DAN MORALES *moRNLy GENBRAL 

QBffice of toe Igttornep fBenera1 

&We of Qexaa 

September 19,199l 

Honorable Bill G. Carter 

chairman 

Committee on Public Safety 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 787682910 

Opinion No. DM- 44 

Re: Whether county commissioners 

have the authority to set boundaries for 

wet/dry elections and other related 

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 Q 251.03 (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, Q 20; 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 

Q 5.31. 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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