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# EATTORNEYGENERAI~ OF TEXAS AUSTIN. **TIEXAS** 

### 787ll

November 12, 1973
The Honorable M.D. Emerson Opinion No. H- 145 County Attorney Lamar County Re: Construction ofArticle Paris, Texas 75460 666-32 1/2(b), Vernon’s Texas Penal Code, local Dear Mr. Emerson: option election deposit You have asked if a deposit of money, paid under Article 666-32 1/2(b) of Vernon’s Texas Penal Code by private individuals for the calling ofa local option election tolegalize the sale ofalcoholic beverages for off premises consumption, should be refunded if no local option election had been held in that political subdivision for many years. You advise: “Paris is an incorporated city in 

### Lamar County, A ‘Petition For Local Option Election To Legalize’ was supplied applicanta.
. . . Applicants were required by the County Clerk to deposit, in cash, $2, 366.75, pursuant to Art. 666-32 1/2(b). The election was held inApril,1972, and the measure was defeated.
. . . [P]rior tothe holding ofthe election, applicants made request ofthe County Clerk to refund the cash deposit of $2,366.75 onthe grounds that no local option election had been held inthe City ofParis within the one year period immediately preceding the election in Paris. , e , “There has been no local option election held inthe City ofParis for many years prior to the election ofApril ofthis year, mentioned above. However, a similar local option election was held in Lamar County ina smkil City newly incorporated.
. Dwithin the one year period immediately preceding the filing ofthe petition
. . . , and another such election was held in [another]
. . . City , . ein Lamar County also within the one-year period. Both are the same type ofpolitical rubdivisi#n as the City of Paris.”



### p. **683**The Honorable M.D. Emerson, page 2 (H-145)

Article 666-32 1/2 ofVernon’s Penal Code provides, in pertinent part:

“(a) The expense ofholding any local option

election authorized bythe Texas Liquor Control Act in any county, justice precinct or incorporated city or town shall be paid bythe carnty, but the expense to the county shall be limited to the holding of one election in each ofthe above po1itica.l subdivisions within a one-year period where the intent ofthe election is to Legalize the sale ofalcoholic beverages

. . . . All other local option elections, excepting the aforementioned one election in a one-year period with intent to legalize the sale ofalcoholic beverages.
. . shall be paid by the county from funds derived by the county as prescribed in Subsection (b)ofthis section as follows:

“(b) When the application for an election ina county, justice precinct or incorporated city or town is presented, the county clerk at the time and before the issuance ofany petition for a local option election shaLLrequire a deposit in the form ofa cashier’s check inthe aggregate amount oftwenty- five cents per voter *
. . * Themoney so received shall be deposited in the county:s general fund, and no refund shall be made to theapplicants regardless ofwhether the petition is returned tothe county clerk or the election is ordered, When there is presented to the county clerk an application which must beaccompanied bya deposit, the county clerk shall not issue a petition to theapplicants unless and until the deposit is made, and a county clerk who issues a petition upon such an application without first receiving the deposit is guiltyof a misdemeanor.
. . .” (emphasis added)

p. 684The Honorable M. D; Emerson, page 3 **(H-145)**

ItAttorney General Opinion M-724 (1970), it was decided that a deposit made with the county clerk pursuant toArticle 666-32 1/2(b) with an application for a “local option election” in a county which had nothad such an election in the preceding one-year period should be refunded to the depositor. Article 666-32 1/2(a) was construed as stating that if no local option election had been held in the preceding one-year period in thesame political subdivision, the expense dthe election is that ofthe county. Ifthere had been such an election in the prior one-year period in that political subdivision, the paragraph (b) requirement for a deposit would become mandatory. The use ofthe phrase “an application which must be accompanied by a deposit” was interpreted as an implied recognition that there are applications which do not require such deposits. Any other construction would change the statute into an “application fee” statute, Opinion M-724 pointed out, and because ofthe failure to adequately describe itas such inthe caption ofthe legislative act inwhich itwas included, would render it invalid. (Article 3, 535, Constitution of Texas). The question ofwhich political subdivisions can hold local option elections is settled byArticle 16, 520, ofthe Texas Constitution. Counties, justice’s precincts, and incorporated cities or towns are onan equal footing. See Article 666-32, V. T.P. C., as’amended (Acts 1973, 63rd Leg., ch. 20, pa 508); Myers v. Martinez, 320 S.W. 2d 862 (Tex. Civ. App., SanAntonio, 1959), error ref.n.r.e., 326 S.W. 2d 171(Tex. 1959). Compare Perkins v. **State, 367** S.W. 2d 140 (Tex. 1963); Warren v. Moore, 337 S.W. 2d 395 (Tex, Civ. App., Amarillo, 1960, writ dism.). Also see Attorney General Opinion M-931 (1971). Therefore, we believe the one-year limitation applies separately to each particular such subdivision. Inour opinion, the private individuals calling for a local option election in Paris should not have been required to make a deposit with the county clerk, and such deposit should be refunded. SUMMARY Because there had been no ,local option liquor election in the City ofParis within a one-year period, no deposit of money should have been required under

p. 685The Honorable M.D. Emerson, page 4 (H-145)

Article 666-32 1/2(b) ofprivate individuals calling for a local option election to legalize the sale ofalcoholic beverages for off premises consumption, and the amount paid should be refunded. Very truly yours,



# v Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

p. 686