Case Information
*1 The Attorne,y General of Texas April 4, 1986 JIM MAlTOX
Attorney General Honorable Ray Kallec Opinion No. a-468
Supreme Court Building chairmsn P. 0. Box 12549 Comittcc on Law EnEorcement Re: Whether a municipality which Austin. TX. 7871% 2548 5121475-2501 Texas House of Repocsentatives is located within two counties Telex 910/874-1387 P. 0. Box 2910 may hold an election ou the issua Telecoplsr 512/475-0266 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 municipality which is located within two counties may hold au election ou tha issue of tba sale of mixed 4824 Alberta Ave., Suite 160 alcoholic beverages. El Paso, TX. 79905-2793 9151533-3484
You advise u,s that the of a Justice precinct located wholly within a comty, recently voted "wet" at a local option election 1001 Texas, Suits 700 on the issue of the. sale of mixed alcoholic beverages within the Houston, TX. 77002-3111 precinct. In thirt election, the voters of a city located sub- 71~22~5888 stantially within 1:he precinct voted overwhelmingly to remain "dry."
The citizms of t‘m city, which is located in two counties, wish to 606 Broadway, Suite 312 hold an additional electiou for a local option determination for only Lubbock. TX. 79401.3479 the city. Texas courts have held that a local option election ou the 8061747-5238 issue of the sale of mixed alcoholic beverages for a city
geographically located in more than one county Is not authorized by 4309 N. Tenth, Sulte S the Texas Cousti:ution without enabling legislation, and uo such ,&Allen, TX. 79501~1885 legislation has been enacted. 5121882.4547
Article XVI, frectioa 20 of the Texas Constitution provides, in part, that 200 Main Plaza. suite 4ca
San Antonio, TX. 78205-2797 512n254191 Sec. 20. (a) The Legislature shall have the
power to enact a Mixed Beverage Law regulating the sale of mixed alcoholic beverages on a local An Equal OpportUnityI option election basis. . . . Attlrmatlve Actlon Employer
Should the Legislature enact any euabliug laws in anti::tpation of this amendmant, uo such law shall be void by reason of its anticipatory nsture.
(b) The Legislature shall enact a law or laws whereby the qualified voters of any county, *2 Eonorable Kay Keller - Page 2
justice's precinct or incorporated town or city, may, by a majorit,y vote of those voting. determine < from time to tim whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized within the prescribed limits. . . .
By authority of article XVI, section 20, the legislature enacted section 251.73 of the Alccholic Beverage Code "[tlo insure that each voter has the maximum poss,Lble control over 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. Coker v. Texas Alcoholic Beverage See d.so. 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] derived fron 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 Article XVI, section 20(b) of the Texas Constitution therein). directs the legislature 1:c~ enact laws providing for local option elections in counties, justice precincts, and incorporated cities. Article XVI. section 20 is ,not self-enacting, but grants the legisla- ture the power and duty. 1.0, enact appropriate laws to implement the constitutional mandate rc:Lating to local option elections. In accordance with that manda~:r:. the legislature enacted the Texas Liquor Control Act, which was codified as the Alcoholic Beverage Code in 1977. and delegated to the commissioners court of eech county the right to order a local option election in an incorporated city. The Alcoholic Beverage Code provides:
On proper pel:ition by the required number of of a county, or of a justice precinct ,r incorporated ci~ or town in the county, the commissioners cc'urt shall order a local option election in the political subdivision to dete&cine whether or not the sale of alcoholic beverages of one or more of the various types and alcoholic contents shall be prohibited or legalized in the county, justice precinct, or incorporated city or town. (Emphasis added).
Sec. 251.01. The court In Ellis v, Hanks, id. at 176, expressed the opinion ---
that it is significant that the authority tom hold such an election is vested solely in the county commissioners court and not in the officials of the incorporated city. The legislature has not enacted law to provide the method or machinery for holding a local option *3 Houorable Kay Keller - Page. 3
election in an incorporatei. city that is geographically located in two separate counties. The c~omeissioners court of ona county is not authorized to order and direct an election in 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); Laupson v. South Park Indgendent School District, 698 S.W.2d 407, 422 (Tax. App. - Beaumont 1985,-no writ).
The same court in 1:111s v. Hanks pointed out that certain provisions, which now ori-codified in the Alcoholic Beverage Code, indicate that the legislature intended to delegate to the commis- sioners court authority to hold elections in cities located wholly within the limits of the county. A county commissioners court is constitutioually restricted to county business within the limits of the county. See Tex. Const. art. V, $18; Burke v. Butcheson, id. at 314. Sectiou251.40 of thla Alcoholic Beverage Code provides thaTthe county shall pay the axpenrc of holding a local option election in the county, justice precinct, or incorporated city in that countI. A commissioners court has nc authority to pay expenses of an election held outside the county. Section 251.34 specifies that the election shall be held at e voting place in each election precinct establlshed- by the governing body of the city for its municipal elections and if the governing body has nat established precincts for its municipal elections, the comnissiorers court shall prescribe the' election precincts for the local q)tion election. Having no power or juris- diction beyond limits of the county , a cowmissioners court has no power to regulate voting precincts in a part of a city that is located in a separate county. See Eillis v. Banks, at 176, 177. --
It has been suggested that there must be a procedure by which cities located in two counties may exercise the constitutional right of self-determination through local option elections ou the issue of alcoholic beverages. A coue~titutioual provision that contemplates and requires legislation, such as article XVI, section 20. is not self- executing. The constitution may direct the legislature to enact laws to carry out a principle ~established by the constitution, but the power and duty to do so belongs exclusively to the legislature and no relief can be granted in the courts for the legislature's failure 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- executing and exists indepkndent of statutes). The court in Ellis v. Banks also stated that it would be completely beyond 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 legislative and not .judicial, must be obtained from the 1egis:stture.
Honorable Ray Keller - Page 4 It also has been suggested that a city has a statutory right to a local option election under section 251.73, since it provides that the result of a duly called election in a city prevails over the result of a duly called electiou iu a justice precinct or county. Section 251.73 relates to a duly called election and. iu the case of a city located in two counties, the Alcoholic Beverage Code does not provide for a duly called election.
SUMMARY Article XVI, :%ectiou 20, of the Texas Coasti- tution is not cielf-euacting. Texas statutes authorize only tcs county comuissioners court to order a local option election in au incorporated city on the ISSUE of the sale of mired alcoholic beverages. The county commissioners court does not have authority or power to order and direct a local option election in a city lying partly in two counties.
JIM MATTOX Attorney General of Texas JACKBIGRTONRR
First Assistant Attorney Gtncral
MARY KELLER
Executive Assistant Attorney Geueral
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee:
Prepared by Nancy Sutton
Assistant Attorney General