                                 The Attorne,y General of Texas

JIM MAlTOX                                         April 4, 1986
Attorney General



Supreme Court Building           HonorableRay Kallec                OpinionNo. a-468
P. 0. Box 12549                  chairmsn
Austin. TX. 7871% 2548           Comittcc on Law EnEorcement        Re: Whether a municipalitywhich
5121475-2501                     Texas House of Repocsentatives     is located within two counties
Telex 910/874-1387
Telecoplsr   512/475-0266
                                 P. 0. Box 2910                     may hold an electionou the issua
                                 Austin,Texas 787869                of the sale of mixed alcoholic
                                                                    beverages
714 Jackson, Suite 7W
Dallas, TX. ‘75202-4509
                                 Dear Representative
                                                   Keller:
2141742-8944

                                     You ask whether a municipalitywhich is located within two
4824 Alberta   Ave., Suite 160   counties may hold au election ou tha issue of tba sale of mixed
El Paso, TX. 79905-2793          alcoholicbeverages.
9151533-3484

                                      You advise u,s that the voters of a Justice precinct located
1001 Texas, Suits 700
                                 wholly within a comty, recentlyvoted "wet" at a local option election
Houston, TX. 77002-3111          on the issue of the.sale of mixed alcoholic beverages within the
71~22~5888                       precinct. In thirtelection, the voters of a city located sub-
                                 stantiallywithin 1:heprecinctvoted overwhelminglyto remain "dry."
                                 The citizms of t‘m city, which is located in two counties,wish to
606 Broadway, Suite 312
Lubbock. TX. 79401.3479
                                 hold an additionalelectioufor a local option determinationfor only
8061747-5238                     the city. Texas courts have held that a local option electionou the
                                 issue of the sale of mixed alcoholic beverages for a city
                                 geographicallylocated in more than one county Is not authorizedby
4309 N. Tenth, Sulte S
                                 the Texas Cousti:utionwithout enabling legislation,and uo such
,&Allen,  TX. 79501~1885
5121882.4547
                                 legislationhas been enacted.

                                     Article XVI, frectioa20 of the Texas Constitutionprovides, in
200 Main Plaza. suite 4ca        part, that
San Antonio, TX. 78205-2797
512n254191
                                             Sec. 20. (a) The Legislatureshall have the
                                          power to enact a Mixed BeverageLaw regulatingthe
An Equal OpportUnityI                     sale of mixed alcoholic beverages on a local
Attlrmatlve Actlon Employer               option electionbasis. . . .

                                             Should the Legislatureenact any euabliug laws
                                          in anti::tpation of this amendmant,uo such law
                                          shall be void by reason of its anticipatory
                                          nsture.

                                             (b) The Legislatureshall enact a law or laws
                                          whereby the qualified voters of any county,



                                                      p. 2143
EonorableKay Keller - Page 2     (JM-468)




         justice'sprecinct or incorporatedtown or city,
   <     may, by a majorit,y
                           vote of those voting. determine
         from time to tim whether the sale of intoxicating
         liquors for beverage purposesshall be prohibited
         or legalizedwithin the prescribedlimits. . . .

    By authorityof articleXVI, section20, the legislatureenacted
section 251.73 of the AlccholicBeverage Code "[tlo insure that each
voter has the maximum poss,Lble
                              controlover the status of the sale of
alcoholic beverages in the area where he resides.. . ." Section
251.73 provides that the result of a duly called election for an
incorporated city prevails against the result of a duly called
election in a justice precinct or county in which the incorporated
city is located. See d.so. Coker v. Texas Alcoholic Beverage
Commission,524 S.W.2d 57C8,574 (Tex. Civ. App. - Dallas 1975. writ
ref'd n.r.e.).

      "The right to hold go.election is not inherent in the people
but . . . [is] derivedfron the law." Ellis v. Banks, 478 S.W.2d 172,
176 (Tex. Civ. App. - Dallrrr;
                            1972,writ ref'd n.r.e.1 (and cases cited
therein).   Article XVI, section 20(b) of the Texas Constitution
directs the legislature1:c~enact laws providing for local option
elections in counties, justice precincts, and incorporatedcities.
ArticleXVI. section20 is ,notself-enacting,  but grants the legisla-
ture the power and duty.1.0, enact appropriatelaws to implement the
constitutionalmandate rc:Latingto local option elections. In
accordancewith that manda~:r:.the legislatureenactedthe Texas Liquor
Control Act, which was codified as the Alcoholic Beverage Code in
1977. and delegated to the commissionerscourt of eech county the
right to order a local option electionin an incorporatedcity. The
AlcoholicBeverageCode provides:

            On proper pel:itionby the required number of
          votersof a county, or of a justice precinct,r
         incorporatedci~ or town in the county,      the
         commissionerscc'urtshall order a local option
         electionin the politicalsubdivisionto dete&cine
         whether or not the sale of alcoholicbeveragesof
         one or more of the various types and alcoholic
         contents shall be prohibitedor legalizedin the
         county, justice precinct,or incorporatedcity or
         town. (Emphasisadded).

Sec. 251.01.

     The court In Ellis v,---
                            Hanks, id. at 176, expressedthe opinion
that it is significantthat the authoritytomhold such an electionis
vested solely in the county commissionerscourt and not in the
officialsof the incorporatedcity. The legislaturehas not enacted
law to provide the method or machinery for holding a local option




                               p. 2144
HouorableKay Keller - Page.3     (JM-468)




electionin an incorporatei.
                          city that is geographicallylocatedin two
separate counties. The c~omeissioners court of ona county is not
authorizedto order and direct an electionin a city lying partly in
two counties. See Burke v.FLutcheson,537 S.W.2d 312, 314 (Tex. Civ.
APP. - Eastland-76, writ ref'd n.r.e.). See also Gregg6 v. Faulk,
343 S.W.2d 543, 545 (Tar. Civ. App. - Fort Worth 1961. no writ);
Laupsonv. South Park Indgendent SchoolDistrict,698 S.W.2d407, 422
(Tax.App. - Beaumont1985,-nowrit).

     The same court in 1:111sv. Hanks pointed out that certain
provisions,which now ori-codified in the Alcoholic Beverage Code,
indicate that the legislatureintended to delegate to the commis-
sioners court authority to hold elections in cities located wholly
within the limits of the county. A county commissionerscourt is
constitutioually restrictedto county business within the limits of
the county. See Tex. Const. art. V, $18; Burke v. Butcheson,id. at
314. Sectiou251.40 of thlaAlcoholicBeverageCode providesthaTthe
county shall pay the axpenrcof holdinga local optionelectionin the
county, justice precinct, or incorporatedcity in that countI. A
commissionerscourt has nc authorityto pay expenses of an election
held outside the county. Section 251.34 specifiesthat the election
shall be held at e voting place in each electionprecinctestabllshed-
by the governingbody of the city for its municipalelectionsand if
the governingbody has nat establishedprecincts for its municipal
elections, the comnissiorerscourt shall prescribe the' election
precinctsfor the local q)tion election. Having no power or juris-
dictionbeyond the limits of the county, a cowmissionerscourt has no
power to regulatevoting precinctsin a part of a city that is located
in a separatecounty. -- See Eillis
                                 v. Banks, at 176, 177.

     It has been suggestedthat there must be a procedureby which
cities located in two countiesmay exercise the constitutionalright
of self-determination through local option electionsou the issue of
alcoholicbeverages. A coue~titutioual provisionthat contemplatesand
requires legislation,such as article XVI, section 20. is not self-
executing. The constitutionmay direct the legislatureto enact laws
to carry out a principle ~established  by the constitution,but the
power and duty to do so belongs exclusivelyto the legislatureand no
relief can be granted in the courts for the legislature'sfailure to
act. See City of Corpus Christ1 v. City of Pleasanton,276 S.W.2d
798, 8r(Tex.    1955); Lhtrran v. Gabler, 215 S.W.2d 155, 162 (Tex.
1948). Cf. Aston v. Ai~~xr, 91 S.W.2d 852, 854 (Tex. Civ. App. -
Dallas 1936. uo writ)(~&ision       of constitution that is self-
executingand exists indepkndentof statutes). The court in Ellis v.
Banks also stated that it would be completelybeyond the power of the
COUTt to attempt to prwida the method and machinery for holding a
local option election in a city located in two counties and that
relief from such a situation,being legislativeand not .judicial,must
be obtainedfrom the 1egis:stture.




                               p. 2145
HonorableRay Keller - Page 4     (JM-468)




     It also has been suggestedthat a city has a statutoryright to a
local option electionunder section251.73,since it providesthat the
result of a duly calledelectionin a city prevailsover the result of
a duly called electiou iu a justice precinct or county. Section
251.73 relates to a duly called electionand. iu the case of a city
locatedin two counties,the AlcoholicBeverageCode does not provide
for a duly called election.

                           SUMMARY

            Article XVI, :%ectiou20, of the Texas Coasti-
         tution is not cielf-euacting.Texas statutes
         authorizeonly tcs county comuissionerscourt to
         order a local option election in au incorporated
         city on the ISSUE of the sale of mired alcoholic
         beverages. The county commissionerscourt does
         not have authorityor power to order and direct a
         local option election in a city lying partly in
         two counties.




                                         JIM    MATTOX
                                         AttorneyGeneralof Texas

JACKBIGRTONRR
First AssistantAttorneyGtncral

MARY KELLER
ExecutiveAssistantAttorneyGeueral

ROBERT GRAY
SpecialAssistantAttorneyGeneral

RICK GILPIN
Chairman,OpinionCommittee:

Preparedby Nancy Sutton
AssistantAttorneyGeneral




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