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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




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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.




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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




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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.




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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).




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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




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