Untitled Texas Attorney General Opinion

The Attorne,y General of Texas JIM MAlTOX April 4, 1986 Attorney General Supreme Court Building HonorableRay Kallec OpinionNo. a-468 P. 0. Box 12549 chairmsn Austin. TX. 7871% 2548 Comittcc on Law EnEorcement Re: Whether a municipalitywhich 5121475-2501 Texas House of Repocsentatives is located within two counties Telex 910/874-1387 Telecoplsr 512/475-0266 P. 0. Box 2910 may hold an electionou the issua Austin,Texas 787869 of the sale of mixed alcoholic beverages 714 Jackson, Suite 7W Dallas, TX. ‘75202-4509 Dear Representative Keller: 2141742-8944 You ask whether a municipalitywhich is located within two 4824 Alberta Ave., Suite 160 counties may hold au election ou tha issue of tba sale of mixed El Paso, TX. 79905-2793 alcoholicbeverages. 9151533-3484 You advise u,s that the voters of a Justice precinct located 1001 Texas, Suits 700 wholly within a comty, recentlyvoted "wet" at a local option election Houston, TX. 77002-3111 on the issue of the.sale of mixed alcoholic beverages within the 71~22~5888 precinct. In thirtelection, the voters of a city located sub- stantiallywithin 1:heprecinctvoted overwhelminglyto remain "dry." The citizms of t‘m city, which is located in two counties,wish to 606 Broadway, Suite 312 Lubbock. TX. 79401.3479 hold an additionalelectioufor a local option determinationfor only 8061747-5238 the city. Texas courts have held that a local option electionou the issue of the sale of mixed alcoholic beverages for a city geographicallylocated in more than one county Is not authorizedby 4309 N. Tenth, Sulte S the Texas Cousti:utionwithout enabling legislation,and uo such ,&Allen, TX. 79501~1885 5121882.4547 legislationhas been enacted. Article XVI, frectioa20 of the Texas Constitutionprovides, in 200 Main Plaza. suite 4ca part, that San Antonio, TX. 78205-2797 512n254191 Sec. 20. (a) The Legislatureshall have the power to enact a Mixed BeverageLaw regulatingthe An Equal OpportUnityI sale of mixed alcoholic beverages on a local Attlrmatlve Actlon Employer option electionbasis. . . . Should the Legislatureenact any euabliug laws in anti::tpation of this amendmant,uo such law shall be void by reason of its anticipatory nsture. (b) The Legislatureshall enact a law or laws whereby the qualified voters of any county, p. 2143 EonorableKay Keller - Page 2 (JM-468) justice'sprecinct or incorporatedtown or city, < may, by a majorit,y vote of those voting. determine from time to tim whether the sale of intoxicating liquors for beverage purposesshall be prohibited or legalizedwithin the prescribedlimits. . . . By authorityof articleXVI, section20, the legislatureenacted section 251.73 of the AlccholicBeverage Code "[tlo insure that each voter has the maximum poss,Lble controlover the status of the sale of alcoholic beverages in the area where he resides.. . ." Section 251.73 provides that the result of a duly called election for an incorporated city prevails against the result of a duly called election in a justice precinct or county in which the incorporated city is located. See d.so. Coker v. Texas Alcoholic Beverage Commission,524 S.W.2d 57C8,574 (Tex. Civ. App. - Dallas 1975. writ ref'd n.r.e.). "The right to hold go.election is not inherent in the people but . . . [is] derivedfron the law." Ellis v. Banks, 478 S.W.2d 172, 176 (Tex. Civ. App. - Dallrrr; 1972,writ ref'd n.r.e.1 (and cases cited therein). Article XVI, section 20(b) of the Texas Constitution directs the legislature1:c~enact laws providing for local option elections in counties, justice precincts, and incorporatedcities. ArticleXVI. section20 is ,notself-enacting, but grants the legisla- ture the power and duty.1.0, enact appropriatelaws to implement the constitutionalmandate rc:Latingto local option elections. In accordancewith that manda~:r:.the legislatureenactedthe Texas Liquor Control Act, which was codified as the Alcoholic Beverage Code in 1977. and delegated to the commissionerscourt of eech county the right to order a local option electionin an incorporatedcity. The AlcoholicBeverageCode provides: On proper pel:itionby the required number of votersof a county, or of a justice precinct,r incorporatedci~ or town in the county, the commissionerscc'urtshall order a local option electionin the politicalsubdivisionto dete&cine whether or not the sale of alcoholicbeveragesof one or more of the various types and alcoholic contents shall be prohibitedor legalizedin the county, justice precinct,or incorporatedcity or town. (Emphasisadded). Sec. 251.01. The court In Ellis v,--- Hanks, id. at 176, expressedthe opinion that it is significantthat the authoritytomhold such an electionis vested solely in the county commissionerscourt and not in the officialsof the incorporatedcity. The legislaturehas not enacted law to provide the method or machinery for holding a local option p. 2144 HouorableKay Keller - Page.3 (JM-468) electionin an incorporatei. city that is geographicallylocatedin two separate counties. The c~omeissioners court of ona county is not authorizedto order and direct an electionin a city lying partly in two counties. See Burke v.FLutcheson,537 S.W.2d 312, 314 (Tex. Civ. APP. - Eastland-76, writ ref'd n.r.e.). See also Gregg6 v. Faulk, 343 S.W.2d 543, 545 (Tar. Civ. App. - Fort Worth 1961. no writ); Laupsonv. South Park Indgendent SchoolDistrict,698 S.W.2d407, 422 (Tax.App. - Beaumont1985,-nowrit). The same court in 1:111sv. Hanks pointed out that certain provisions,which now ori-codified in the Alcoholic Beverage Code, indicate that the legislatureintended to delegate to the commis- sioners court authority to hold elections in cities located wholly within the limits of the county. A county commissionerscourt is constitutioually restrictedto county business within the limits of the county. See Tex. Const. art. V, $18; Burke v. Butcheson,id. at 314. Sectiou251.40 of thlaAlcoholicBeverageCode providesthaTthe county shall pay the axpenrcof holdinga local optionelectionin the county, justice precinct, or incorporatedcity in that countI. A commissionerscourt has nc authorityto pay expenses of an election held outside the county. Section 251.34 specifiesthat the election shall be held at e voting place in each electionprecinctestabllshed- by the governingbody of the city for its municipalelectionsand if the governingbody has nat establishedprecincts for its municipal elections, the comnissiorerscourt shall prescribe the' election precinctsfor the local q)tion election. Having no power or juris- dictionbeyond the limits of the county, a cowmissionerscourt has no power to regulatevoting precinctsin a part of a city that is located in a separatecounty. -- See Eillis v. Banks, at 176, 177. It has been suggestedthat there must be a procedureby which cities located in two countiesmay exercise the constitutionalright of self-determination through local option electionsou the issue of alcoholicbeverages. A coue~titutioual provisionthat contemplatesand requires legislation,such as article XVI, section 20. is not self- executing. The constitutionmay direct the legislatureto enact laws to carry out a principle ~established by the constitution,but the power and duty to do so belongs exclusivelyto the legislatureand no relief can be granted in the courts for the legislature'sfailure to act. See City of Corpus Christ1 v. City of Pleasanton,276 S.W.2d 798, 8r(Tex. 1955); Lhtrran v. Gabler, 215 S.W.2d 155, 162 (Tex. 1948). Cf. Aston v. Ai~~xr, 91 S.W.2d 852, 854 (Tex. Civ. App. - Dallas 1936. uo writ)(~&ision of constitution that is self- executingand exists indepkndentof statutes). The court in Ellis v. Banks also stated that it would be completelybeyond the power of the COUTt to attempt to prwida the method and machinery for holding a local option election in a city located in two counties and that relief from such a situation,being legislativeand not .judicial,must be obtainedfrom the 1egis:stture. p. 2145 HonorableRay Keller - Page 4 (JM-468) It also has been suggestedthat a city has a statutoryright to a local option electionunder section251.73,since it providesthat the result of a duly calledelectionin a city prevailsover the result of a duly called electiou iu a justice precinct or county. Section 251.73 relates to a duly called electionand. iu the case of a city locatedin two counties,the AlcoholicBeverageCode does not provide for a duly called election. SUMMARY Article XVI, :%ectiou20, of the Texas Coasti- tution is not cielf-euacting.Texas statutes authorizeonly tcs county comuissionerscourt to order a local option election in au incorporated city on the ISSUE of the sale of mired alcoholic beverages. The county commissionerscourt does not have authorityor power to order and direct a local option election in a city lying partly in two counties. JIM MATTOX AttorneyGeneralof Texas JACKBIGRTONRR First AssistantAttorneyGtncral MARY KELLER ExecutiveAssistantAttorneyGeueral ROBERT GRAY SpecialAssistantAttorneyGeneral RICK GILPIN Chairman,OpinionCommittee: Preparedby Nancy Sutton AssistantAttorneyGeneral p. 2146