# 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 TexasHouse of Repocsentatives P. 0. Box 2910 Austin,

Texas 787869 Opinion No. a-468

Re: Whethera 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 countiesmay 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 whollywithin a comty,recently voted "wet" at a local optionelection on the issue of the.sale of mixed alcoholicbeverageswithin the precinct. In thirtelection, the voters of a city located substantially

within 1:he

precinctvoted overwhelmingly to remain "dry." The citizms of t‘m city, which is located in two counties, wish to hold an additional electioufor a local optiondetermination for only the city. Texas courtshave 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 Legislatureshall have the power to enacta Mixed Beverage Law regulating

the An Equal OpportUnityI sale of mixed alcoholic beverages on a local Attlrmatlve Actlon Employer optionelection basis.

. . . Should the Legislature enact any euabliuglaws 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. 2143Eonorable Kay Keller - Page 2 (JM-468)

justice'sprecinctor incorporated town or city,
< may, by a majorit,y vote of thosevoting.determine from time to tim whether the sale of intoxicating liquors for beveragepurposesshallbe prohibited or legalized

within the prescribed limits.

. . . By authority

of article

XVI, section20, **the** legislature enacted section 251.73 of the Alccholic BeverageCode "[tlo insure that each voter has the maximumposs,Lble controlover the statusof the sale of alcoholicbeverages in the area where he resides.

. . ." Section 251.73 provides that the result of a duly called election for an incorporatedcity prevails against the result of a duly called election in a justice precinct or county in which the incorporated city is located. d.so. See Coker v. Texas Alcoholic Beverage Commission,

524 S.W.2d 57C8,

574 (Tex. Civ. App. - Dallas 1975. writ ref'dn.r.e.).
"The right to hold go.election is not inherent in the people but

. . . [is] derivedfron **the** law." Ellisv. Banks, 478 S.W.2d 172, 176 (Tex.Civ. App. - Dallrrr; 1972,writ ref'dn.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 incorporated cities. ArticleXVI. section20 is ,not self-enacting,

but grants the legislature the power and duty. 1.0, enact appropriate

laws to implementthe constitutional

mandate rc:Lating to local option elections. In accordance

with that manda~:r:. the legislature

enactedthe Texas Liquor Control Act, which was codified as the AlcoholicBeverage Code in 1977. and delegated to the commissioners **court** of eech county the right to order a local option electionin an incorporated city. The Alcoholic

Beverage

Code provides:

On proper pel:ition by the requirednumber of **voters** of a county, or of a justiceprecinct ,r incorporatedci~ **or town**  **in the**  **county, the**  commissioners

cc'urt shall order a local option electionin the political subdivision

to dete&cine whether or not the sale of alcoholic beverages

of one or **more** of the various types and alcoholic contentsshall be prohibited or legalizedin the county, justiceprecinct, or incorporated

city or town. (Emphasis

added).
Sec. 251.01.
The court In Ellis v, Hanks, id. at 176, expressedthe opinion --- that it is significant that the authority tom hold such an electionis 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. 2144Houorable Kay Keller - Page.

3 (JM-468)

election

in an incorporatei.

city that is geographically locatedin two separate counties. The c~omeissioners court of ona county is not authorized

to 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 Gregg6v. 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.2d407, 422 (Tax. App. - Beaumont1985,-no writ).
The same court in 1:111s v. Hanks pointed out that certain provisions,

which now ori-codified in the AlcoholicBeverage Code, indicate that the legislatureintended to delegate to the commissioners court authorityto hold elections in cities locatedwholly within the limits of the county. A county commissioners court is constitutioually

restrictedto county businesswithin the limits of the county. See Tex. Const. art. V, $18; Burke v. Butcheson, id. at 314. Sectiou251.40 of thla Alcoholic

BeverageCode providesthaTthe countyshallpay the axpenrcof holdinga local optionelectionin the county, justice precinct, **or** incorporated city in that countI. A commissioners

court has nc authorityto pay expensesof an election held outside the county. Section 251.34 specifiesthat the election shallbe held at e **voting** place in each election precinctestabllshedby the governing

body of the city for its municipalelections and if the governing

body has nat established precincts for its municipal elections, the comnissiorerscourt shall prescribe the' election precinctsfor the local q)tion election. Having no power or jurisdiction

beyond **the** limitsof the county , a cowmissioners

courthas no power to regulate

votingprecincts

in a part of a city that is located in a separate

county. See Eillis

v. Banks, at 176, 177. -- It has been suggestedthat there must be a procedure by which cities located in two counties may exercisethe 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 articleXVI, 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 failureto act. See City of Corpus Christ1v. 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 constitutionthat is selfexecuting

and exists indepkndent of statutes). The court in Ellisv. Banks also statedthat it wouldbe 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 obtainedfrom the 1egis:stture.

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

It also has been suggested that a cityhas a statutory right to a local optionelection under section251.73,since it providesthat the resultof a duly calledelectionin a city prevails over the resultof 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 Alcoholic

BeverageCode does not provide for a duly calledelection.
SUMMARY

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

Generalof Texas
JACKBIGRTONRR FirstAssistant

Attorney

Gtncral

MARY KELLER Executive

Assistant

Attorney

Geueral
ROBERTGRAY Special

Assistant

Attorney

General
RICK GILPIN Chairman,

OpinionCommittee: Prepared

by Nancy Sutton Assistant

Attorney

General

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