The Attorne,y General of Texas 

JIM MAlTOX 

Attorney General 

April 4, 1986 

Supreme Court Building 

P. 0. Box 12549 

Austin. TX. 7871% 2548 

5121475-2501 

Telex 910/874-1387 

Telecoplsr 512/475-0266 

714 Jackson, Suite 7W 

Dallas, TX. ‘75202-4509 

2141742-8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905-2793 

9151533-3484 

1001 Texas, Suits 700 

Houston, TX. 77002-3111 

71~22~5888 

606 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747-5238 

4309 N. Tenth, Sulte S 

,&Allen, TX. 79501~1885 

5121882.4547 

Honorable Ray Kallec 

chairmsn 

Comittcc on Law EnEorcement 

Texas House of Repocsentatives 

P. 0. Box 2910 

Austin, Texas 787869 

Opinion No. a-468 

Re: Whether a municipality which 

is located within two counties 

may hold an election ou the issua 

of the sale of mixed alcoholic 

beverages 

Dear Representative Keller: 

You ask whether a municipality which is located within two 

counties may hold au election ou tha issue of tba sale of mixed 

alcoholic beverages. 

You advise u,s that the voters of a Justice precinct located 

wholly within a comty, recently voted "wet" at a local option election 

on the issue of the. sale of mixed alcoholic beverages within the 

precinct. In thirt election, the voters of a city located substantially within 1:he precinct voted overwhelmingly to remain "dry." 

The citizms of t‘m city, which is located in two counties, wish to 

hold an additional electiou for a local option determination for only 

the city. Texas courts have held that a local option election ou the 

issue of the sale of mixed alcoholic beverages for a city 

geographically located in more than one county Is not authorized by 

the Texas Cousti:ution without enabling legislation, and uo such 

legislation has been enacted. 

Article XVI, frectioa 20 of the Texas Constitution provides, in 

200 Main Plaza. suite 4ca 

San Antonio, TX. 78205-2797 

part, that 

512n254191 

Sec. 20. (a) The Legislature shall have the 

power to enact a Mixed Beverage Law regulating the 

An Equal OpportUnityI sale of mixed alcoholic beverages on a local 

Attlrmatlve Actlon Employer option election basis. . . . 

Should the Legislature enact any euabliug laws 

in anti::tpation of this amendmant, uo such law 

shall be void by reason of its anticipatory 

nsture. 

(b) The Legislature shall enact a law or laws 

whereby the qualified voters of any county, 

p. 2143 
Eonorable Kay Keller - Page 2 (JM-468) 

justice's precinct or incorporated town or city, 

< may, by a majorit,y vote of those voting. determine 

from time to tim whether the sale of intoxicating 

liquors for beverage purposes shall be prohibited 

or legalized within the prescribed limits. . . . 

By authority of article XVI, section 20, the legislature enacted 

section 251.73 of the Alccholic Beverage Code "[tlo insure that each 

voter has the maximum poss,Lble control over 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] derived fron 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 legislature 1:c~ enact laws providing for local option 

elections in counties, justice precincts, and incorporated cities. 

Article XVI. section 20 is ,not self-enacting, but grants the legislature the power and duty. 1.0, enact appropriate laws to implement the 

constitutional mandate rc:Lating to local option elections. In 

accordance with that manda~:r:. the legislature enacted the Texas Liquor 

Control Act, which was codified as the Alcoholic Beverage Code in 

1977. and delegated to the commissioners court of eech county the 

right to order a local option election in an incorporated city. The 

Alcoholic Beverage Code provides: 

On proper pel:ition by the required number of 

voters of a county, or of a justice precinct ,r 

incorporated ci~ or town in the county, the 

commissioners cc'urt shall order a local option 

election in the political subdivision to dete&cine 

whether or not the sale of alcoholic beverages of 

one or more of the various types and alcoholic 

contents shall be prohibited or legalized in the 

county, justice precinct, or incorporated city or 

town. (Emphasis added). 

Sec. 251.01. 

The court In Ellis v, Hanks, id. at 176, expressed the opinion --- 

that it is significant that the authority tom hold such an election is 

vested solely in the county commissioners court and not in the 

officials of the incorporated city. The legislature has not enacted 

law to provide the method or machinery for holding a local option 

p. 2144 
Houorable Kay Keller - Page. 3 (JM-468) 

election in an incorporatei. city that is geographically located in two 

separate counties. The c~omeissioners court of ona county is not 

authorized to order and direct an election in 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); 

Laupson v. South Park Indgendent School District, 698 S.W.2d 407, 422 

(Tax. App. - Beaumont 1985,-no writ). 

The same court in 1:111s v. Hanks pointed out that certain 

provisions, which now ori-codified in the Alcoholic Beverage Code, 

indicate that the legislature intended to delegate to the commissioners court authority to hold elections in cities located wholly 

within the limits of the county. A county commissioners court is 

constitutioually restricted to county business within the limits of 

the county. See Tex. Const. art. V, $18; Burke v. Butcheson, id. at 

314. Sectiou251.40 of thla Alcoholic Beverage Code provides thaTthe 

county shall pay the axpenrc of holding a local option election in the 

county, justice precinct, or incorporated city in that countI. A 

commissioners court has nc authority to pay expenses of an election 

held outside the county. Section 251.34 specifies that the election 

shall be held at e voting place in each election precinct establlshedby the governing body of the city for its municipal elections and if 

the governing body has nat established precincts for its municipal 

elections, the comnissiorers court shall prescribe the' election 

precincts for the local q)tion election. Having no power or jurisdiction beyond the limits of the county , a cowmissioners court has no 

power to regulate voting precincts in a part of a city that is located 

in a separate county. See Eillis v. Banks, at 176, 177. -- 

It has been suggested that there must be a procedure by which 

cities located in two counties may exercise the constitutional right 

of self-determination through local option elections ou the issue of 

alcoholic beverages. A coue~titutioual provision that contemplates and 

requires legislation, such as article XVI, section 20. is not selfexecuting. The constitution may direct the legislature to enact laws 

to carry out a principle ~established by the constitution, but the 

power and duty to do so belongs exclusively to the legislature and no 

relief can be granted in the courts for the legislature's failure to 

act. See City of Corpus Christ1 v. City of Pleasanton, 276 S.W.2d 

798, 8r(Tex. 1955); Lhtrran v. 

Ai~~xr, 

Gabler, 215 S.W.2d 155, 162 (Tex. 

1948). Cf. Aston v. 91 S.W.2d 852, 854 (Tex. Civ. App. - 

Dallas 1936. uo writ)(~&ision of constitution that is selfexecuting and exists indepkndent of statutes). The court in Ellis v. 

Banks also stated that it would be completely beyond 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 legislative and not .judicial, must 

be obtained from the 1egis:stture. 

p. 2145 
Honorable Ray Keller - Page 4 (JM-468) 

It also has been suggested that a city has a statutory right to a 

local option election under section 251.73, since it provides that the 

result of a duly called election in a city prevails over the result of 

a duly called electiou iu a justice precinct or county. Section 

251.73 relates to a duly called election and. iu the case of a city 

located in two counties, the Alcoholic Beverage Code does not provide 

for a duly called election. 

SUMMARY 

Article XVI, :%ectiou 20, of the Texas Coastitution is not cielf-euacting. Texas statutes 

authorize only tcs county comuissioners court to 

order a local option election in au incorporated 

city on the ISSUE of the sale of mired alcoholic 

beverages. The county commissioners court does 

not have authority or power to order and direct a 

local option election in a city lying partly in 

two counties. 

JIM MATTOX 

Attorney General of Texas 

JACKBIGRTONRR 

First Assistant Attorney Gtncral 

MARY KELLER 

Executive Assistant Attorney Geueral 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee: 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 2146