Untitled Texas Attorney General Opinion

May 23, 1990

Honorable John T. Montford Opinion No. JM-1177
Chairman
State Affairs Committee Re: Constitutionality of sec-
Texas State Senate tion 251.80 of the Alcoholic
P. 0. BOX 12068 Beverage Code (RQ-1929)
Austin, Texas 78711
Dear Senator Montford:
You ask about the effect of Alcoholic Beverage Code
section 251.80! added by 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 elec-
tions 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 of those
voting, deCermine from time to time 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, sec-
tion 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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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 sub-
sequent 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 constitu-
tional 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
sof
b . 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.

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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 option status be held in the
original territory.2 In 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
9
P ele ion t
vote on the ouestion of makina
. . lawful to
it
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 constitu-
tional 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.

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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 long-
standing 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 e
on the chanae of status . (Hmphasiseadded~~t
Based upon the constitutional directive to the legisla-
ture 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

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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

Very
truly
with other provisions of that code. Attorney
General Opinion H-515 (1975) is overruled.

J iv-at%
A
Y ,

JIM MATTOX
Attorney General of Texas
WARYKELLER
First Assistant Attorney General
JUDGE ZOLLIE STEARLBY
Special Assistant Attorney General

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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

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