May 23, 1990

HonorableJohn T. Montford OpinionNo. JM-1177 Chairman StateAffairs Committee Texas State Senate P. 0. BOX 12068 Austin, Texas 78711

Dear SenatorMontford:

**You ask**  about the section 251.80! added by Re: Constitutionalityof section 251.80 of the Alcoholic Beverage Code (RQ-1929)

effect of Alcoholic Beverage Code the 71st Legislature.1 You suggest

. . . that the section conflicts with section 251.01 of the Alcoholic Beverage Code andwith article XVI, section 20(b), of the Texas Constitution.
The constitutionalprovisiondirects the legislatureto enact a statutory system for local option elections to legalize or prohibit the sale of alcoholicbeverages. The provisiondesignates the territories in which these electionsmay be conducted.
Article XVI, section 20(b) reads:
The Legislatureshall enact a law or laws whereby thewfied voters of anv countv. sti e s vr inct r incornorated town or &ic iay eEy a Zajority vote voting, deCermine **from** time to timeof those whether the sale of intoxicatingliquors forbeverage purposes shall be prohibited or legalized within the prescribed limits;and such laws shall contain provisions for voting on the sale of intoxicatingliquors of various types and various alcoholic content. (Emphasis added).
The statutes enacted to effectuate articleXVI, section 20, are codified in the chapter 251 of the Alcoholic

1. Acts 1989, 71st Deg., ch. 435, S 2, at 1582.

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Beverage Code. Section 251.01 provides for an election on presentation of a proper petition "by the required number of voters of a county, or of a justiceprecinct or incorporated city or town." Similarly, sections 251.72 and 251.73 refer to the retention of a particular local option status within each of these named jurisdictions. Section 251.72 refers to the constitutionallydesignated territories as wauthorized voting units" and states that once a local option status is adopted in such a unit itmay only be changed by a subsequent election in the same authorizedunit.
The constitutionalprovision and the statuteshave been consistently interpretedas limitingvoting on local option issues to the territorial units specified in the constitutional provision. Smith v. Breedlove, 399 S.W.2d 404 (Tex. Civ.App. - Eastland 1966); pp a, 293 S.W.2d 99 (Tex.Civ.App. -Austin 1956,writ ref'd n.r.e.).

Your question isprompted by the recent addition of section 251.80 to the Alcoholic Beverage Code. Subsection (a)of that section reads as follows:

(a) Whenever a local option status is once legallyput into effect as the result of the vote in a justice nrecinct such status shall remain in effectuntil Che status * changed as the result of a vote in the 2 territorv that comvrised the nrecinct when such status was establrshed. If the bsofthe have chanaeddce such status was establisu & '

one of a local ontron election. d&e the b sof

. A local option election zay be held within the territory definedby the commissioners court as constituting such original precinct. (Emphasisadded.)
The provision requires an election attempting to change the local option status of a justice precinct to be conducted,not in the precinct as it exists at the time of the petition for the election, but in the territory that comprised the justiceprecinctwhen the local option status was established. You ask whether this subsection would thwart the constitutionalmandate that the election occur in a justiceprecinct by statutorily redefining the affected territory as a precinctwhich no longer exists.

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The courts that have consideredboundary changes or subdivisiondissolutions in the local option context have interpretedthe constitutionas requiring that subsequent elections to change the local original territory.2 In option statusbe held in the m, 110 S.W.2d 549 (Tex. 1937), the Texas Supreme Court faced the question of the local option status of a dissolved city that had earlier voted as a city to prohibit the sale of intoxicating liquors within its territory. The courtwrote:

Of course, any such areahas the right to become wet by so voting at an election legally ordered and held for that purpose under present local option statutes. In this connection,however,we.again note that & 9lectionmust be held in the same area that

Ivvoted dry

. . . . [W]hile it is true that the citv of Houston Heiahts has lona since . .

ce;sed to exist as. a mun1- cornoration. s 111 it vet exists for the P 9 ele ion t vote on the ouestion ofmakina it lawful to

. . sell intoxicatina liouors 1 bin e area griainallvvoted dry

. (Emph% add::.)

&& at 555. The Rouchin8 courtwas interpretingthe 1935 amendments to the constitutionalprovision that appear in our present constitution. It affirmed the holding of & carte Fields, 86 S.W. 1022 (Tex.Crim. App. 1905),which had reached a similarresult under an earlierversion of this constitutionalprovision. The Fields court rejected the argument that a change in justiceprecinct boundaries affected the local option status of the originalprecinct, and repeated the rule of earlier cases that local option once adopted in a given territory remains the law of that territory "until [it is] repealedby the voters of the same territory which originallyput it into operation." & at 1023. Conceding that the old justice precinct in which local option was adopted no longer existed as a precinct for judicial purposes, the court stated that itnonetheless continued to exist for local optionpurposes. L

2. **For** a thoroughdiscussionof the effect of boundary changes on the local option status of voting units within Texas and other jurisdictions, m 25A.L.R.2d Annotation: Local Option - Change of Boundaries at 863 - 878. See also the cases cited inHouchiga,m.

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A recent case repeats the determination that a change in a justiceprecinct boundaryhas no effect on the local option status of the original area and that a subsequent local option electionmust be conducted in the territory as it existed before the boundary change. foker v. The Texas acoholic Beveraae Comm*n 524 S.W.2d 570 (Tex.Civ.App. - Dallas 1975,writ ref'd n1r.e.).

We have foundno cases that hold that an election to change the local option status of a justiceprecinct whose boundaries have been changed is to be held in the newly formed justiceprecinct. However, this office reached such a conclusion inAttorney General opinion H-515 (1975). The opinion relied on the language of formerarticle 666-32 of the PenalAuxiliary Laws (nowcodified as Alcoholic Beverage Code sections 251.72 and 251.73) to hold that a subsequent local option election in a precinct whose boundaries had been changedmust be conducted in the territory of the newly formedprecinct. We disagree.

In our opinion, Section 251.80 codifies the longstanding judicial interpretation that subsequent elections must be held in the territory as originally comprised. In the bill analysis for the committee substitute for House Bill 1712, which added section 251.80 to the Alcoholic Beverage Code, we find the following explanation for the amendment:

The substitutealso clarifiesthe ynderlvinq princiwle of local option elections, in that in order to reverse the status of a justice precinct, onlv the voters residina in the oriainal territorv shouldbe entitl d to

. (Hmphasiseadded~~t e on the chanae of status
Basedupon the constitutionaldirective to the legislature to enact statutes regulating local option elections on the sale and prohibition of liquor in this state and the judicial decisionsdiscussed above,we are of the opinion that the legislaturedid not contravenearticle XVI, section 20(b),when it enacted section 251.80 of the Alcoholic Beverage Code. Nor do we find any inconsistency between that section and other sections of the Alcoholic Beverage Code relating to the authorized voting units for such elections.
This opinion is necessarily limited to a discussion of the statute that the legislaturehas enacted. We believe the issue in questionhere to be whether the term "justice precinct" as used in article XVI, section 20, is broad enough to encompass the new statutoryusage of that term in

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section 251.80 of the Alcoholic Beverage Code. Relying on Fields and Bouc~, m, we conclude that it is.

We think it importantto point out that this opinion does not consider whether any other statutory system that the legislaturemay adopt in the futurewould necessarily run afoul of the constitutionalprovision. So long as it operateswithin the constitutional mandate of article XVI, section 20, the legislature's authority to prescribe a statutory framework for local option elections isbroad.

You also suggest that it will be administratively difficult for.countiesto conduct local option elections in the area that formerly compriseda justiceprecinct. This argumentwas rejectedby the court inm, a, at 579. The Coker courtheld that the commissionerscourt facedwith the duty of determining the boundaries of a justiceprecinct as it existed almost a centurybefore could "protect all interestedpersons by drawing a line approximating the original boundaries." The court reasoned that the commissionerscourt's "determinationof the boundarieswould not be exercised under its generalpower to fix precinct boundaries,but would be an administrative determination incidental to itspower to order an election, and would control unless clearly erroneous or arbitrary." Id. Attorney General Opinion H-515 (1975)is overruled.

SUMMARY Section 251.80 of theAlcoholic Beverage Code does not violate the requirement of article XVI, section 20(b), of the Texas Constitution that local option liquor elections be held in certain authorized voting units. Section **251.80** of the Alcoholic Beverage Code is not inconsistent with otherprovisions of that code. Attorney General OpinionH-515 (1975)is overruled. 

# Very truly

**Y**
**,** 

# J iv-at%

**A** JIM MATTOX Attorney General of Texas

WARYKELLER **First** AssistantAttorney General

JUDGE ZOLLIE STEARLBY SpecialAssistantAttorney General

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-,

RENBA HICKS SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee Preparedby Karen C. Gladney AssistantAttorney General

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