i. 

The Attorney General of Texas 

April 19, 1979 

MARK WHITE 

Attorney General 

Honorable Bill Coody, Chairman 

Liquor Regulation Committee 

House of Representatives 

Austin, Texas 

Opinion No. m-12 

Re: Frequency at which local 

option elections on the legal sale of 

alcoholic beverages may be held. 

Dear Representative Coody: 

You have requested our opinion in reference to the interpretation of 

section 251.17 of the Alcoholic Beverage Code. That section provides: 

No local option election on a particular issue may be 

held in a political subdivision until one year has 

elapsed since the last local option election in that 

subdivision on that 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 a year before in the 

same subdivision. 

Section 251.14 of 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, 302 S.W.2d 405 (Tex. 1957). Your question is whether 

identical ballot propositions present different issues when one is presented in 

a legalizing election and the other is presented in a prohibitory election. 

When a local option election is held, the wording will always be “for (or 

against) the legal sale” of a particular 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 of a petition will vary depending on whether it seeks a legalizing or 

prohibitory election. Alcoh. Bev. Code, SS 251.04, 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, S 251.51. County 

financing of the election may depend on whether the election is to legalize 

P- 34 
.- 

Honorable Bill Coody - Page Two (NW-12) 

or prohibit. Alcoh. Bev. Code S 251.40. We have examined the language in the various 

statutes discussing the issues to be 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 is a legalizing or prohlbitory election. 

The predecessors to sections 251.14 and 251.17 were discussed in Mitchell v. 

McCharen, 119 S.W.2d 676 (Tex. Civ. App. -San Antonio 19381, writ dism’d per 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 we believe 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 251.14 constitute 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 

a twelve-month period. 

SUMMARY 

A local option election on the legal sale of alcoholic beverages may 

be held only one time per year in a political subdivision on a 

particular issue. A ballot 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 a prohibitory election. A 

AM 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First-Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General. 

Prepared by C. Robert Heath 

Assistant Attorney General 

p. 35 
. . 

Honorable Bill Coody - Page Three (NW-12) 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Rick Gilpin 

Walter Davis 

Reed Lockhoof 

William G Reid 

Bruce Youngblood 

P. 36