                         May 23, 1990


Honorable John T. Montford      Opinion No. JM-1177
Chairman
State Affairs Committee         Re: Constitutionality of sec-
Texas State Senate              tion 251.80 of the Alcoholic
P. 0. BOX 12068                 Beverage Code  (RQ-1929)
Austin, Texas   78711
Dear Senator Montford:
     You ask  about the effect of Alcoholic Beverage Code
section 251.80! added by the 71st
                               . .Legislature.1
                                        .        You suggest
that the section conflicts with section 251.01 of the
Alcoholic Beverage Code and with article XVI, section 20(b),
of the Texas Constitution.
     The constitutional provision directs the legislature to
enact a statutory system for local option elections to
legalize or prohibit the sale of alcoholic beverages. The
provision designates the territories in which these elec-
tions may be conducted.
     Article XVI, section 20(b) reads:
              The Legislature shall enact a law or laws
          whereby the wfied       voters of anv countv.
            sti e s vr inct     r incornorated town or
          &ic     iay eEy a Zajority vote of those
          voting, deCermine from   time to time whether
          the sale of intoxicating liquors for beverage
          purposes shall be prohibited or legalized
          within the prescribed limits; and such laws
          shall contain provisions for voting on the
          sale of intoxicating liquors of various types
          and various alcoholic content.       (Emphasis
          added).
     The statutes enacted to effectuate article XVI, sec-
tion 20, are codified in the chapter 251 of the Alcoholic


     1.    Acts 1989, 71st Deg., ch. 435, S 2, at 1582.




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Honorable John T. Montford - Page 2   (JM-1177)




Beverage Code. Section 251.01 provides for an election on
presentation of a proper petition "by the required number of
voters of a county, or of a justice precinct or incorporated
city or town." Similarly, sections 251.72 and 251.73 refer
to the retention of a particular local option status within
each of these named jurisdictions. Section 251.72 refers to
the constitutionally designated territories as wauthorized
voting units" and states that once a local option status is
adopted in such a unit it may only be changed by a sub-
sequent election in the same authorized unit.
     The constitutional provision and the statutes have been
consistently interpreted as limiting voting on local option
issues to the territorial units specified in the constitu-
tional provision. Smith v. Breedlove, 399 S.W.2d 404 (Tex.
Civ. App. - Eastland 1966); pp
a,   293 S.W.2d 99 (Tex. Civ. App. - Austin 1956, writ ref'd
n.r.e.).
     Your question is prompted by the recent addition of
section 251.80 to the Alcoholic Beverage Code. Subsection
(a) of that section reads as follows:
            (a) Whenever a local option status is
        once legally put into effect as the result of
        the vote in a justice nrecinct such status
        shall remain in effect until Che status *
        changed as the result of a vote in the 2
        territorv that comvrised the nrecinct when
        such status    was   establrshed.    If   the
        bsofthe                                  have
        chanaeddce     such status was establisu
        &          'one
        of a local ontron election. d&e           the
        sof
        b                                  . A local
        option election zay be held within        the
        territory defined by the commissioners court
        as constituting    such original    precinct.
        (Emphasis added.)
     The 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. You ask whether this subsection would
thwart the constitutional mandate that the election occur in
a justice precinct by statutorily redefining the affected
territory as a precinct which no longer exists.




                            p. 6204
Honorable John T. Montford - Page 3    (JM-1177)




     The courts that have considered boundary changes or
subdivision dissolutions in the local option context have
interpreted the constitution as requiring that subsequent
elections to change the local option status be held in the
original territory.2 In m,                    110 S.W.2d 549
(Tex. 1937), the Texas Supreme Court faced the question of
the local option status of a dissolved city that had earlier
voted as a city to prohibit the sale of intoxicating liquors
within its territory. The court wrote:
        Of course, any such area has the right to
        become wet by so voting at an election
        legally ordered and held for that purpose
        under present local option statutes. In this
        connection, however, we.again note that &
        9lection must be held in the same area that
                Iv voted dry . . . . [W]hile it is
        true that the citv of Houston Heiahts. .has
        lona since ce;sed to exist as. a mun1-
        cornoration. s 111 it vet exists for the
        9
        P                                 ele ion t
        vote on the ouestion of makina
                                     . . lawful to
                                        it
        sell intoxicatina liouors 1 bin       e area
        griainallv voted dry . (Emph%    add::.)
&&  at 555.
     The Rouchin8 court was interpreting the 1935 amendments
to the constitutional provision that appear in our present
constitution. It affirmed the holding of & carte Fields,
86 S.W. 1022 (Tex. Crim. App. 1905), which had reached a
similar result under an earlier version of this constitu-
tional provision. The Fields court rejected the argument
that a change in justice precinct boundaries affected the
local option status of the original precinct, and repeated
the rule of earlier cases that local option once adopted in
a given territory remains the law of that territory "until
[it is] repealed by the voters of the same territory which
originally put it into operation." &    at 1023.   Conceding
that the old justice precinct in which local option was
adopted no longer existed as a precinct for judicial
purposes, the court stated that it nonetheless continued to
exist for local option purposes. L


     2. For a thorough discussion of the effect of boundary
changes on the local option status of voting units within
Texas and other jurisdictions, m   25 A.L.R.2d Annotation:
Local Option - Change of Boundaries at 863 - 878. See also
the cases cited in Houchiga, m.




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Honorable John T. Montford - Page 4   (JM-1177)




     A recent case repeats the determination that a change
in a justice precinct boundary has no effect on the local
option status of the original area and that a subsequent
local option election must be conducted in the territory as
it existed before the boundary change. foker v. The Texas
acoholic Beveraae Comm*n 524 S.W.2d 570 (Tex. Civ. App. -
Dallas 1975, writ ref'd n1r.e.).
     We have found no cases that hold that an election to
change the local option status of a justice precinct whose
boundaries have been changed is to be held in the newly
formed justice precinct. However, this office reached such
a conclusion in Attorney General opinion H-515 (1975).   The
opinion relied on the language of former article 666-32 of
the Penal Auxiliary Laws (now codified as Alcoholic Beverage
Code sections 251.72 and 251.73) to hold that a subsequent
local option election in a precinct whose boundaries had
been changed must be conducted in the territory of the newly
formed precinct. We disagree.
     In our opinion, Section 251.80 codifies the long-
standing judicial interpretation that subsequent elections
must be held in the territory as originally comprised.  In
the bill analysis for the committee substitute for House
Bill 1712, which added section 251.80 to the Alcoholic
Beverage Code, we find the following explanation for the
amendment:
        The substitute also clarifies the ynderlvinq
        princiwle of local option elections, in that
        in order to reverse the status of a justice
        precinct, onlv the voters residina in the
        oriainal territorv should be entitl d to   e
        on the chanae of status . (Hmphasiseadded~~t
     Based upon the constitutional directive to the legisla-
ture to enact statutes regulating local option elections on
the sale and prohibition of liquor in this state and the
judicial decisions discussed above, we are of the opinion
that the legislature did not contravene article XVI, section
20(b), when it enacted section 251.80 of the Alcoholic
Beverage Code.   Nor do we find any inconsistency between
that section and other sections of the Alcoholic Beverage
Code relating to the authorized voting units for such
elections.
     This opinion is necessarily limited to a discussion of
the statute that the legislature has enacted. We believe
the issue in question here to be whether the term "justice
precinct" as used in article XVI, section 20, is broad
enough to encompass the new statutory usage of that term in



                            Pa 6206
Honorable John T. Montford - Page 5    (JM-1177)




section 251.80 of the Alcoholic Beverage Code. Relying     on
Fields and Bouc~,    m,    we conclude that it is.
     We think it important to point out that this opinion
does not consider whether any other statutory system that
the legislature may adopt in the future would necessarily
run afoul of the constitutional provision.    So long as it
operates within the constitutional mandate of article XVI,
section 20, the legislature's authority to prescribe a
statutory framework for local option elections is broad.
     You also suggest that it will be administratively
difficult for.counties to conduct local option elections in
the area that formerly comprised a justice precinct.    This
argument was rejected by the court in m,     a,     at 579.
The Coker court held that the commissioners court faced with
the duty of determining the boundaries of a justice precinct
as it existed almost a century before could "protect all
interested persons by drawing a line approximating the
original boundaries."     The   court reasoned    that   the
commissioners court's "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."      Id.
Attorney General Opinion H-515 (1975) is overruled.

                       SUMMARY
           Section 251.80 of the Alcoholic Beverage
        Code does not violate the requirement of
        article XVI, section 20(b), of the Texas
        Constitution   that   local   option    liquor
        elections be held in certain       authorized
        voting units.     Section   251.80   of    the
        Alcoholic Beverage Code is not inconsistent


                                 Very
                                  truly
        with other provisions of that code. Attorney
        General Opinion H-515 (1975) is overruled.



                                 J iv-at%
                                       A
                                              Y    ,



                                   JIM     MATTOX
                                   Attorney General of Texas
WARYKELLER
First Assistant Attorney General
JUDGE ZOLLIE STEARLBY
Special Assistant Attorney General


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Honorable John T. Montford - Page 6      (JM-1177)


                                                     -,


RENBA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General




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