Can county commissioners decide the boundaries for a local wet/dry alcohol election in Texas?

Texas AG Opinion DM-0044: Commissioners Court Authority Over Wet/Dry Election Boundaries

Plain-English summary

The chairman of the Texas House Committee on Public Safety asked three questions about local option (wet/dry) liquor elections, which are held under article XVI, section 20 of the Texas Constitution and chapter 251 of the Alcoholic Beverage Code.

First, do county commissioners have legal authority to set the boundaries for a wet/dry election? The Attorney General concluded that, as a rule, no: the area for an election is fixed by the petition, and the constitution and statutes limit local option elections to whole counties, justice of the peace precincts, and incorporated cities and towns, which ordinarily have set boundaries. The one exception is section 251.80, which applies when a justice precinct's boundaries have changed since its local option status was set. Then the commissioners court must define the boundaries of the original precinct so the election can be held in the same territory. The opinion read that authority narrowly: it codifies the holding of Coker v. Texas Alcoholic Beverage Comm'n for cases where the old boundary cannot be determined from records, the court's determination cannot be arbitrary and must conform as nearly as possible to the former precinct, and where public records clearly show the old boundary the court has no discretion to draw it differently.

Second, if an area is already dry by municipal ordinance, can the commissioners court require its residents to participate in a wet/dry election? The opinion answered that an election must be held in the entire political subdivision named in the petition. Citing Patton v. Texas Liquor Control Bd., it explained there is no authority to hold a local option election in only part of a justice precinct or to disenfranchise voters in part of a city. Whether a municipality has separately prohibited alcohol sales in some area under its own regulatory powers (sections 109.31 and 109.32) is irrelevant to whether that area is included in a local option election.

Third, which agency enforces changes from wet/dry elections? The Alcoholic Beverage Commission regulates the alcoholic beverage industry generally, and state and local police enforce state law in their jurisdictions. The opinion also listed the specific certifying duties: the commissioners court canvasses returns and declares the result, the county clerk certifies the result to the Commission and the secretary of state and certifies a location's wet or dry status when a license application is made.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The local option provisions of the Alcoholic Beverage Code have been amended since 1991, including renumbering and substantive changes to the petition and election rules. Verify current law before relying on any specific section number, rule, or deadline mentioned here.

Common questions

Can a commissioners court draw its own boundary for a wet/dry election?
Only in the narrow situation in section 251.80, where a justice precinct's boundaries have changed since its local option status was established and the original precinct line must be reconstructed. The opinion said the court must conform as nearly as possible to the former precinct and has no discretion to redraw the line where public records clearly show the old boundary.

What areas can hold a local option liquor election?
Under the constitution and chapter 251, only a whole county, a justice of the peace precinct, or an incorporated city or town. The area is determined by the petition that triggers the election.

Can part of a city be left out of a wet/dry election because it is already dry?
No. The opinion concluded the election must cover the entire political subdivision named in the petition, and that the Alcoholic Beverage Code does not authorize disenfranchising voters in a portion of a city. A separate municipal ordinance prohibiting sales in some area does not change that.

Who certifies and enforces the result of a wet/dry election?
The Alcoholic Beverage Commission regulates the industry generally, and police agencies enforce state law. For a specific election, the commissioners court canvasses the returns and declares the result, and the county clerk certifies the result to the Commission and the secretary of state and later certifies whether a location is wet or dry when a license application is filed.

Background and statutory framework

Local option liquor elections are authorized by article XVI, section 20 of the Texas Constitution and codified in chapter 251 of the Alcoholic Beverage Code. An election may be called only on a valid petition: if 10 or more qualified voters of a county, justice precinct, or incorporated city or town file a written application, the county clerk issues a petition to be circulated in that political subdivision (section 251.03), and the commissioners court must call the election when it receives a valid petition (sections 251.01, 251.11). The permitted subdivisions are limited by the constitution and by sections 251.01 and 251.02.

Section 251.80(a) provides that once local option status is legally put into effect by a vote in a justice precinct, that status remains in effect until changed by a vote in the same territory that comprised the precinct when the status was established; if the precinct's boundaries have since changed, the commissioners court must, for purposes of a local option election, define the boundaries of the original precinct. By its terms section 251.80 applies only to justice precincts; changes in incorporated cities and towns are governed by section 251.72. The opinion relied on Coker v. Texas Alcoholic Beverage Comm'n, where the court of appeals held that a commissioners court could draw a line approximating original boundaries as an administrative determination incidental to its power to order an election, controlling unless clearly erroneous or arbitrary. On the second question it relied on Patton v. Texas Liquor Control Bd., which held void an election conducted in only part of a justice precinct. On enforcement, the opinion cited the Commission's general authority (section 5.31), the canvassing and declaration duties of the commissioners court (section 251.51), posting of a prohibition result (section 251.54), certification to the Commission and secretary of state by the county clerk (section 251.53), and the clerk's wet/dry certification on license applications (section 11.37). It referenced prior Attorney General Opinions JM-1177 (1990) and JM-468 (1986).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 20 (local option elections)
• Alcoholic Beverage Code chapter 251, including §§ 251.01, 251.02, 251.03, 251.11, 251.51, 251.53, 251.54, 251.72, 251.80
• Alcoholic Beverage Code §§ 109.31, 109.32 (municipal regulation of sales)
• Alcoholic Beverage Code § 11.37 (county clerk wet/dry certification on license applications)
• Alcoholic Beverage Code § 5.31 (Commission's general regulatory authority)

Cases:

• Coker v. Texas Alcoholic Beverage Comm'n, 524 S.W.2d 570 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.)
• Patton v. Texas Liquor Control Bd., 293 S.W.2d 99 (Tex. Civ. App.-Austin 1956, writ ref'd n.r.e.)

Prior Attorney General opinions referenced: JM-1177 (1990), JM-468 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0044
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0044.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 19, 1991

Honorable Bill G. Carter
Chairman
Committee on Public Safety
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-44

Re: Whether county commissioners have the authority to set boundaries for wet/dry elections and other related questions (RQ-89)

Dear Representative Carter:

You ask three questions regarding local option liquor elections. Such elections are held pursuant to article XVI, section 20, of the Texas Constitution and chapter 251 of the Alcoholic Beverage Code. We will consider each question in turn:

1. Do county commissioners have the legal authority to set boundaries for wet/dry elections?

Article XVI, section 20, of the Texas Constitution directs the legislature to adopt statutes to provide for local option elections to legalize or prohibit the sale of alcoholic beverages. This constitutional provision is codified in chapter 251 of the Alcoholic Beverage Code. Local option liquor elections may only be called when the commissioners court receives a valid petition. Alco. Bev. Code §§ 251.01, 251.11. The commissioners court must call an election when it receives such a petition. Id. The county clerk must provide a petition to qualified voters under the following circumstances:

If 10 or more qualified voters of any county, justice precinct, or incorporated city or town file a written application, the county clerk of the county shall issue to the applicants a petition to be circulated among the qualified voters of that political subdivision.

Alco. Bev. Code § 251.03 (emphasis added).

The political subdivision for which the election must be called is thus determined by the petition. The political subdivisions for which elections may be called are limited by both the constitution and by statute to counties, justice of the peace precincts, and incorporated cities and towns. Tex. Const. art. XVI, § 20; Alco. Bev. Code §§ 251.01, 251.02; see also Attorney General Opinions JM-1177 (1990); JM-468 (1986) and authorities cited therein. These political subdivisions will ordinarily have fixed boundaries that will determine the area in which the election is held.

The only instance in which a commissioners court is authorized by statute to exercise discretion in setting the boundaries for a local option liquor election is described in section 251.80 of the Alcoholic Beverage Code. Subsection (a) of that section states:

Whenever a local option status is once legally put into effect as the result of the vote in a justice precinct, such status shall remain in effect until the status is changed as the result of a vote in the same territory that comprised the precinct when such status was established. If the boundaries of the justice precinct have changed since such status was established, the commissioners court shall, for purposes of a local option election, define the boundaries of the original precinct. A local option election may be held within the territory defined by the commissioners court as constituting such original precinct.

(Emphasis added.)

This 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.[1]

In Coker v. Texas Alcoholic Beverage Comm'n, 524 S.W.2d 570 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.), the court of appeals considered a situation in which the exact boundaries of a former justice precinct could not be determined. The court held, in part:

[T]he commissioners' court has responsibility to call the election, and we see no reason why it could not protect all interested persons by drawing a line approximating the original boundaries. Its 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.

524 S.W.2d at 579.

We believe the intent of the legislature in enacting the emphasized language was to permit the commissioners court to resolve situations in which, due to lost or ambiguous records or other reasons, it is not possible to establish definitively the boundary of a former justice precinct. In effect, the language codifies the holding of Coker with respect to situations where the boundary of a former justice precinct cannot be determined. Accordingly, we believe that discretion exercised under section 251.80 may not be arbitrary. A boundary set by the commissioners court under section 251.80 must as nearly as possible conform to the boundary of the former precinct for which the petition requires the election be held. Where the boundaries of the former justice of the peace precinct are clearly defined by public records, the county commissioners have no discretion to define the boundaries differently for purposes of a local option election.

2. If an area is currently designated dry by municipal ordinance, can a commissioners court require residents in this area to participate in a wet/dry election?

As noted above, the political subdivision in which a local option liquor election is to be held is determined by the petition that both authorizes and requires the commissioners court to call the election. In Patton v. Texas Liquor Control Bd., 293 S.W.2d 99 (Tex. Civ. App.-Austin 1956, writ ref'd n.r.e.), the court considered a situation in which a local option election had been held in only that part of a justice precinct lying outside the corporate limits of a city. The court held that there was no constitutional or statutory authority for holding a local option election in only part of a justice precinct:

We believe that since the Constitution and statutes limit local option elections to counties, justice's precincts and incorporated cities or towns, the purported election in only a portion of Justice Precinct No. 3 is void, and that the District Court erred in holding that it was effective to make the sale of liquors within such portion of the precinct illegal.

. . . .

We must also bear in mind that if five voting boxes can be thus converted into a local option district despite the Constitution then there is no logical reason why a smaller area, one lot for instance, could not be so created and, perhaps of greater importance, if a non-constitutional area can be made dry by such procedure then it could by the same token be made wet by such procedure.

293 S.W.2d at 101-02. (emphasis in original).

Accordingly, only those political subdivisions enumerated in the constitution and statutes may exercise local option through the electoral process prescribed by chapter 251 of the Alcoholic Beverage Code, and such elections must be held in the entire political subdivision for which the election is called. No provision of the Alcoholic Beverage Code authorizes the disfranchisement of voters in any portion of a city that is within the political subdivision for which the election is to be held. Whether a municipality has prohibited the sale of an alcoholic beverage in an area of that municipality is irrelevant as to the inclusion of that area in a local option election. While the Alcoholic Beverage Code provides for some municipal regulation of the sale of alcoholic beverages, Alco. Bev. Code §§ 109.31, 109.32, these provisions are distinct from the exercise of local option by election and do not serve to change the local option status adopted by a political subdivision pursuant to chapter 251, nor to inhibit the adoption of new local option status by the voters. Id. §§ 251.51, 251.72.

3. What agency or agencies are legally responsible for enforcing changes in wet/dry elections?

We take your question to ask what agency is responsible for enforcing changes in local option status made pursuant to chapter 251 of the Alcoholic Beverage Code. The Alcoholic Beverage Commission is charged generally with regulating every phase of the alcoholic beverage industry in Texas. Alco. Bev. Code § 5.31. Of course, state and local police agencies may enforce state laws within their respective jurisdictions. However, certain other officials are given specific duties in certifying the result of a local option election.

Section 251.51 directs the commissioners court to canvass the returns of a local option election and to declare the result. Upon a majority vote in favor of legalization, the types of alcoholic beverages legalized may be sold once the commissioners court enters an order declaring the result. Id. A vote prohibiting sale of alcoholic beverages is effective 30 days after the commissioners court order is entered. Id. If the result prohibits the sale of any alcoholic beverages, it must be posted. Id. § 251.54. Regardless of outcome, the result is certified to the Alcoholic Beverage Commission and the secretary of state by the county clerk. Id. § 251.53. When an application is made for a license or permit to sell alcohol, the county clerk must certify whether a particular location is "wet" or "dry." Id. § 11.37.[2]

SUMMARY

A commissioners court is authorized to set the boundaries for a local option liquor election only in the circumstances prescribed in section 251.80 of the Alcoholic Beverage Code. A boundary set by the commissioners court under this provision must as nearly as possible conform to the boundary of the former justice of the peace precinct for which the petition requires an election be held. Where the boundaries of the former justice of the peace precinct are clearly defined by public records, the county commissioners have no discretion to define the boundaries differently for purposes of a local option election.

Only those political subdivisions enumerated in the constitution and statutes may exercise local option through the electoral process prescribed by chapter 251 of the Alcoholic Beverage Code, and such elections must be held in the entire political subdivision for which the election is called. No provision of the Alcoholic Beverage Code authorizes the disfranchisement of voters in a portion of a city that is within the political subdivision for which the election is to be held.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General

[1] By its terms section 251.80 of the Alcoholic Beverage Code applies only to justice precincts. Changes of local option status in incorporated cities and towns remain governed by section 251.72.

[2] This procedure of certification as to wet or dry status is summarized by the court in Sells v. [name garbled in scan], 769 S.W.2d 641, 643 (Tex. App.-Austin 1989, no writ).