L 3 

EATTORNEYGENERAI~ 

OF TEXAS 

AUSTIN. TIEXAS 787ll 

November 12, 1973 

The Honorable M.D. Emerson Opinion No. H- 145 

County Attorney 

Lamar County Re: Construction of Article 

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 of a 

local option election to legalize the sale of alcoholic 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 in April,1972, 

and the measure was defeated. . . . [P]rior to the holding 

of the election, applicants made request of the County Clerk 

to refund the cash deposit of $2,366.75 on the grounds that 

no local option election had been held in the City of Paris 

within the one year period immediately preceding the election in Paris. , e , 

“There has been no local option election held in the 

City of Paris for many years prior to the election of April 

of this year, mentioned above. However, a similar local 

option election was held in Lamar County in a smkil City 

newly incorporated. . D within the one year period immediately preceding the filing of the petition . . . , and another 

such election was held in [another] . . . City , . e in Lamar 

County also within the one-year period. Both are the same 

type of political rubdivisi#n as the City of Paris.” 

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

Article 666-32 1/2 of Vernon’s Penal Code provides, in pertinent 

part: 

“(a) The expense of holding any local option 

election authorized by the Texas Liquor Control Act 

in any county, justice precinct or incorporated city 

or town shall be paid by the carnty, but the expense 

to the county shall be limited to the holding of one 

election in each of the above po1itica.l subdivisions 

within a one-year period where the intent of the 

election is to Legalize the sale of alcoholic beverages 

. . . . All other local option elections, excepting the 

aforementioned one election in a one-year period with 

intent to legalize the sale of alcoholic beverages. . . 

shall be paid by the county from funds derived by the 

county as prescribed in Subsection (b) of this section 

as follows: 

“(b) When the application for an election in a 

county, justice precinct or incorporated city or town 

is presented, the county clerk at the time and before 

the issuance of any petition for a local option election 

shaLL require a deposit in the form of a cashier’s check 

in the aggregate amount of twenty- five cents per voter 

* . . * The money so received shall be deposited in 

the county:s general fund, and no refund shall be made 

to the applicants regardless of whether the petition is 

returned to the county clerk or the election is ordered, 

When there is presented to the county clerk an application which must be accompanied by a deposit, the county 

clerk shall not issue a petition to the applicants 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. 684 
The Honorable M. D; Emerson, page 3 (H-145) 

It Attorney General Opinion M-724 (1970), it was decided that a 

deposit made with the county clerk pursuant to Article 666-32 1/2(b) 

with an application for a “local option election” in a county which had 

not had 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 the same political subdivision, the expense dthe election is that 

of the county. If there 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 of the 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 of the failure to adequately 

describe it as such in the caption of the legislative act in which it was included, would render it invalid. (Article 3, 5 35, Constitution of Texas). 

The question of which political subdivisions can hold local option 

elections is settled by Article 16, 5 20, of the Texas Constitution. Counties, 

justice’s precincts, and incorporated cities or towns are on an 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., San Antonio, 

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. 

In our 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 of Paris within a one-year period, 

no deposit of money should have been required under 

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

Article 666-32 1/2(b) of private individuals calling for 

a local option election to legalize the sale of alcoholic 

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