county clerk at the time and before
                  the issuance of any petition for a local option election
                  shaLL require a deposit in the form of a cashier’s     check
                  in the aggregate amount of twenty- five cents per voter
                  * . . * The money so received shall be deposited in
                  the county:s general fund, and no refund shall be made
                  to the applicants  regardless   of whether the petition is
                  returned to the county clerk or the election is ordered,
                  When there is presented to the county clerk an applica-
                  tion which must be accompanied      by a deposit,  the county
                  clerk shall not issue a petition to the applicants unless
                  and until the deposit is made, and a county clerk who
                  issues a petition upon such an application without first
                  receiving the deposit is guiltyof a misdemeanor.       . . .”
                   (emphasis added)




                                          p.   684
The Honorable    M. D; Emerson,     page 3     (H-145)




       It Attorney General Opinion M-724        (1970), it was decided that a
deposit made with the county clerk pursuant to Article          666-32 1/2(b)
with an application for a “local option election” in a county which had
not had such an election in the preceding one-year         period should be
refunded to the depositor.     Article   666-32 1/2(a) was construed as stating
that if no local option election had been held in the preceding one-year
period in the same political subdivision,      the expense dthe election is that
of the county.    If there had been such an election in the prior one-year
period in that political subdivision,     the paragraph (b) requirement      for a
deposit would become mandatory.          The use of the phrase “an application
which must be accompanied       by a deposit” was interpreted       as an implied
recognition   that there are applications     which do not require such deposits.
Any other construction     would change the statute into an “application       fee”
statute, Opinion M-724 pointed out, and because of the failure to adequately
describe it as such in the caption of the legislative      act in which it was in-
cluded, would render it invalid.       (Article 3, 5 35, Constitution of Texas).

        The question of which political subdivisions     can hold local option
elections is settled by Article 16, 5 20, of the Texas Constitution.        Counties,
justice’s  precincts,    and incorporated   cities or towns are on an equal footing.
See Article   666-32,    V. T. P. C., as’ amended (Acts 1973, 63rd Leg.,      ch. 20,
pa 508); Myers v. Martinez,        320 S. W. 2d 862 (Tex. Civ. App.,    San Antonio,
1959), error ref.n.r.e.,       326 S. W. 2d 171 (Tex. 1959).   Compare Perkins v.
State, 367 S. W. 2d 140 (Tex. 1963); Warren v. Moore,          337 S. W. 2d 395
(Tex, Civ. App.,    Amarillo,    1960, writ dism.).   Also see Attorney General
Opinion M-931 (1971).       Therefore,   we believe the one-year   limitation applies
separately   to each particular     such subdivision.

       In our opinion, the private individuals calling for a local option elec-
tion in Paris should not have been required to make a deposit with the county
clerk,  and such deposit should be refunded.

                                    SUMMARY

                    Because there had been no ,local option liquor
             election in the City of Paris within a one-year  period,
             no deposit of money should have been required under




                                    p.   685
The Honorable   M.D.   Emerson,    page 4     (H-145)




           Article  666-32 1/2(b) of private individuals calling for
           a local option election to legalize the sale of alcoholic
           beverages   for off premises  consumption,   and the amount
           paid should be refunded.

                                            Very   truly yours,




                                    v       Attorney    General   of Texas




DAVID M. KENDALL,       Chairman
Opinion Committee




                                   p.   686
