PROBLEMS IN DEFINING AND APPLYING
"PRESCRIBED LIMITS" OF ELECTION
JURISDICTIONS UNDER THE TEXAS LIQUOR
cornRoL ACT
ELAINE BO ZE
The Texas Constitution, Article 16, section 20, authorizes the
legislature to regulate the manui'acture, sale, possession and transportation of intoxicating liquors and charges it with the duty of
enacting laws whereby the qualified voters of any county, justice's
precinct or incorporated town or city may determine whether the sale
of liquor shall be prohibited or legalized "within the prescribed
limi ts" and declares that all such political subdivisions
whi~h
had
been voted dry, at the time this section of the Constitution became
effective, should remain dry unless and until changed by an election
held for that purpose.
In
Article 666-32, Vernon's Texas Penal Code, commonly known as
the Texas Liquor Control Act, the legislature has provided for elections to determine whether or not the sale of alcoholic beverages
shall be prohibited or legalized "within the prescribed limits" of
any county, justice preCinct, or incorporated city or town.
These
elections are called by the Commissioners Court of any county in the .
state, upon the petition signatures of at least twenty-five percent
of the qualified voters of any such political subdiVision, the number
of qualified voters being determined by the total vote for governor
at t he last preceding general election at which presidential electors
were elected.
This paper concerns the questions of what constitutes
the "prescribed limits" of the enumerated political subdivisions, and
which subdivisions will be controlling in cases of overlapping jurisdictional boundaries and conflicting election results.
2
I.
The most recent case dealing with the first issue is Ellis v.
~,
478 S.W.2d 172 (Tex.Civ.App.--Dallas 1972, writ ref. n.r.e.).
Hanks and other citizens of the City of Grand Prairie, Texas, brought
action against Ellis in his official capacity as County Clerk of
Dallas County, Texas.
Plaintiffs alleged in the trial court that they
had presented to Ellis a duly executed written application for petitions for a local option election to be held within the corporate
limits of the City of Grand Prairie pursuant to authority of Article
666-32 of the Penal Code, but that Ellis had failed and refused to
.issue the petitions.
Plaintiffs sought a writ of mandamus directing
and compelling Ellis to issue the petitions, or, in the alternative,
a judgment declaring that the local option election should be conducted by the appropriate officials of Dallas County.
Stipulated facts were (1) that the City of Grand Prairie is an
incorporated home ~e city; (2) that approximately eighty percent of
the qualified voters of the City of Grand Prairie reside in Dallas
County and approximately twenty percent of said qualified voters reside in Tarrant County; (3) that the qualified voter lists are available from the County Clerk of Dallas County to determine the qualified resident voters of the City of Grand Prairie situated within
Dallas County ·and that qualified voter lists are available from the
County Clerk of Tarrant County to determine the qualified resident
voters of the City of Grand Prairie residing in Tarrant County;
(4) that the election judges, clerks and watchers may be appointed
3
in accordance with the general laws of the state to determine the
actual residence of any voters voting in such local option election;
(5) that the city hall of Grand Prairie is located in Dallas County
and all the City's official functions take place in that county, including the designation of election precincts for municipal elections;
and (6) the plaintiffs are duly qualified residents and voters of the
City of Grand Prairie.
The -trial court found as a matter of law that the Texas legislature intended to provide for a local option election in any incorporated city or town, including those cities having terri tory or
qualified voters physically located in more than one county, and that
therefore a local option election should be held and conducted for
the City of Grand Prairie by the appropriate officials of Dallas
County.
Ellis, the county clerk, appealed, contending that since
there is no clear statutory authority granting him, or any other
official of Dallas Gounty, the right to exercise jurisdiction over
that portion of the City of Grand Prairie lying in Tarrant County,
the trial court was without authority to issue the mandamus against
him and order the election to be held.
Respondents argued on appeal that the Texas Constitution is
mandatory in its language directing the legislature to enact a law
"whereby qualified voters of any county, justice's precinct or incorporated town or city'" may hold a local option election.
Thus,
the consitutional mandate is clear that the la,1 is to provide for
local option elections in every incorporated city.
The question then
4
becomes one of legislative interpretation and, in view of the constitutional mandate, the statute must be presumed to have been intended
to conform to the requirements of the Constitution.
"statutes"
§
182, p. 271.
53 Tax.Jur. 2d,
Legislative intent to include in fact all
incorporated cities in its law is seen in Article 666-32 Vernon's
Texas Penal Code in the provision stating that where the local option
election provided for therein is held by an incorporated city, the
voting places in such election shall be the same as established by
the governing body of the city for its municipal elections.
Since
this was specifically stated in the 1m-I, it should control over more
general voting rules.
In the City of Grand Prairie, all of the voting
places are in Dallas County; therefore, the Dallas County officials
should conduct the election.
Respondents insisted that they VIere not seeleing an election for
only a portion of a justice precinct as in Patton v. Texas Liquor Control Board, 293 S.W.2d 99 (Tex.Civ.App.--Austin 1956, writ ref. n.r.e.).
Nor are they seelcing an election for only a part of the City of Grand
Prairie as in Greggs v. Faullc, 343 S.H.2d 543 (Tex.Civ.App.--Fort \'Torth
1961, no writ).
Respondents seele to have the officials of Dallas
County call an election for the entire city of Grand Prairie.
Since
the voters of Grand Prairie cannot have a joint election conducted
by the officials of Dallas County and Tarrant County, each vlorlcing
in their respective counties as proposed in the Greggs case, and the
city voters cannot have separate elections in parts of the city lying
only in Dallas County or only in Tarrant County, according to the
Patton case, they must be given the opportunity to have a single election for the entire city.
To hold to the contrary
~lould
disenfran-
ohise them as voters of an inoorporated oit.y--n right. whioh
~lns
authorized by Article 16, section 20 of the Constitution of the State
of Texas.
Petitioners contended on appeal that there is no clear authority
in the Texas Liquor Control Act to require the exercise of jurisdiction by the corranissioners court of the county clerk of one county
over elections in which the qualified voters of another county are
authorized to partiCipate.
A corranissioners court has only those pow-
ers specifically conferred by the cons titution or the statutes.
Starr
County v. Guerra, 297 S.H.Gd 379, 380, pt. 2 (Tex.Civ.App.-- San
Antonio 1956, no writ; Court by Pope,
J.); Uanales v. Laughlin, 147
Tex. 169, 214 S.i'l.2d 451, 453, pt. ~ (1948).
court has no
itself.
po~rer
Article
5,
The county corranissioners
or jurisdiction beyond the limits of the county
section 18, Constitution of Texas; El Paso County
v. Elarn, 106 S.i1.2d 393 (Tex.Civ.App.--El Paso 1937).
Because the
Dallas County Corranissioners Court and the Dallas County Clerk may
exercise authority only in elections \.n.thin Dallas County , the local
option election sought by respondents could only be valid for that
portion of the city lying within Dallas County.
~lOuld
be void since it
~lould
Such an election
be effective only as to a portion of the
are authorized by the Constitution in
~lhich
a local option election
may be held, and therefore inconsistent lath the state constitution
which requires an election for the entire subdivision.
Patton v.
6
Texas Liquor Control Board; Greggs v. Faulk, supra.
Hence, a county
clerk has no duty to issue petitions for a void election.
Faulk.
Greggs v.
The Act is absolutely silent regarding a local option elec-
.t ion in a city
~mich
lies partially in t,lO counties, and there is no
clear authority in the Act to require the county officials of either
or both counties to conduct the election.
The Court of Civil Appeals held for the petitioner, stating that
the right to hold an election is not inherent in the people but must
be derived from the la'l.
21 Tex.Jur. 2d, "Elections,"
§
52, p. 282;
Ellis v. state, 383 S.lv.2d 635 (Tex.Civ.App.--Dallas 1964).
This
amendment to the Constitution concerning local liquor option elections,
(Article 16, section 20) l"as not self-enacting but grants to the legislature the pOrrer and duty to enact appropriate
local option · elections.
la~ls
relating to
The legislature enacted the various articles
of the Texas Penal Code at issue here, and delegated to the commissioners court of each county the pouer to order local option elections,
an authority vested solely in the county commissioners court and not
in the officials of the incorporated city .
The county commissioners
court has no power or jurisdiction beyond the limits of t he county
itself.
Article 5, section 18, Constitution of Texas; El Paso County
v. Elam, supra.
In passing the Act in question, the legislature
failed to provide for holding a local option election in an incorporated city which is geographically located in tVlO separate counties,
and nothing in the Act itself indicates an intention on the part of
the legislature to allow such an election.
7
Two references in the Act indicate that the legislature intended
to delegate to the commissioners court authority to hold elections in
municipal corporations wholly within the county limits.
First, the
Act places the burden upon the county to pay the expenses of holding
any local option election in the incorporated city.
Since the com-
missioners court is constitutionally restricted to county business
within the limits of the county, Dallas County Commissioners Court
has no authority in the Act or elsewhere allowing it to pay expenses
1
of an election held partly in Tarrant County.
Second, commissioners
courts are to hold the elections and state the voting place for each
of the precincts included in each municipal election precinct under
the Act.
The Act also provides that the general election
govern the appointment of the election judges and clerks.
la,~s
shall
Again,
the officials of one county would be called on to perform duties that
extend into another county's jurisdiction.
Therefore, the County
Commissioners Court of Dallas County has no authority or power to
hold a
lo~al
option election in the City of Grand Prairie, pursuant
to the Texas Liquor Control Act.
Relief from this situation is legis-
lative, not judicial.
In a petition to the Texas Supreme Court, petitioners argued
that the Court of OivilA'.ppeals' interpretation of legislative intent was unconstitutional under the Constitution of the State of Texas.
Article
1, Sec. 19 of the Texas Constitution provides that no citi,
zen shall be deprived of life, liberty, property, privileges or immunities or, in any manner disenfranchised, except by the due course
of the law of the land.
It has been held that this clause of the
8
Constitution places the same restrictions upon the state l egislature
as those imposed by the Fourteenth Amendment to the United States
Constitution.
Mellinger v. City of Houston, 68 Tex. 37 (1887).
This applies to all powers of government, whether legislative, executive, or judicial.
State ex rel Pan American Production Company v.
Texas City, 203 S.\-l.2d 780 ('tex. 1957).
Article 3, section 56 of the Texas Constitution provides that the
legislature shall not pass any local or special l aw.
The t est of
whether a law is general or special is whether there is a reasonable
basis for the classification made by the law and whether the law operates equally on all within the class.
S.W.2d 791 (Tex. 1950).
Rodri guez v. Gonzales, 227
The legislature, in passing Article 666-32,
created a class, incorporated cities, but is not treating the City of
Grand Prairie equally with other incorporated cities if this city is
not given the power to vote as a governing unit as the other incorporated cities are.
Thus the interpretation of Article 666-32,
Vernon's Texas Penal Code, by the Court of Civil Appeals fails to meet
the test of equal protection· under Article 3 and due process under
Article 1 of the state constitution.
The true intention of a legislative act should be the controlling factor.
In
Houchins v. Plainos , llO S.vl.2d 549 (Tex. 1937),
the Supreme Court of Texas, in construing a former local option
election law, stated the following:
It i s the intention of a legislative act that governs,
and statutes are often given an interpretation or construction not in technical accord with the literal words used.
Courts will not follow the letter of a statute where to do
so would violate the purpose of the act, and lead to a conclusion contrary to its evident intent.
9
The Supreme Court has likewise enunciated the rule of statutory interpretation in cases not involving the local option law.
In Sweeney
Hospital District v. Carr, 378 S.H.2d 40 (Tex. 1964), the court stated
that when the intent of a statute is clear it will be given effect by
the courts even to the extent of adding words to the languar;e used
by the legislature.
The rule of statutory interpretation
,~as
again applied in the con-
struction of the Liquor Control Act in Akers v. Remington, 115 S.\·1.2d
714 (Tex.Civ.App.--Fort Worth, 1938), where the Court of Civil Appeals
held that the prOvisions of the Act must be construed so as to make
the Act effective for the purposes intended and not so as to make it
a nullity.
Following this holding further, the Supreme Court stated
that the controlling rule of construction is that a statute will not
be given the ·one of two reasonable interpretations which would render
it unconstitutional and void.
state v. Shoppers Viorld, Inc., 380
S.W.2d 107 (Tex. 1964).
The purpose of Article 666-32 was to allow incorporated cities,
among other governing units, to hold local option elections as a governing body.
It must be construed that the legislature intended to
treat all incorporated cities equally; therefore, the City of Grand
Prairie must be allowed to hold an election as an incorporated city
under the existing statute.
Petitioners also argued that the interpretation of the statute
given by the Court of Civil Appeals violated the Equal Protection
Clause of the United States Constitution.
They stated that equal
protection was being denied because the voters of one city are being
10
deprived of the right to hold an election in accordance with the law
which is afforded all other qualified voters in the same or similar
situation in incorporated cities.
u.s.
In
Avery v. Hidland County, 390
474 (1968), the United States Supreme Court stated:
Althoueh the forms and functions of local government and
the relationships among the various units are matters of
state concern, it is not beyond question that a State's
political subdivisions must comply with the Fourteenth
Amendment.
In
.order to see if the Court of Civil Appeals' interpretation
would still allow the statute to comply with the Fourteenth Amendment, it is necessary to examine the United States Supreme Court's
opinion of what constitutes a violation of the Equal Protection
Olause by the states.
The Court's traditional view, as illustrated
in Goessaert v. Cleary, 335
u. s.
464 (1948), was that if there
,laS
a
reasonable basis for drawing a distinction (i.e., creating different
classes) in order to further a constitutionally permitted objective,
then such discrimination was not a violation of the Equal Protection
Olause.
As long as this classification had a rational relation to the
object of the statute, it was constitutional.
In Loving v. Virginia,
38B U.S. 1 (1967), a forerunner of the new view, the court stated
that when dealing with a fundamental or basic right, a compelling
state interest must be shown before discrimination in classifications
will be allowed.
The new equal protection test
,laS
in detail in Dunn v. Blumstein, 92 S.Ct. 995 (1971).
finally set out
To decide i f a
law violates the Equal Protection Clause, the court will look to
three things:
(a) the character of the classification, (b) the
individual interests affected by the classification, and (c) the
11
governmental interests asserted in support of the classification.
Thus, there is more than one
tes~
for determining if there is a
denial of equal protection, depending upon the interests affected
and the classification involved.
That is, look to the benefit with-
held U,y the classification against the basis for that classification.
The court went on to say that it was not sufficient for a state
to show a very substantial state interest, but it IlIUst show a substantial. and compelling state interest.
In pursuing that interest,
a state cannot choose means which place an unnecessary burden or restriction on a constitutionally protected activity.
If there are
other means to achieve the state I s objectives that place a lesser
burden on constitutionally protected activities, the state may not
use the means causing the greater interference.
In the
~
case, supra, the Court of Civil Appeals, in effect,
interpreted Article 666-32 as creating a class l;ithin a class--incorporated cities lying within one county and incorporated cities located
in more than one county.
fore one of location.
The character of the classification is there-
The individual interest affected by this classi-
fication is the preservation of the limitation of jurisdiction of
county officials to their o;m county, even in performing purely
~
isterial duties. ' In ;leighing the benefit Hithheld by the classification against the basis for the classification, as the Supreme
Court set out in the
~
case, supra, it is necessary to discover
the importance or value placed on the right to vote as opposed to
administrative procedures.
A survey of recent cases dealing ;1ith
the voting franchise shows that it is considered to be a highly
12
protected 'f undamental right.
In Reynolds v. Sims, 377 U.S. 533 (1964),
the Court stated that since the right to exercise the voting franchise in a free and unimpaired manner is preservative of all other
basic civil and political rights, any alleged infringement of that
right must be carefully and meticulously scrutinized.
Going more to
the question of classifications, Harper v. Virginia Board of Education, 383 u.S. 663 (1966), reasoned that because of the overriding
importance of voting rights, classifications which might invade or
restrain them must be closely scrutinized
.~here
serted under the Equal Protection Clause.
those rights are as-
Classifications which
might interfere with fundamental rights and liberties, such as the
voting franchise, must be closely examined.
The Court finally stated:
States do have latitude in determining l/hether •••
various questions shall be submitted to the voters. However, once the franchise is granted to the electorate,
lines may not be drawn which are inconsistent .n th the
Equal Protection Clause of the Fourteenth Amendment.
The importance of voting right "as pointed out in Kramer v. Union
Free School District, 395 u.S. 621 (1969).
"AIry
There the Court said that
unjustified discrimination in determining vlho may participate
in political affairs • • • undermines the legitimacy of representative government."
The Court also held that vlhen a state grants the
right to vote to some bona fide residents of requisite ace and citizenship and denies the franchise to others, it must be determined
whether the exclusions are necessary to promote a compelling state
interest.
If not, it violates the Equal Protection Clause of the
Fourteenth Amendment.
Finally, in Carrington v. Rash, 380 u.S. 89
(1965), the Court held that "the right to choose" means that States
13
may not causally deprive a class of individuals of the vote because
of some remote administrative benefit to the state.
It is arguable whether or not the limitation of jurisdiction of
county officials is merely a remote administrative benefit to the
state, but when measured against the importance of protecting voting
rights, it is not such a compelling state interest as to allow such
rights to be impinged.
It is unjustly discriminatory and therefore
unconstitutional to disenfranchise the citizens of an incorporated
city from holding an election as a governing unit simply because it
lies within trIO counties, when all others are allowed an election.
Respondent answered on appeal to the Texas SUpreme Court that
the attempt of petitioners to raise federal constitutional questions
was inadequate in this case.
Citing United states v. Jin Fuey Moy,
241 U.S. 394 , (1916), respondent contended that the kind of statutory
and constitutional questions to which the rule put forth by petitioners properly applies are not those in the present case.
In the. Hoy
case the Court stated that, "••• every question of construction is
unique, and an argument that vlOuld prevail in one case may be inadequate in another."
Using the Court's vieu of a basis for raising con-
stitutional questions in the Moy case, respondents argued that the
-
Court of Civil Appeals' construction of the statutes is conclusive
and unassailable.
In . the Hanks case, appeal to the Texas Supreme Court
upon that court's finding of no error.
\ -TaS
denied
Jurisdiction was then accepted
by the United States District Court for the Northern District of Texas,
Dallas Division since the case involved a federal question under the
Equal Protection Clause of the Fourteenth Amendment to the United
states Constitution.
The problem in the Hanks c a se may be remedied
by the passage of a proposed bill by the Texas legislature .rhich,
in effect, states that in the case of an incorporated city located in
more than one county, the ofi'icials of the county where the majority
' of citizens reside will conduct the election.
2
II.
me Hanks case, supra, illustrates the problem of determining
under the present local option statute .rhen a prescribed limit is
really a "prescribed limit."
Uoupled.'Ii th this dilemma is the difi'i-
culty of determining which election controls ,rhen boundaries of
"prescribed limits" overlap.
It is obvious that counties can totally
or partially ,encompass incorporated cities; incorporated cities can
tota.lly or partially include precincts; precincts can have more than
one incorporated City within their boundaries or can be split between tHO such cities, and the like.
To add to the confusion, Texas
law in this area has been constantly changing ever since its inception in 1887.
Under different constitutional and statutory provisions,
there have been times when:
the state
.~as
(a) all of the state .;-as ,ret, (b) all of
..ret except for dry area s created by local option elec-
tion, (c) all of the state was dry except for wet areas created by
local option election, (d) there could be a dry precinct in a ,ret
county, but not vice versa, (e) the sale of liquor could only be
prohibited, and not legalized, by election, (f) all of the state ,las
dry.
The niajor guideline in determining 'lhich election controls is
the "smallest unit rule" .,hich
,laS
set out in IVers v. l'1artinez, 320
S.H.2d 862 (Tex.Civ.App.--Son Antonio ., 1959).
The effect of that case
was to put incorporated cities on equal footing with justice precincts and counties in holding local option elections.
The court
held that the doctrine of local self-government requires that the
will of the Snialler unit shall contrOl over the will of the larger
0t 3 Thus, the will of a county could not control over the will of
UIU •
the precinct or incorporated city.
The "smallest unit rule" uas up-
held in Harren v. Hoore, 337 S.H.2d 395 (Tex.Civ.App.--Amarillo 1960).
The court stated that an election could be called in a justice precinct of a county .,hich ,las "dry" before that county had first voted
to change its dry status, that is, the justice precinct could vote
"wet. II
According to the decisions cited above, the smaller unit can
hold elections and be governed by the results regardless of the will
of the larger governing unit l,hich may encompass it.
A problem arises,
hmrever, when a ·.largerunit .dshes to hold an option. election after a
smaller unit l·dthin its boundaries has already had such an election.
Under the Patton, Grep;r;s, and
~
cases, supra, an election may not
be called for only part of one of the "prescribed limits."
These
cases lfould seem to imply that an election must be effective as to
the entire governing unit to be valid.
HOHeVer, past cases and
opinions of the Attorney General appear to hold to the contrary,
stating that a larger unit can hold a local option election even
though it ldll be ineffective for a Snialler unit within its boundaries
that has already voted on the issue.
In an opinion dated I-larch 7, 1939, (No. 0-286), the Attorney
General stated that a local option election could be held in a justice precinct to determine whether to prohibit or legalize the sale
of beer, reeardless of the fact t hat there is ,lithin the precinct
a city 1,hich voted on this issue previously.
The Attorney General
also said that the status of the city 1'Tould remain unchanged until
another election "as held within its boundaries.
The opinion was
based on Powell v. Smith, 90 S.\'1.2d 942 (Tex.Civ.App.--ForWorth
1936).
In that case a city 1Ias held to retain its "dry" status after
the county in 'Thich it was located voted "!fet."
'l'he court reasoned
that, ''VJhere local option is adopted in any locality, by the majority
of voters, it will remain in force until the qualified voters of
such particular subdivision decide othertdse in an election held for
that purpose."
The Attorney General's reasonine became a little clearer in a
subsequent opinion on October 25, 1940 (No. 0-2834).
There, the
Attorney General said that a countY-1dde local option election may
legally be held not1dthstanding the fact that certain justice precincts have held similar elections prior to the countY-1dde election.
This opinion was based primarily on Griffin v. TUcker, llB S.1<I. 635
('r ex. 1909).
In that case, the court held the follmring:
vJhere a local option election, resulting in the declaring of
prohibition, has been had in a justice's precinct, embracing
t he justices precinct, resulting in a declaration against
prohibition, ,lill not affect the status as to prohibition in
the justices precinct.
The opinion "as also based on Lambert v. Scurloclc, 285 S.H. 679
16
(Tex.Civ.App.--Beaumont 1926) and Bishop v. State, 167 S.W. 363 (Tex.
Crim.App. 1914).
In those cases cities that had already voted on
Stock Laws were not affected by later elections in an encompassing
co~ssioners
precinct and election district, respectively.
In the process of dealing with the situation of an election in
a large governing unit following an election in a smaller unit with
its boundaries, another problem has arisen.
The question is whether
an election to change the ''wet'' or "dry" status of a , locali t y nrust
be held in the identical area which had previously voted.
In the case
of Houchins v. Plainos, supra, the City of Houston Heights had prohibited the sale of liquor within its boundaries.
The city subse-
quently ceased to exist as a mUnicipal corporation, and a portion of
its former territory was annexed to the City of Houston, which has
previously voted "wet."
In holding the annexed terri tory to still be
dry, notwithstanding the annexation, the Supreme Court stated that
when an area was voted "dry,"
"i t remained dry until it
,laS
voted
wet at a subsequent election held in and for the same identical
area which had theretofore voted dry, and the change, or even abolition, of the political. or corporate entity which comprised such
area did not alter this fact or rule of law.'"
::;imilar language is
found in Griffin v. Tucker, Powell v. Smith, and Opinion of the
Attorney General (No. 0-286) as cited above.
The Attorney General
wrote another opinion, based on the Houchins case, in 1939 (No. 0-1476)
stating that where two justice precincts are combined, one of which
is wet only for beer and the other wet for all intoxicating liquors,
in order to have the consolidated precinct vote "dry" it would be
17
necessary ,to hold an election in each
precinc~
as it existed prior
to its consolidation.
It is obvious that this opinion and the similar cases would create confusion in the administration of the la'u .
There is no statu-
tory provision in the election code for holding an election only
within formerly-existing boundaries.
And, according to Patton v.
Texas Liquor Control Board, supra, a local option election conducted
in only a portion of a justice precinct is void.
A situation almost
identical to Houchins was the subject of a 1966 opinion (No. c-681)
by the Texas Attorney General.
A formerly "dry" justice precinct
of Bastrop County was consolidated into a larger justice precinct
which was "wet."
The County Attorney asked for a ruling in connec-
tion with an attempt to make the entire area of the consolidated precinct "wet," , as to (1) whether it was necessary to hold an election
for the entire justice precinct as it then existed, or only for that
portion which was formerly "dry," and (2) i f the election was to be
for the entire precinct, what form of ballot would be necessary.
The Attorney General ruled that the election should be held for the
entire justice precinct as it presently existed, and that the entire
area should be treated as wet for ballot purposes.
This opinion did
not cite or refer to the 1939 opinions discussed above, or the line
of cases holding that the status of a dry territory could not be
changed except by subsequent vote of the identical territory which
originally voted.
Upon inquiry to the Attorney General's office
about this apparent discrepancy and conflict, they merely contend
that the 1966 opinion is correct, and the apparent conflict must be
18
the result· of the many changes in the constitution
have taken place over the years.
~d
statutes that
The Attorney General probably con-
cluded that it was almost, if not absolutely, impossible to reconcile the language of these old cases with the actual practices and
resuJ.ts of recent ones, and therefore ignored them.
An
Attorney
.G eneral's opinion is not binding upon the courts, but is merely
persuasive, and parties opposing a local option election couJ.d certainly be expected to vigorously cite and urge the old cases.
III.
The "prescribed limits" set out by the Texas Constitution and
implemented in Article 666-32 of county, justice precinct, or incorporated city as bases for conducting local liquor option elections
become inadequate when the overlapping of. these governmental units
defeats the purpose of such classification as well as the "smallest
unit ruJ.e," as shown in the Hanks case, supra.
There is no clear
guideline for determining.which governmental subdivisions control.
To add to the confusion, the opinions of the Attorneys General make
it unclear as to whether the wet-dry status of a territory case be
changed by any method except subsequent vote of the identical territory which originally voted.
A revision of Texas liquor election laws is needed to clarify
these issues.
The legislature shouJ.d include in its revision proce-
dures for conducting elections in a governmental unit that is located
in more than one county.
The best ,ray to do this is to simply state
that in the case of an incorporated city located in more than one
19
county, the officials of the county where the majority of citizens
reside will conduct the election.
Also, clear standards should be
set out for determining when a governmental unit's election results
will take precedent over the election results of another governmental
unit (i.e., what constitutes a "smallest unit").
A solution to this
. would be to rely strictly on the population of a unit to determine
;lhether it is the "smallest unit."
Therefore, the unit closest to
the people would control, even though a subsequent election in the
larger unit encompassing a smaller subdivision would be effective
only as to part of that larger unit.
Finally, the legislature should
make a definite statement as to how the wet-dry status of a territory
can be changed by an election when that territory has been combined
with another unit and has ceased to retain its own identity.
In
such cases where political subdivisions cease to exist as governing
units by being incorporated into larger units, or where two subdivisions combine to form a new governmental unit, a practical solution
would be to allow .the new unit to establish its ;let-dry status by
its own election regardless of the previous status of its combined
parts.
20
NOTES
1Although the issue of election expenses might arise, since
under the Liquor Control Act the county must bear the expense of local
liquor option elections, the Act .also prescribes the use of a paper
ballot so that the cost of such election would be negligible as compared to other types of elections. Since the expense of the election
would be nominal, it should not be of controlling importance in this
cause.
2The proposed bill failed to pass in the 1973 session of the
Texas Legislature. The case is set for preliminary hearing on July
27, 1973, in the United States District Court for the Northern District of Texas, Dallas Division.
3There has been no direct decision by a court concerning the
test of what constitutes the "smallest unit" (i.e., whether geographical size or population controls). The essence of the "smallest unit rule" is to allow the unit closest to the people to govern.
l'Vers v. Nartinez. supra.