May 23, 1990 

Honorable John T. Montford Opinion No. JM-1177 

Chairman 

State Affairs Committee 

Texas State Senate 

P. 0. BOX 12068 

Austin, Texas 78711 

Dear Senator Montford: 

You ask about the 

section 251.80! added by 

Re: Constitutionality of 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 and with article XVI, section 20(b), 

of the Texas Constitution. 

The constitutional provision directs the legislature to 

enact a statutory system for local option elections to 

legalize or prohibit the sale of alcoholic beverages. The 

provision designates the territories in which these elections may be conducted. 

Article XVI, section 20(b) reads: 

The Legislature shall enact a law or laws 

whereby the wfied voters of anv countv. 

sti e s vr inct r incornorated town or 

&ic iay eEy a Zajority vote 

voting, deCermine from time to time 

of those 

whether 

the sale of intoxicating liquors for beverage 

purposes shall be prohibited or legalized 

within the prescribed limits; and such laws 

shall contain provisions for voting on the 

sale of intoxicating liquors of various types 

and various alcoholic content. (Emphasis 

added). 

The statutes enacted to effectuate article XVI, section 20, are codified in the chapter 251 of the Alcoholic 

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

p. 6203 
Honorable John T. Montford - Page 2 (JM-1177) 

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 justice precinct 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 constitutionally designated territories as wauthorized 

voting units" and states that once a local option status is 

adopted in such a unit it may only be changed by a subsequent election in the same authorized unit. 

The constitutional provision and the statutes have been 

consistently interpreted as limiting voting 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 is prompted 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 legally put into effect as the result of 

the vote in a justice nrecinct such status 

shall remain in effect until 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 defined by the commissioners court 

as constituting such original precinct. 

(Emphasis added.) 

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 justice precinct when the local option status 

was established. You ask whether this subsection would 

thwart the constitutional mandate that the election occur in 

a justice precinct by statutorily redefining the affected 

territory as a precinct which no longer exists. 

p. 6204 
Honorable John T. Montford - Page 3 (JM-1177) 

The courts that have considered boundary changes or 

subdivision dissolutions in the local option context have 

interpreted the constitution as requiring that subsequent 

elections to change the local 

original territory.2 In 

option status be 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 court wrote: 

Of course, any such area has 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 & 

9lection must be held in the same area that 

Iv voted 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 of makina it lawful to . . sell intoxicatina liouors 1 bin e area 

griainallv voted dry . (Emph% add::.) 

&& at 555. 

The Rouchin8 court was interpreting the 1935 amendments 

to the constitutional provision 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 

similar result under an earlier version of this constitutional provision. The Fields court rejected the argument 

that a change in justice precinct boundaries affected the 

local option status of the original precinct, 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] repealed by the voters of the same territory which 

originally put 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 it nonetheless continued to 

exist for local option purposes. L 

2. For a thorough discussion of the effect of boundary 

changes on the local option status of voting units within 

Texas and other jurisdictions, m 25 A.L.R.2d Annotation: 

Local Option - Change of Boundaries at 863 - 878. See also 

the cases cited in Houchiga, m. 

P. 6205 
Honorable John T. Montford - Page 4 (JM-1177) 

A recent case repeats the determination that a change 

in a justice precinct boundary has no effect on the local 

option status of the original area and that a subsequent 

local option election must 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 found no cases that hold that an election to 

change the local option status of a justice precinct whose 

boundaries have been changed is to be held in the newly 

formed justice precinct. However, this office reached such 

a conclusion in Attorney General opinion H-515 (1975). The 

opinion relied on the language of former article 666-32 of 

the Penal Auxiliary Laws (now codified 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 changed must be conducted in the territory of the newly 

formed precinct. 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 substitute also clarifies the 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 should be entitl d to 

. (Hmphasiseadded~~t 

e 

on the chanae of status 

Based upon the constitutional directive to the legislature to enact statutes regulating local option elections on 

the sale and prohibition of liquor in this state and the 

judicial decisions discussed above, we are of the opinion 

that the legislature did not contravene article 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 legislature has enacted. We believe 

the issue in question here to be whether the term "justice 

precinct" as used in article XVI, section 20, is broad 

enough to encompass the new statutory usage of that term in 

Pa 6206 
Honorable John T. Montford - Page 5 (JM-1177) 

section 251.80 of the Alcoholic Beverage Code. Relying on 

Fields and Bouc~, m, we conclude that it is. 

We think it important to point out that this opinion 

does not consider whether any other statutory system that 

the legislature may adopt in the future would necessarily 

run afoul of the constitutional provision. So long as it 

operates within the constitutional mandate of article XVI, 

section 20, the legislature's authority to prescribe a 

statutory framework for local option elections is broad. 

You also suggest that it will be administratively 

difficult for.counties to conduct local option elections in 

the area that formerly comprised a justice precinct. This 

argument was rejected by the court in m, a, at 579. 

The Coker court held that the commissioners court faced with 

the duty of determining the boundaries of a justice precinct 

as it existed almost a century before could "protect all 

interested persons by drawing a line approximating the 

original boundaries." The court reasoned that the 

commissioners court's "determination of the boundaries would 

not be exercised under its general power to fix precinct 

boundaries, but would be an administrative determination 

incidental to its power 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 the Alcoholic 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 other provisions of that code. Attorney 

General Opinion H-515 (1975) Very is overruled. truly Y , J 

JIM 

A 

MATTOX 

iv-at% 

Attorney General of Texas 

WARYKELLER 

First Assistant Attorney General 

JUDGE ZOLLIE STEARLBY 

Special Assistant Attorney General 

p. 6207 
Honorable John T. Montford - Page 6 (JM-1177) 

-, 

RENBA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

P- 6208