i.
The Attorney General of Texas
April 19, 1979
MARK WHITE
Attorney General
Honorable Bill Coody, Chairman Opinion No. m-12
Liquor Regulation Committee
House of Representatives Re: Frequency at which local
Austin, Texas option elections on the legal sale of
alcoholic beverages may be held.
Dear Representative Coody:
You have requested our opinion in reference to the interpretation of
section 251.17 of the Alcoholic Beverage Code. That section provides:
No local option election on a particular issue may be
held in a political subdivision until one year has
elapsed since the last local option election in that
subdivision on that issue.
Your question is whether a local option election on the sale of
alcoholic beverages is prohibited if it would present a ballot proposition
which is identical to a proposition approved less than a year before in the
same subdivision.
Section 251.14 of the Alcoholic Beverage Code sets out eight possible
wordings for a local option ballot. It has been established that every one of
these eight propositions constitutes a separate issue for purposes of section
251.17. Fox v. Burgess, 302 S.W.2d 405 (Tex. 1957). Your question is whether
identical ballot propositions present different issues when one is presented in
a legalizing election and the other is presented in a prohibitory election.
When a local option election is held, the wording will always be “for (or
against) the legal sale” of a particular type of alcoholic beverage. There is
no difference in the wording of the proposition between a legalizing and a
prohibitory election: however, the statutes treat the propositions differently
depending on whether they are legalizing or prohibitory. For example, the
wording of a petition will vary depending on whether it seeks a legalizing or
prohibitory election. Alcoh. Bev. Code, SS 251.04, 251.05, 25107, 251.08.
The effect of the vote will depend on the nature of the election as a
legalizing or prohibitory election. Alcoh. Bev. Code, S 251.51. County
financing of the election may depend on whether the election is to legalize
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Honorable Bill Coody - Page Two (NW-12)
or prohibit. Alcoh. Bev. Code S 251.40. We have examined the language in the various
statutes discussing the issues to be placed on the ballot, and it is consistent both with an
interpretation that a ballot proposition can present only a single issue or with an
interpretation that a ballot proposition will present one of two issues depending on
whether it is a legalizing or prohlbitory election.
The predecessors to sections 251.14 and 251.17 were discussed in Mitchell v.
McCharen, 119 S.W.2d 676 (Tex. Civ. App. -San Antonio 19381, writ dism’d per curiam, 121
S.W.2d 1055 (1938). Unlike the present statute, the law at, that time provided a different
wording on the ballot if the election was a prohibitory one rather than a legalizing one.
The statute listed several different wordings which might be placed on the ballot. Acts
1937, 45th Leg., 1st Called Seas., ch. 13, at 1765-1766. Nevertheless, the court said that
these different propositions constituted only three issues. Mitchell, - at 677. This
conclusion was adopted by the Texas Supreme Court. Fox, w at 407. The three issues
discussed in Mitchell are equivalent to the eight bat propositions permitted under
current law. Under the Mitchell and Fox rationale we believe that the submission of a
ballot proposition constitutes the same issue whether it is submitted in a prohibitory or a
legalizing election. The eight ballot propositions set out in section 251.14 constitute all
the possible issues which may be presented. Thus, the same ballot proposition in a local
option election on the legal sale of alcoholic beverages may not be submitted twice within
a twelve-month period.
SUMMARY
A local option election on the legal sale of alcoholic beverages may
be held only one time per year in a political subdivision on a
particular issue. A ballot proposition presents the same issue as an
earlier proposition if it contains identical language even if one
election is designed as a legalizing election and the other is
designed as a prohibitory election. A
AM
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First-Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General.
Prepared by C. Robert Heath
Assistant Attorney General
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Honorable Bill Coody - Page Three (NW-12)
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
Walter Davis
Reed Lockhoof
William G Reid
Bruce Youngblood
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