Untitled Texas Attorney General Opinion ( 1973 )

L 3
EATTORNEYGENERAI~
OF TEXAS
AUSTIN. TIEXAS 787ll
November 12, 1973
The Honorable M.D. Emerson Opinion No. H- 145
County Attorney
Lamar County Re: Construction of Article
Paris, Texas 75460 666-32 1/2(b), Vernon’s
Texas Penal Code, local
Dear Mr. Emerson: option election deposit
You have asked if a deposit of money, paid under Article 666-32 1/2(b)
of Vernon’s Texas Penal Code by private individuals for the calling of a
local option election to legalize the sale of alcoholic beverages for off pre-
mises consumption, should be refunded if no local option election had been
held in that political subdivision for many years. You advise:
“Paris is an incorporated city in Lamar County,
A ‘Petition For Local Option Election To Legalize’ was
supplied applicanta. . . . Applicants were required by
the County Clerk to deposit, in cash, $2, 366.75, pursuant
to Art. 666-32 1/2(b). The election was held in April,1972,
and the measure was defeated. . . . [P]rior to the holding
of the election, applicants made request of the County Clerk
to refund the cash deposit of $2,366.75 on the grounds that
no local option election had been held in the City of Paris
within the one year period immediately preceding the elec-
tion in Paris. , e ,
“There has been no local option election held in the
City of Paris for many years prior to the election of April
of this year, mentioned above. However, a similar local
option election was held in Lamar County in a smkil City
newly incorporated. . D within the one year period imme-
diately preceding the filing of the petition . . . , and another
such election was held in [another] . . . City , . e in Lamar
County also within the one-year period. Both are the same
type of political rubdivisi#n as the City of Paris.”
p. 683
The Honorable M.D. Emerson, page 2 (H-145)
Article 666-32 1/2 of Vernon’s Penal Code provides, in pertinent
part:
“(a) The expense of holding any local option
election authorized by the Texas Liquor Control Act
in any county, justice precinct or incorporated city
or town shall be paid by the carnty, but the expense
to the county shall be limited to the holding of one
election in each of the above po1itica.l subdivisions
within a one-year period where the intent of the
election is to Legalize the sale of alcoholic beverages
. . . . All other local option elections, excepting the
aforementioned one election in a one-year period with
intent to legalize the sale of alcoholic beverages. . .
shall be paid by the county from funds derived by the
county as prescribed in Subsection (b) of this section
as follows:
“(b) When the application for an election in a
county, justice precinct or incorporated city or town
is presented, the county clerk at the time and before
the issuance of any petition for a local option election
shaLL require a deposit in the form of a cashier’s check
in the aggregate amount of twenty- five cents per voter
* . . * The money so received shall be deposited in
the county:s general fund, and no refund shall be made
to the applicants regardless of whether the petition is
returned to the county clerk or the election is ordered,
When there is presented to the county clerk an applica-
tion which must be accompanied by a deposit, the county
clerk shall not issue a petition to the applicants unless
and until the deposit is made, and a county clerk who
issues a petition upon such an application without first
receiving the deposit is guiltyof a misdemeanor. . . .”
(emphasis added)
p. 684
The Honorable M. D; Emerson, page 3 (H-145)
It Attorney General Opinion M-724 (1970), it was decided that a
deposit made with the county clerk pursuant to Article 666-32 1/2(b)
with an application for a “local option election” in a county which had
not had such an election in the preceding one-year period should be
refunded to the depositor. Article 666-32 1/2(a) was construed as stating
that if no local option election had been held in the preceding one-year
period in the same political subdivision, the expense dthe election is that
of the county. If there had been such an election in the prior one-year
period in that political subdivision, the paragraph (b) requirement for a
deposit would become mandatory. The use of the phrase “an application
which must be accompanied by a deposit” was interpreted as an implied
recognition that there are applications which do not require such deposits.
Any other construction would change the statute into an “application fee”
statute, Opinion M-724 pointed out, and because of the failure to adequately
describe it as such in the caption of the legislative act in which it was in-
cluded, would render it invalid. (Article 3, 5 35, Constitution of Texas).
The question of which political subdivisions can hold local option
elections is settled by Article 16, 5 20, of the Texas Constitution. Counties,
justice’s precincts, and incorporated cities or towns are on an equal footing.
See Article 666-32, V. T. P. C., as’ amended (Acts 1973, 63rd Leg., ch. 20,
pa 508); Myers v. Martinez, 320 S.W.2d 862 (Tex. Civ. App., San Antonio,
1959), error ref.n.r.e., 326 S.W.2d 171 (Tex. 1959). Compare Perkins v.
State, 367 S.W.2d 140 (Tex. 1963); Warren v. Moore, 337 S.W.2d 395
(Tex, Civ. App., Amarillo, 1960, writ dism.). Also see Attorney General
Opinion M-931 (1971). Therefore, we believe the one-year limitation applies
separately to each particular such subdivision.
In our opinion, the private individuals calling for a local option elec-
tion in Paris should not have been required to make a deposit with the county
clerk, and such deposit should be refunded.
SUMMARY
Because there had been no ,local option liquor
election in the City of Paris within a one-year period,
no deposit of money should have been required under
p. 685
The Honorable M.D. Emerson, page 4 (H-145)
Article 666-32 1/2(b) of private individuals calling for
a local option election to legalize the sale of alcoholic
beverages for off premises consumption, and the amount
paid should be refunded.
Very truly yours,
v Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 686