DAN MORALES

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September 19,199l

Honorable Bill G. Carter chairman Committee on Public Safety Texas House ofRepresentatives P.O.Box2910 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,ofthe 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 forwet/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 ofthe 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 apetition to qualified voters under the followingcircumstances:

If 10 or more qualified voters of any county, justice precinct, or incorporated cityor town file awritten application, the county clerk of the county shall issue to the applicants a petition to be circulated among the qualified voters of rlaat politicalsubdivision

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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 byboth the constitution and by statute to counties, justice ofthe peace precincts, and incorporated cities and towns. Tex. Const. art. XVI, Q20;Alto. Bev. Code $0251.01,251.02, see ulro Attorney General Opinions JM-1177 (1990); JM-468 (1986) and authorities cited therein. These political subdivisions will ordinarily have fixedboundaries that willdetermine the area inwhich the election is held. The only instance inwhich a commissioners court is authorized by statute to exercise discretion in setting the boundaries for a local option liquor election is described in section 251.80ofthe Alcoholic Beverage Code. Subsection (a) ofthat section states: Whenever a local option status is once legally put into

effect as the result ofthe vote in ajustice precinct, such status shall remain in effectuntil the status ischanged asthe result of a vote in the same territory that comprised the precinct when such status was established. If the boundaries of thejustice precinct have changed since such status was established, the commissionerscourtshall,forputposes ofa localoptionelection, define the boundaries of the originalprecinct. 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 ofajustice precinct tobe conducted, not inthe precinct as itexists at the time of the petition for the election, but in the territory that comprised the justice precinct when the local option status wasestablished.1
In Coker v. TexasAlcoholic 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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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, inpart:

[Tlhe commissioners’ court has responsibility to call the election, and we see no reason why it could not protect all interested persons bydrawing a line approximating the original boundaries. Its determination ofthe 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. 524S.W.2dat 579. We believe the intent ofthe~legislature in enacting the emphasized language wasto 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 ofaformerjustice 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 ofthe former justice ofthe peace precinct are clearly defined by public records, the county commissioners have no discretion to define the boundaries differently for purposes ofalocal option election.

2. If an area is currently designated dry by municipal ordinance, can a commissioners court require residents in this area toparticipate inawet/dry election? As noted above, the political subdivision in which a local option liquor election isto be held isdetermined bythe petition that both authorizes and requires the commissioners court to call the election. In Pattonv. TexasLiquor ControlBd., 293S.W.2d99 (Tex. Civ.App.-Austin 1956,writ refd n.r.e.), the court considered a situation inwhich a local option election had been held in only that part ofajustice

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precinct lyingoutside the corporate limits ofa city. The court held that there wasno constitutional or statutory authority for holding a local option election in only part ofajustice 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 ofJustice Precinct No. 3 is void, and that the District Court erred in holding that it was effective to make the sale of liquors within suchportion ofthe precinct illegal.

. . . .We must also bear in mind that iffivevoting boxes can be thus converted into a local option district despite the Constitution then there isno logicalreason whya smaller area, one lot for instance, could not be so created and, perhaps of greater importance, if a non-constitutional area can be made dtyby suchprocedure then itcould by the same token be made wetbysuchprocedure. 293S.W.2dat 101-02. (emphasis inoriginal). Accordingly, only those political subdivisions enumerated in the constitution and statutes may exercise local option through the electoral process prescribed by chapter 251ofthe 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 ofa city that iswithin the political subdivision for which the election is to be held. Whether a municipality hasprohibited the sale ofan 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 oflocal option by election and do not serve to change the local option status adopted by apolitical subdivision pursuant to chapter 251,nor to inhibit the adoption ofnew local option status by the voters. Id. $$ 251.51,251.72.

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3. What agency or agencies are legally responsible for enforcing changes inwet/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 everyphase ofthe alcoholic beverage industry in Texas. Alto. Bev. Code Q5.31. Ofcourse, state and localpolice agencies may enforce state lawswithin their respective jurisdictions. However, certain other officials are given specific duties in certifying the result ofalocal 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 ofalcoholic beverages is effective 30 days after the commissioners court order isentered. Id Ifthe result prohibits the sale ofany alcoholic beverages, it must be posted. Id 9251.54. Regardless ofoutcome, the result is certified to the Alcoholic Beverage Commission and the secretary of state by the county clerk. Id. $ 251.53. When an application ismade for a license or permit to sell alcohol, the county clerk must certify whether aparticular location is“wet”or “dry.”Id. 5 11.37.2 SUMMARY A commissioners court isauthorized 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 ofthe 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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define the boundaries differently forpurposes ofa 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 ofvoters in a portion of a city that is within ,thepolitical subdivision forwhichthe election istobe held.

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

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