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# The Attorney General of Texas April 19, 1979 MARK WHITE Attorney General
Honorable Bill Coody, Chairman Liquor Regulation Committee House ofRepresentatives Austin, Texas Opinion No.m-12 Re: Frequency at which local option elections onthe legal sale of alcoholic beverages maybeheld. Dear Representative Coody: You have requested our opinion in reference to the interpretation of section 251.17of the Alcoholic Beverage Code. That section provides:

Nolocal option election on aparticular issue may be held in a political subdivision until one year has elapsed since the last local option election in that subdivision onthat issue. Your question is whether a local option election on the sale of alcoholic beverages is prohibited if it would present a ballot proposition which is identical to a proposition approved less than ayear before in the same subdivision. Section 251.14of the Alcoholic Beverage Code sets out eight possible wordings for a local option ballot. It has been established that every one of these eight propositions constitutes a separate issue for purposes of section 251.17. Fox v. Burgess, 302S.W.2d405(Tex. 1957). Yourquestion iswhether identical ballot propositions present different issues when one ispresented in alegalizing election and the other ispresented in aprohibitory election. Whenalocal option election isheld, the wording will always be “for (or against) the legal sale” ofaparticular type of alcoholic beverage. There is no difference in the wording of the proposition between a legalizing and a prohibitory election: however, the statutes treat the propositions differently depending on whether they are legalizing or prohibitory. For example, the wording ofapetition will vary depending on whether it seeks alegalizing or prohibitory election. Alcoh. Bev. Code, SS251.04, 251.05, 25107, 251.08. The effect of the vote will depend on the nature of the election as a legalizing or prohibitory election. Alcoh. Bev. Code, S251.51. County financing ofthe election may depend on whether the election is to legalize

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or prohibit. Alcoh. Bev. Code S251.40. Wehave examined the language in the various statutes discussing the issues tobe placed on the ballot, and it is consistent both with an interpretation that a ballot proposition can present only a single issue or with an interpretation that a ballot proposition will present one of two issues depending on whether it isalegalizing orprohlbitory election. The predecessors to sections 251.14 and 251.17 were discussed in Mitchell v. McCharen, 119S.W.2d 676(Tex. Civ. App.-San Antonio 19381,writ dism’dper curiam, 121 S.W.2d 1055(1938). Unlike the present statute, the law at,that time provided a different wording on the ballot if the election was a prohibitory one rather than a legalizing one. The statute listed several different wordings which might be placed on the ballot. Acts 1937, 45th Leg., 1st Called Seas., ch. 13,at 1765-1766. Nevertheless, the court said that these different propositions constituted only three issues. Mitchell, - at 677. This conclusion was adopted by the Texas Supreme Court. Fox, w at 407. The three issues discussed in Mitchell are equivalent to the eight bat propositions permitted under current law. Under the Mitchell and Fox rationale webelieve that the submission of a ballot proposition constitutes the same issue whether it is submitted in a prohibitory or a legalizing election. The eight ballot propositions set out in section 251.14constitute all the possible issues which may be presented. Thus, the same ballot proposition in a local option election on the legal sale of alcoholic beverages may not be submitted twice within atwelve-month period. SUMMARY

Alocal option election onthe legal sale ofalcoholic beverages may be held only one time per year in a political subdivision on a particular issue. Aballot proposition presents the same issue as an earlier proposition if it contains identical language even if one election is designed as a legalizing election and the other is designed as aprohibitory election. A



# AM

MARK WHITE Attorney General of Texas JOHN W.FAINTER, JR. First-Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General. Prepared byC. Robert Heath Assistant Attorney General

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APPROVED: OPINIONCOMMITTEE C.Robert Heath, Chairman David B.Brooks Rick Gilpin Walter Davis Reed Lockhoof William GReid Bruce Youngblood

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