Do petitioners have to pay a deposit to call a local option alcohol election in a Texas city that sits entirely within one county?

TX AG Opinion GA-0783: Is a deposit required to call a local option alcohol election in a city within one county?

Plain-English summary

The Secretary of State asked the Attorney General to clear up how two Election Code sections fit together for local option liquor elections. A local option election is the vote by which a county, justice precinct, or city decides whether to legalize or prohibit the sale of alcoholic beverages. The question concerned who pays for the election and whether the people circulating the petition have to put up a deposit. Section 501.107 says the county pays the expense of holding a local option election, with exceptions, including subsection (1): if the election is held only within the corporate limits of a city located wholly within the county, the county "may require the municipality to reimburse the county" for all or part of the cost. Section 501.108 says that if the county is "not required to pay the expense" of the election, the county clerk must require the petition applicants to make a nonrefundable deposit before issuing the petition. The narrow issue: when an election will be held only inside a city that sits entirely within a county, and no such election has been held there in a year, is the county "required to pay," so that no deposit is due?

The Attorney General answered that no deposit is required, because the county is required to pay. The key was the word "reimburse." Since chapter 501 does not define it, the opinion used dictionaries, which define "reimburse" as to pay back or repay money already spent. That meaning shows the county must spend its own money first to hold the city's election, and only afterward may it seek repayment from the city. Section 501.107(1) uses "may," which grants discretion, so the county can require full reimbursement, partial reimbursement, or none at all. None of that changes the fact that the county bears the initial obligation to pay. So under section 501.107, the county is required to pay the expense of the first legalize election and the first prohibit election in a one-year period in a city wholly within the county.

The opinion found further support by contrasting section 501.109, which deals with a city located in more than one county. That section expressly says the municipality conducts the election and "shall pay the expense of the election." When the Legislature wanted to put the cost squarely on the city, it knew how to say so. For a city wholly within a single county, it instead placed the initial cost on the county subject to optional reimbursement. Because the county is "required to pay the expense of a local option election under Section 501.107" in this scenario, the deposit trigger in section 501.108(a) is not met. The petition applicants do not have to pay a deposit, and the county clerk is not required to collect one.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Election Code chapter 501, including sections 501.107, 501.108, and 501.109, may have been amended since 2010. Confirm the current statutes before relying on anything below.

Who this opinion affected (as of 2010)

Petition applicants for a city liquor election: The opinion told them that, for the first legalize and first prohibit election in a year in a city wholly within a county, they did not owe a deposit before the clerk issued the petition.

County clerks: The opinion told them not to require or collect a deposit in that scenario, since the county was required to pay the expense under section 501.107.

Counties and cities: The opinion confirmed the county pays the election cost first but may, at its discretion, seek full, partial, or no reimbursement from a city located wholly within the county, while a city spanning more than one county pays its own election cost under section 501.109.

Common questions

If an alcohol election is only inside my city, who pays for it?
The county pays first, for the first legalize and first prohibit election in a one-year period, when the city is located wholly within the county. The county may then ask the city to reimburse some or all of the cost.

Do petitioners owe a deposit in that situation?
No. Because the county is required to pay the expense under section 501.107, the deposit trigger in section 501.108(a) is not met, so no deposit is required and the clerk is not to collect one.

What does "reimburse" change about who pays?
"Reimburse" means repay money already spent, so it confirms the county spends first and only later may recover from the city; it does not shift the initial payment duty to the city.

Is it different for a city in more than one county?
Yes. Section 501.109 expressly makes a city that spans more than one county conduct and pay for its own local option election.

Background and statutory framework

A local option election lets a county, justice precinct, or incorporated city decide whether to prohibit or legalize the sale of alcoholic beverages (Tex. Elec. Code Ann. § 501.021 (Vernon 2010); Tex. Const. art. XVI, § 20(b); see Smith v. Breedlove, 399 S.W.2d 404, 405 (Tex. Civ. App.—Eastland 1966, no writ); Patton v. Tex. Liquor Control Bd., 293 S.W.2d 99, 101 (Tex. Civ. App.—Austin 1956, writ ref'd n.r.e.)). Section 501.107 makes the county pay the election expense, except that for an election only within a city wholly in the county, the county "may require the municipality to reimburse" all or part of the cost, and county payment is limited to one legalize and one prohibit election per political subdivision in a one-year period (Tex. Elec. Code Ann. § 501.107, .107(1)). Section 501.108 requires a nonrefundable deposit from petition applicants if the county "is not required to pay the expense" (id. § 501.108(a)-(e)).

Reading section 501.107(1) by the rules of grammar and common usage (Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)), and using dictionaries for the undefined term "reimburse" (Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 196 n.19 (Tex. 2004); Bd. of Ins. Comm'rs v. Duncan, 174 S.W.2d 326, 328 (Tex. Civ. App.—Amarillo 1943, writ ref'd)), the opinion concluded the county must spend first and may recover later, with "may" granting discretion (Tex. Gov't Code Ann. § 311.016(1)). The opinion contrasted section 501.109, which expressly places the cost on a city located in more than one county and provides the municipality "shall pay the expense" (Tex. Elec. Code Ann. § 501.109(a), (c)), reasoning from the difference in language (Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 320 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). Because the county is required to pay the expense under section 501.107 in this scenario, no deposit is required under section 501.108(a) and the clerk need not collect one.

Citations

Statutes:

• Tex. Elec. Code Ann. §§ 501.021, 501.107, 501.107(1), 501.108, 501.108(a), (b)-(c), (d)-(e), 501.109(a), (c) (Vernon 2010)
• Tex. Gov't Code Ann. §§ 311.011(a), 311.016(1) (Vernon 2005)
• Tex. Civ. Prac. & Rem. Code Ann. ch. 37, § 37.009 (Vernon 2008)
• Tex. Const. art. XVI, § 20(b)

Cases:

• Smith v. Breedlove, 399 S.W.2d 404 (Tex. Civ. App.—Eastland 1966, no writ)
• Patton v. Tex. Liquor Control Bd., 293 S.W.2d 99 (Tex. Civ. App.—Austin 1956, writ ref'd n.r.e.)
• Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004)
• Bd. of Ins. Comm'rs v. Duncan, 174 S.W.2d 326 (Tex. Civ. App.—Amarillo 1943, writ ref'd)
• Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998)
• Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0783
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0783.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 24, 2010

The Honorable Hope Andrade
Secretary of State
Post Office Box 12060
Austin, Texas 78711-2060

Opinion No. GA-0783

Re: Whether a deposit is required for certain local option liquor elections (RQ-0848-GA)

Dear Secretary Andrade:

You seek clarification of Election Code provisions on the payment of a deposit in connection with certain local option liquor elections. Election Code section 501.021, relating to a petition for a local option election, provides as follows:

On proper petition by the required number of voters of a county, justice precinct, or municipality in the county, the commissioners court shall order a local option election in the political subdivision to determine whether the sale of alcoholic beverages of one or more of the various types and alcoholic contents shall be prohibited or legalized in the political subdivision.

TEX. ELEC. CODE ANN. § 501.021 (Vernon 2010). [Footnote 1: Request Letter at 1, and Attached Letter from Ann McGeehan, Director of Elections, Office of Secretary of State, to Craig T. Enoch, Winstead P.C. (Sept. 11, 2009) [hereinafter McGeehan Letter] (available at http://www.texasattorneygeneral.gov).] [Footnote 2: See TEX. CONST. art. XVI, § 20(b) (providing that "[t]he Legislature shall enact a law or laws whereby the qualified voters of any county, justice's precinct or incorporated town or city, may, by a majority vote of those voting" determine whether the sale of intoxicating liquors will be prohibited or legalized).]

You seek clarification of Election Code section 501.107, which governs payment of the expenses of a local option election, and section 501.108, concerning the deposit that applicants may be required to pay before the county clerk is authorized to issue a petition. Request Letter at 1.

Section 501.107 provides as follows:

[t]he county shall pay the expense of holding a local option election authorized by this chapter in the county, justice precinct, or municipality in that county except that:

(1) if an election is to be held only within the corporate limits of a municipality located wholly within the county, the county may require the municipality to reimburse the county for all or part of the expenses of holding the local option election;

(2) county payment of the expense of an election to legalize the sale of alcoholic beverages is limited to the holding of one election in a political subdivision during a one-year period; and

(3) county payment of the expense of an election to prohibit the sale of alcoholic beverages is limited to the holding of one election in a political subdivision during a one-year period.

TEX. ELEC. CODE ANN. § 501.107 (Vernon 2010) (footnote added). [Footnote 3: "[A] local option election may be held only in a county, a justice precinct or an incorporated town or city, and . . . no other political subdivision or area may hold such an election." Smith v. Breedlove, 399 S.W.2d 404, 405 (Tex. Civ. App.—Eastland 1966, no writ); see Patton v. Tex. Liquor Control Bd., 293 S.W.2d 99, 101 (Tex. Civ. App.—Austin 1956, writ ref'd n.r.e.).]

Section 501.108 provides that "[i]f a county is not required to pay the expense of a local option election under Section 501.107, the county clerk shall require the applicants for a petition for a local option election to make a deposit before the issuance of the petition." Id. § 501.108(a). The non-refundable deposit, calculated in accordance with subsection (b), "shall be deposited in the county's general fund." Id. § 501.108(b)-(c). See also id. § 501.108(c) (stating that "[a] refund may not be made to the applicants regardless of whether the petition is returned to the county clerk or the election is ordered"). If a deposit is required, subsection 501.108(d) prohibits the county clerk from issuing the petition without the deposit, and a violation of subsection (d) is a misdemeanor punishable by a fine, confinement in the county jail for not more than 30 days, or both. Id. § 501.108(d)-(e).

You ask whether section 501.108 requires the petition applicants to pay a deposit when seeking a petition for a local option election to be held only within the corporate boundaries of a municipality located wholly in the county, if no such election has been held in that municipality for a year. Request Letter at 1. You are specifically concerned about the following language of section 501.107(1): "the county may require the municipality to reimburse the county for all or part of the expenses of holding the local option election," if the "election is to be held only within the corporate limits of a municipality located wholly within the county." TEX. ELEC. CODE ANN. § 501.107(1) (Vernon 2010) (emphasis added). Thus, we must determine whether the county is or "is not required to pay the expense of a local option election," under the circumstance where it may seek reimbursement from a city pursuant to section 501.107(1). Id. § 501.108(a). [Footnote 4: The McGeehan letter attached to the request letter describes competing readings of sections 501.107 and 501.108. Request Letter at 1, McGeehan Letter at 1-2. The letter suggests that the county does not have to pay for elections in a city wholly within a county because it can seek reimbursement from the city, but it also observes that the word "reimburse" in section 501.107(1) indicates that the county must initially pay the costs of the election and may later decide to seek repayment. See McGeehan Letter at 1-2.]

In addressing your question, we read the language of section 501.107(1) in context and construe its terms according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005). "Reimburse" is not defined by chapter 501 of the Election Code or by a judicial decision. Texas courts rely on dictionaries to determine the meaning of terms not defined by statute. See Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 196 n.19 (Tex. 2004); Bd. of Ins. Comm'rs v. Duncan, 174 S.W.2d 326, 328 (Tex. Civ. App.—Amarillo 1943, writ ref'd). "Reimburse" has been defined as "[t]o pay back or compensate (another party) for money spent or losses incurred." THE AMERICAN HERITAGE COLLEGE DICTIONARY 1172 (4th ed. 2002); see also THE NEW OXFORD AMERICAN DICTIONARY 1436 (2001) (defining reimburse as to "repay (a person who has spent or lost money); . . . repay (a sum of money that has been spent or lost)"); XIII OXFORD ENGLISH DICTIONARY 534 (2d ed. 1989) (defining "reimburse" as "[t]o repay or make up to one (a sum expended)"). The use of the term "reimburse" in section 501.107(1) indicates that while the county must initially spend county money for the city local option liquor election it may, pursuant to section 501.107(1), obtain from the city repayment for all or part of the expenses of holding the election. See TEX. ELEC. CODE ANN. § 501.107(1) (Vernon 2010). Section 501.107(1) authorizes but does not compel the county to require reimbursement from the municipality. See TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005) (stating that "'[m]ay' creates discretionary authority or grants permission or a power"). The county in its discretion may require full reimbursement, partial reimbursement, or no reimbursement. Thus, section 501.107 requires the county to pay the expense of a local option election to legalize and a local option election to prohibit the sale of alcoholic beverages in a political subdivision if there has been no such election in that political subdivision within a year. See Tex. Att'y Gen. Op. Nos. H-145 (1973) at 3, M-724 (1970) at 3-4 (construing predecessor of section 501.107). Accordingly, section 501.107 requires the county to initially "pay the expense of holding a local option election" in a municipality located wholly within the county, if no such election has been held in that municipality for a year. TEX. ELEC. CODE ANN. § 501.107 (Vernon 2010).

We find additional support for our conclusion in section 501.109 of the Election Code. In contrast to section 501.107(1), section 501.109 explicitly places the cost of the election on the city. See id. § 501.109; see also Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (determining that the attorney fee provision in the declaratory judgment act is permissive by contrasting its language with the language of other statutes on the award of attorney fees), Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 320 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing the discussion of contrasting statutes in Bocquet v. Herring). Section 501.109 applies only to a local option election in a municipality that is located in more than one county. See TEX. ELEC. CODE ANN. § 501.109(a) (Vernon 2010). It provides that the municipality shall conduct the election instead of the county and "[t]he municipality shall pay the expense of the election." Id. § 501.109(c). In section 501.107(1), the Legislature chose to place on the county the initial responsibility for paying the election costs in a city located wholly within the county. See id. § 501.107(1). [Footnote 5: See TEX. CIV. PRAC. & REM. CODE ANN. ch. 37 (Vernon 2008) (Declaratory Judgment Act); id. § 37.009 (authorizing attorney fees).]

Accordingly, the county must initially pay the expense of holding a local option election in a municipality located wholly within the county, if no such election has been held in that municipality for a year. Under these circumstances, the county is "required to pay the expense of a local option election under Section 501.107," and the applicants for a petition are not required to pay a deposit pursuant to section 501.108(a), nor is the clerk required to collect a deposit. Id. § 501.108.

SUMMARY

The county in which a local option election is held is required to pay the expense of the first election during a one-year period to legalize the sale of alcoholic beverages and the first election in a one-year period to prohibit the sale of alcoholic beverages in a municipality wholly within the county, but it may require reimbursement in whole or part from the municipality for the election expenses. In these circumstances, where the county is required to pay the expense of a local option election in a municipality wholly within the county subject to reimbursement, the county clerk is not required to collect a deposit from the persons applying for a petition to call the local option election.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee