ORAL ARGUMENT REQUESTED

ONLY IF GRANTED TO RELATORS

No. 05-10-00805-CV
IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
AT DALLAS

IN RE MARCUS WOOD, THE KIRKWOOD TEMPLE,

THE AFRICAN.AMERICAN PASTORSCOALITION,
THE INTERDENOMINATIONAL MINISTERIAL ALLIANCE OF DALLAS,
THE MT. TABOR BAPTIST CHURCH AND THE LIFEWAY CHURCH

RESPONSETO PETITION FOR WRIT OF MANDAMUS

AND APPENDDVSUPPLEMENTALMANDAMUS RECORD

THOMASP. PERKINS,JR. CITY ATTORNEY'SOFFICE

DallasCity Attorney

CharlesEstee(TexasBar No. 06673600) 1500Marilla Street,Room7D North

BarbaraE. Rosenberg (Texas
Bar No. 17267700) Dallas,Texas75201
AssistantCity Attorneys Telephone:2l4-670-3519
Telecopier : 214-670-0622

ATTORNEYSFORRESPONDENTS
 IDENTITY OF PARTIES AND COUNSEL

Pursuantto TBX. R. App. P. 38.2(a), counsel for Respondents,City of Dallas,

hereby adoptsRelators' Identity of Partiesand Counsel with the following supplementto

Respondents'counseland identification of the real parties in interest:

PARTIES COUNSEL

Relators: Leland C. de laGarza

Marcus Wood Andrew L. Siegel
Unidentified Coalition of Opponents Timothy D. Zeiger
to Local Option Election Derek D. Rollins
Kirkwood Temple ShackelfordMelton & McKinley
African-American PastorsCoalition 3333Lee Parkway, Tenth Floor
InterdenominationalMinisterial Alliance Dallas,Texas75219
Of GreaterDallas Telephone: 214-180-1400
Mt. Tabor Baptist Church Facsimile:214-780-1401
Lifeway Church

Respondents,in their respective

fficial capacities: ThomasP. Perkins,Jr.
City Secretary,City of Dallas, Texas Dallas City Attorney
Deborah Watkins CharlesEstee
Dallas Citv Council Members: BarbaraE. Rosenberg
Tom Leppert AssistantCity Attorneys
Delia Jasso Tennell Atkins City Attorney's Office
Pauline Medrano Sheffie Kadane 1500Marilla, Room 7D North
David A. Neumann Jerry R. Allen Dallas,Texas7520I
Dwaine R. Caraway Linda Koop Telephone: 214-670-3519
Vonciel JonesHill Ron Natinsky Telecopier: 214-670-0622
SteveSalazar Ann Margolin
Carolyn R. Davis Angela Hunt

Real Parties In Interest:

Signersof the Application for Local Option
Election (seeRelators'App'x Tab B)

Signers of the Petitions for the Local Option

Election (seeMR 000006-000017)
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is unnecessarybecausethis Court does not have subject-matter

jurisdiction and Relators have an adequate remedy at law. Under well established

precedent, the Court lacks subject-matterjurisdiction becauseof the Relators' lack of

standing, mootness,and this Court's lack of authority to inquire into the validity of the

calling of an election. Further, under well-establishedprecedent,the Relators can bring

an election contest, a statutorily created adequateremedy at law. Finally, a simple

reading of the applicable statutes demonstratesthat the Realtors' claims are without

merit. Accordingly, Relators' petition should be summarily denied.

In the alternative, if oral argument is granted to the Realtors, the Respondents

requestoral argumentto addressthe issues.

 TABLE OF CONTENTS

IDENTITYOF PARTIES
AND COUNSEL.............. .......................
i

STATEMENTREGARDINGORALARGUMENT.......... .............ii

INDEX OF AUTHORITIES .........

vi

RESPONSE
TO STATEMENTOF JURISDICTION....... ..............
xi

RECORDREFERENCES......... ....................
xii

RESPONSE
TO ISSUESPRESENTED........... ............xiii

1. This Court does not have subject-matter

jurisdiction over this
petitionfor writ of mandamus.

2. Realtorsare not entitled to mandamusrelief becausethev cannot

satisfythe standards
for mandamus relief.

INTRODUCTION(LocalOptionElectionProcedures)............. ......I

STATEMENTOF FACTS .............3

SUMMARYOF ARGUMENT........... ............5

ARGUMENT........... ......7

I. Relators are not entitled to mandamusrelief becausethe Court lacks

jurisdiction.
subject-matter ...................7

A. The Court does not have subject-matterjurisdiction because

Relators'claimsarebarredby theseparation
of powersdoctrine.
...............
8

B. The Court doesnot havejurisdictionbecauseRelators'mandamus

request
is moot.... ....1l

C. The Court does not have jurisdiction over Relators' mandamus

request
becausetheylackstanding... ........13

1. MarcusWoodhasno standingto bringthismandamus

action........
13

lll
 2. The churchesand related associationsdo not have standingto
petition for writ of mandamusfor themselvesor on behalf of
theirindividualrespective members. .......... ....................
15

a. Members of Relator organizations do not have

standing. ............
16

b. Relator organizational goals are not germane to the

l i ti g a tion. ...........I7

c. Relator organizations cannot show the relief required

doesnot requirememberparticipation............ .....19

II. Relators are not entitled to mandamusrelief becausethev cannot satisfv the
standard for mandamus relief ..........-..... fq
..............

A. Ma n d a mu sta
s n d a r ds.............. .......... ........
19

B. Relators are not entitled to mandamus relief becausethey cannot

showthat they do not havean adequateremedyat law. ............21

C. Relators are not entitled to mandamus relief because the City

Councilcompliedwith its dutyby callingtheelecrion..............
.................23

D. Relators are not entitled to mandamus relief because the City

Secretary complied with her duties by certifying that a sufficient
numberof qualifiedvoterssignedthe petition.............. .............26

E. Relators are not entitled to mandamusrelief becausethe historical

boundariesof dry areashave no impact on the validity of calling this
e l e cti o n . .......... ........29

C O N C L US IONA N D p R A yE R ...................35

CERTIFICATEOF SERVICE .....36

RESPONDENTS' SUPPLEMENTAL MANDAMUS RECORD AND

APPENDIX............. ....37

Certification

Affidavit of DeborahWatkins .......Tab1

IV
City Secretarymemorandumand certification....... Tab 2

Excerptof web-pageof the Kirkwood Temple............. ..Tab 3

Excerpt of the web-pageof the Lifeway Church Tab 4

TEX.ALCoBBv.CooE $ 251.73........... Tab 5

Attorney GeneralOpinion M-355 .Tab 6

Attorney GeneralOpinion DM-44 Tab 7

Excerptof the TexasSecretaryof Stateweb-pagere local option elections....Tab8

 INDEX OF AUTHORITIES

CASES
Akers v. Remington,
1 1 5S .W.2 d 7 1 4(T e x.C i v. App.- For t W or th 1938,wr it dism' d) ............ ...........25

Allstate Ins. Co. v. Hallman,

1 5 9S .W.3 d 6 4 0(T e x.2 0 0 5) ..............
11

Blum v. Innier,
997 S.W.2d259(Tex. 1999) 8,14,17,24

Brady v. Fourteenth Court of Appeals,

7 9 5 S .W.2 d 7 l 2(T e x.1 9 9 0)( or ig.pr oceeding) ............ ........6

Brown v. Todd,
53 S.W.3d297 (Tex.200l) 14, 16

Building and Constr. Tradesv. Downtown Dev., Inc.,

448F.3dr38 (2d Cir. 2006) ...............
18

Burns v. Kelly,
658 S.W.2d73l (Tex. App.-Fort Worth 1983,orig. proceeding) ......20

Bush v. Vela,
535 S.W.2d803 (Tex. Civ. App.-Corpus Christi 1916,orig. proceeding)..........21

Callahanv. Giles.
137Tex. 511,155S.W.2d793 (1941)(orig.proceeding)............ ........20

Carter v. Fourteenth Court of Appeals,

789 S.W.2d260(Tex. 1990)(orig.proceeding)............. .......6

Citizensfor Fair Taxesv. SweetwaterIndep. Sch.Dist. Bd. of Trustees,

807 S.W.2d45l (Tex. App.-Eastland 199I, orig. proceedingfleavedenied]).....6

City of Austinv. Thompson,

2 1 9S .w .zd5 7 (T e x.1 9 4 9 ) ......... .........8

City of Dallas v. Dallas Consol. Elec. St. Ry. Co.,

1 4 8S .W.2 9 2 (T e x.1 9 1 2 ) ....................8

City of Farrners Branch v. Ramos,

235 S.W.3d 462 (Tex. App.-Dallas 2001, no per.) ............
11
 City of Houston v. Albright,
666 S.W.2d2l9 (Tex. App.-Houston [14thDist.] 1984),
writ ref'd n.r.e.,6775.W.2d487(Tex. 1984)....... 21,28

City of McAllen v. Garza,

869 S.W.2d558 (Tex.App.-Corpus Christi 1993,writ denied)............................8

Coker v. Tex.Alcoholic BeveragesComm'n,

524 S.W.2d570 (Tex. Civ. App.-Dallas 1975,writ ref'd n.r.e.) ........33

DaimlerChrysler Corp. v. Inman,

2525.w3d299(Tex.2008) ..............
13
Ellis v. Vanderslice,
486 S.W.2d156(Tex. Civ. App.-Dallas 1972,no writ).. ...9, 10, 12,22

Estrada v. Adame,
951 S.W.2d 165 (Tex. App.-Corpus Christi 1997, orig. proceeding) 19,20

Ex parte Barcett,
3 7 S . W . 2 d7 4 1( T e x . 1 9 3 1 ) ..................8

Fed. Deposit Ins. Corp. v. NuecesCounty,

8 8 6S .W.2 d 7 6 6(T e x.1 9 9 4) ........1t,tz

Fisher v. Harris County RepublicanExecutive Comm.,

744 s.w.2d339 (Tex. App.-Houston [1stDist.] 1988,orig. proceeding)..........20

Gen.Land Office v. OXY U.S.A.,Inc.,

7 8 9 S .w .2 d5 6 9(T e x.1 9 9 0) ..............12

Houchinsv. Plainos,
1 1 0S .w .2 d5 4 9(T e x. 1 9 3 7) ..............32

Hunt v. Bass,
6 6 4 5 .w .2 d 3 2 3(T e x.1 9 8 4) ..............14

Hunt v. Wash.StateApple Adver. Comm'n,

4 3 2 U . 5 .3 3 3( 1 9 7 7 .). . . . . . . . . . . . . . . . . . .1. 5 .1 6

Hutson v. Smith,
191S.W.2d779(Tex.Civ. App.-Galveston 1946,no writ)... ............12

In re Baker,
No. 01-10-00022-CV,2010 WL 670185
(Tex. App.-Houston [14thDist.] Feb.25,2010,orig. proceeding) ......7

vii
In re Bell,
9 1 S .W.3 d7 8 4(T e x.2 0 0 2) ................21

In re Davis,
2 6 9 S .W.3 d5 8 1(T e x.2 0 0 8) ..10.24,32

In re Prudential Ins. Co. of Am.,

148 S.W.3d 124(Tex. 2004)(orig.proceeding)............ ......19

In re Roof,
130 S.W.3d4l4 (Tex. App.-Houston [4th Dist.] 2004,orig. proceeding)
........28

Jacksonv.State,
1 1 8S . W . 2 d3 1 3( T e x .C r i m .A p p . 1 9 3 8 ) . . . . . . . . . . . . . . . ..............33

Johnsonv.Hughes,
663 S.W.2d11 (Tex.App.-Houston [1stDist.] 1983,orig.proceeding)
............21

Kennedyv. Burnett IndependentSch. Dist.,

4 7 4 5 .W.2 d 7 4 2 (T e x.
C i v.App.- Austin l972,nowr it) ................9,22

Izggett v. Cochran,
193S.W.2d729(Tex.Civ. App.-1946, no writ) ...............12

McGuire v. City of Dallas,

151S.W.2d617(Tex.Civ. App.-Waco 1941,writ dism'd,jdgmt cor.).............21

McSpaddenv. Carter,
802 S.W.2d246(Tex. App.-Houston [1stDist.] 1990,orig. proceeding)............6

Myers v. Martinez,
320 S.W.2d862(Tex. Civ. App.-San Antonio),
w r i t re f'd n .r.e .,3 2 6S .W.2d17| ( Tex.1959) ....... ........ .......32

Narro Warehouse,Inc. v. Kelly,

530s.w.2d146(Tex.civ. App.-corpuschristi1975,
writref'dn.r.e.).......
.....21
Oney v. Ammerman,
458 S.W.2d54 (Tex. 1970)(orig.proceeding)............. .......20

Ramirezv. Flores,
505 S.W.2d406(Tex.Civ. App.-San Antonio 1973,writ ref'd n.r.e.)...............20

Reesev. Comm'rs Court,

861 S.W.2d281(Tex.App.-Tyler 1993,no writ) .............20

vl11
RetiredChicagoPoliceAss'nv. City of Chicago,
7 F.3d584(7thCir.1993) ..................18

Rivercenter Assocs. v. Rivera,

858 S.W.2d366(Tex. 1993)(orig.proceeding)............ ......21

Roberts v. Brownsboro Indep. Sch.Dist.,

5 7 5 S .W.2 d 3 7 l(T e x.C i v. App.- Tyler 1978,wr it dism' d) .............
...................22

Rossanov. Townsend,
9 S.W.3d357 (Tex. App.-Houston [14thDist.] 1999,no pet.) ..........22

Tatumv. Collier.
No. C14-87-00870-CV,1989WL 111365
(Tex.App.-Houston [14thDist.] Sept.28, 1989,no writ).... ..............22

Taxpayers'Political Action Comm.v. City of Houston,

596 S.W.2d147(Tex. Civ. App.-Houston [1stDist.]
1979,orig.proceeding)...... .................20

Tex.Ass'n of Bus. v. Tex.Air Control Bd.,

8 5 2S .w .2 d 4 4 0(T e x.1 9 9 3) ........13.
15

Tex.PeaceOfficersAss'nv. City of Galveston,

9 4 4 F .S . r p p . 5 6 (2S . D .T e x .1 9 9 6 ) . . . . . . . . . . . . . . . .......15

Trulockv. City of Duncanville,

277 5.W.3d920(Tex.App.-Dallas 2009,no pet.) ............
ll

Walker v. Packer,
827 S.W.2d833 (Tex. 1992)(orig.proceeding)............ 19,21

STATUTES
TBx.Ar-co.Bnv.ConB$ 251.021......... .......29
Tpx.Ar-co.Bev.Conpg 251.73 30,31,32,33
Tex.Ar-co.BBv.Coos$ 251.80........... 30,3I,32,33,34
TBx.Ar-co.BEv.Cooe$ 251.82........... .......32
Tpx.Alco. BEv.Coopch.25l .......................
I
TEx.Erpc.CooeS 221.003......... .................22
TBx.Er-Bc.
Coos$ 273.061 ...........7

1X
 RESPONSETO STATEMENT OF JURISDICTION

jurisdiction becauseof the separationof powers

The Court lacks subject-matter

doctrine,mootness,andthe Relators'lack of standing.

 RECORD REFERENCES

the Respondents
For convenience, will refer to the recordasfollows:

Petition for Writ of Mandamus: Pet. at p4p

MandamusRecord: MR volume:pAge

Appendix to Petition for Writ Relators'App'x Tab_, at p4p

Respondents'Appendix/ City's App'x Tab_, atIAE

MandamusRecord

K1l
 RESPONSE TO ISSUES PRESENTED

1. This Court does not have subject-matterjurisdiction over this petition for writ of
mandamus.

2. Relators are not entitled to mandamus relief because they cannot satisfy the
standardsfor mandamusrelief.

xllt
 No.05-10-00805-CV

IN THE COURTOF APPEALS

FORTHE FIFTHJUDICIALDISTRICTOF TEXAS
AT DALLAS

IN RE MARCUSWOOD,THE KIRKWOODTEMPLE,
THE AFRICAN-AMERICANPASTORSCOALITION,
THE INTERDENOMINATIONALMINISTERIALALLIANCE OF DALLAS,
THE MT. TABOR BAPTISTCHURCHAND THE LIFEWAY CHURCH

RESPONSETO PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF APPEALS:

On June 23, 2010, the City Council for the City of Dallas called for a citywide

local option election for November 2,2010 on whether to legalize the sale of beer and

wine for off-premise consumption. The Relators seek mandamus relief attacking the

validity of the decision to call the election. This Court lacks subject-matterjurisdiction

over the contentionsassertedand the Relators have failed to establishthev are entitled to

mandamusrelief.

INTRODUCTION
(Local Option Election Procedures)

The local option election is a statutorily created procedure by which a political

subdivision of the State may Legalizeor prohibit the sale of alcoholic beveragesthrough

an election. SeeTnx. CoNST.art. XVI, $ 20; Tpx. Er-Bc.Coos ch. 501; Tpx. Alco. Bpv.

CooE ch.25l. Political subdivisionsare given a wide variety of options of the types of

salesto Iegalizeor prohibit. SeeTBx. Et-Bc.Cooe $ 501.035(b).

 The first step toward a local option election is that 10 or more qualified voters of

the municipality file an application with the city secretary and submit proof of

publication in a newspaper. Tnx. EI-BC.CoDE $$ 501.023(a);501.109.1 The city

secretarythen issues a petition to be circulated among qualified voters of the city for

signaturesin favor of calling a local option election. Id.

From the date when the petition is issued,the applicantshave 60 days to securethe

necessary number of signatures and file the petition with the city secretary. Id.

$$ 501.032(a);.109. Upon filing, the city secretarythen checksthe namesof the signers

to determine if there were sufficient qualified voters of the city on the petition. Id.

$$ 501.031(a),.109. For the election such as at issue here, the number of necessary

signatureswas 35 percentof the registeredvoters in the city who voted in the most recent

gubernatorialelection. Id. $$ 50t.032(a)(1)(A), .109. The city secretarymay use a

statistical samplemethod to verify the signaturesunless a citizen of the city requestsand

pays for the cost of verifying eachsignatureon the petition. /d. $$ 501.031(a),.109. The

city secretaryhas approximately 30 days to determine whether sufficient signatureswere

provided. 1d. $$ 501.032(a),.109 At the city council's next regularsessionon or after the

thirtieth day after the petition is filed with the city secretary,the city council shall order

the local option election if the petition bearsthe sufficient number of required signatures.

Id. $$ 501.032(a),.109. The petition and the action taken with the respectto the petition

are then enteredinto the minutes of the city council. 1d. $$ 501.033; .109. The city
'Section 501.109 provides that a municipality
that is located in more than one county, such as Dallas,
shall conduct the local option election. Throughout the code concerning local option elections, any
reference to the county and county officials is to be construed as the municipality and its comparable
officials. TEX.ELEC.Coop $ 501.109.
secretaryis also to certify the number of qualified voters signing the petition. Id.

.109. Theelectionproceeds
$$ 501.031(a), andtheresultsarecertified.Id. $$ 501.101-

.155.

STATEMENT OF FACTS

The City Secretarywas presentedwith a requestfor an application for petition for

a local option election on whether to legalize the sale of beer and wine for off-premise

consumption. (MR 000001-000005;City's App'x Tab 1, at 2).2 The applicationwas

determinedto be proper and a petition was issuedon March 23,2010. (City's App'x Tab

l, at 2). On May 20, 2010, a petition supportedby approximately 109,000signatures

requesting that a local option election be held was filed with the City Secretary. (MR

000006-000016;City's App'x Tab 1, at 2). Whether the petition was supportedby

sufficient signatures had to be determined by June 23, 2010. Tex. Emc. CoDE

$ 501.032. (City's App'x Tab 1, at 2; MR 000124). The City Secrerarybegan a

statisticalsampling of the signatures. (City's App'x Tab 1, at 2). On June 3, 2010,

Marcus Wood requestedthat all of the petition's signaturesbe verified rather than having

the petition's signaturesbe verified by a statisticalsample. (MR 000041; City's App't

Tab 1, atZ). On June 8, 2010, the City SecretaryadvisedMr. Wood of the estimatedcost

but that such verification would not begin until receipt of payment. (MR 000040; City's

App'x Tab 1, at 2). On June 15, 2010, the City SecretaryadvisedWood that the cost

would increasebecauseof the shortenedtime to complete the verification. (MR 000035;

2
Another petition for a local option election on whether to legalize the sale of mixed beverages
in restaurantswas submittedat the sametime as the beer and wine petition. (City's App'* Tab 1,
atZ).
 City's App'x Tab 1, at 2). On June 15, 2010,counselfor Relatorsmadepartial payment

for the estimatedcost of the total verification. (MR 39 [Relators'App'x Tab E], 000104;

City's App'x Tab 1, at2). The City Secretaryproceededwith a verificationreview of all

the signatures.(City's App'x Tab 1, at 2). On June 17, 2010,Relators' counselpaid the

remaining portion of the estimatedcost. (MR 36 [Relators' App'x Tabs F], 000104;

City's App'* Tab 1, at2).

On June 23, 2010, the City Secretary advised the City Council that a sufficient

number of valid signatureshad been verified. (MR 000043-00044;City's App'x Tab 1,

at 2-3). As a result of the determination, the City Council called for the local option

election. (MR 000046-000095;

City's App'* Tab 1, at 3).3 On July 16,2010,the City

Secretaryprovided a memorandumto the City Council advising them of the total number

of valid signatures.(City's App'x Tabs 1, at3,Tab2).

On July 2,2010, Relatorsfiled this action complainingof allegederrorsin the call

of the local option election. Relators claim that the City Secretaryhad not yet provided a

total actual number of the signaturesdeterminedto be valid, that the City Council could

not call the election until such number was provided, and that any citywide election

would be improper becausethere neededto be separateelections for each so-called dry

areabut only if the petition contained sufficient signaturesfrom voters in each those dry

areas.

'
The signaturessupporting the petition for the local option election regarding mixed beverages
were reviewed by statistical sample and the City Secretary determined that sufficient valid
signaturesto call the electionhad been provided. (MR 000043; City's App'^ Tab I, at 2). On
Jtne23,2010, an electionon that petition was also calledby City Council. (City's App'x Tab 1,
at2-3).
 As explainedbelow, the City disputesthesecontentions.

SUMMARY OF ARGUMENT

Through this mandamusproceeding,the Relators seek to challengethe validity of

the Dallas City Council's order of calling a local option election. The Relators have

failed to establish that the Court has subject-matterjurisdiction, that their claims are

appropriatefor mandamusrelief, or that the underlying legal and factual basisis correct.

This Court lacks jurisdiction for three reasons. First, the separationof powers

doctrine requires that the judicial branch of the governmentrefrain from intervening in a

called election. No court is at liberty to question the validity or propriety of the petition

for an election once the election is called, until after the election. Second,the Relators

complain and seekto compel actions that are to occur before the election is called, but the

election has already been called and the requestedrelief is moot. Also, the Relators

complain about the lack of a certification of the actual number of valid signatures,but

this number has been provided to City Council and any claims based on that complaint

are moot. Third, the Relators all lack standing. They bring this action like any other

voter and have no injury distinct from the generalpublic.

Even if the lack of jurisdiction is ignored, mandamus relief would be

inappropriate. The Relators have an adequate remedy at law: an election contest.

Through that statutorily createdprocess,any voter is given standingto challengewhether

an electionwas properly called.

Even if the lack of jurisdiction and the presenceof an adequateremedy at law are

ignored, Relators are not entitled to relief because the City officials fulfilted and
complied with their duties and Relators have disregardedthe controlling statutes. The

obligation on the City Secretarywas to determine whether the petition was supportedby

the required number of signatures of qualified voters of Dallas. This she did. The

obligation of the City Council was to call the election once it was informed that the

petition was supportedby at least the required number of signatures. This it did.

There is no obligation to limit the petition or the election to dry areasof Dallas.

There is no obligation to verify signaturesbasedon the voters' residencein dry areasof

Dallas. There is no obligation to conduct separateelections for the dry areasof Dallas.

The Relatorsrely on a statutethat applies only to justice precincts and they simply fail to

discuss the statute that governs the controlling effect of a citywide municipal election.

The legislature has dictated that a citywide municipal election can occur and controls

over all areasof the municipality even though parts of the municipality are dry becauseof

prior electionsof other governmentalentities.a

Finally, while not a ground in the petition for writ of mandamus,the Relators

claim that the petition for the local option election was supported by an insufficient

number of valid signatures. (Pet. at 8,23). The City disputesrhe claim. (MR 000043-

000044;City's App'x Tab 1, at2-3,Tab 2). The determinationof the validity of petition

signaturesis a fact issue,discretionary,and inappropriatefor mandamusreview.s

o
The one exception is that justice precincts that are wholly contained within a municipality are
unchangedby the contrary results of a citywide election.
t
5"" Brady v. Fourteenth Court of Appeals, 7g5 S.W.2d 712, 714 (Tex. 1990) (orig.
proceeding);Carter v. Fourteenth Court of Appeals, 789 S.W.2d 260, 261 (Tex. 1990) (orig.
proceeding);McSpaddenv. Carter, 802 S.W.2d 246,246-47 (Tex. App.-Houston [1st Dist.]
 The Court should dismiss the petition for want of jurisdiction or, in the alternative,

the Court should deny the petition.

ARGUMENT

I. Relators are not entitled to mandamus relief becausethe Court lacks subject-
matter jurisdiction.

Section273.061of the TexasElection Code grantscowts of appealsjurisdiction to

"issue writ of mandamus to compel the performance of any duty imposed by law in

connectionwith the holding of an election. . . ." Tex. Elec. Cooe S 273.06L However,

the statute does not dispense with the need to satisfy the requisite of subject-matter

jurisdiction. For example, if a relator lacks standing, then the court of appeals lacks

subject-matterjurisdiction to issuea writ of mandamus. In re Baker, No. 01-l0 -00022-

CV, 2010 wL 670185, at xl (Tex. App.-Houston t14th Dist.l Feb. 25, 2010, orig.

proceeding)(mem. op.).

The City challenges the Court's subject-matterjurisdiction to hear Relators'

petition for writ of mandamuson three grounds. First, the separationof powers doctrine

limits this Court's authority to interfere in the City Secretary's count of signatures

supporting the petition and the City Council's call of the local option election. Second,

the City Secretaryand the City Council have performed the acts they were required under

statute to perform making this action moot. And finally, none of the Relators have

standingto bring this action.

1990, orig. proceeding); Citizensfor Fair Taxesv. SweetwaterIndep. Sch. Dis.t Bd. of Trustees,
807 s.w.2d 451,453 (Tex. App.-Easrland 1991,orig. proceeding[leavedenied]).
 A. The Court doesnot havesubject-matterjurisdictionbecauseRelators'
claimsare barred by the separationof powersdoctrine.

Pursuant to the constitutional separation of powers between the legislative and

judicial branchesof government,this Court lacks authority or jurisdiction to either delay,

prevent,or to inquire into the validity of this called election. SeeBlum v. Innier,997

S.W.2d 259, 263 (Tex. 1999) (holding that the separation of powers and judicial

deferenceto the legislative branch required that judicial power not be invoked to interfere

with or delay the electiveprocess);City of Austin v. Thompson,2Ig S.W.2d 57, 59 (Tex.

1949) ("This court has adoptedthe view that it is beyond the power of a court of equity to

enjoin an election or any incident to it, although the election may be called without

authority and thereforeabsolutelyvoid."); Ex parte Barrett,37 S.W.2d 741, 742 (Tex.

1931) ("Consequentlythe matter of stoppingthe progressof an election,merely for the

pu{pose of inquiring into its validity, lies outside of the general scope of judicial

power."); City of Dallas v. Dallas consol. Elec. st. Ry. co., 148 S.w. 292,294 (Tex.

1912) ("When it is declared that becauseof their relation to the political power of the

govemment, elections are beyond the control of the judicial power, it is meant that the

whole election, including every step and proceeding necessaryto its completion, is

exemptfrom judicial interference. . . ."); City of McAllen v. Garza,869 S.W.2d558, 561

(Tex. App.-Corpus Christi 1993, writ denied) ("Not one casestandsfor the proposition

that a district court has jurisdiction over suit to declare an election order void while the

electionprocessis in progress.").
 Relators' petition for writ of mandamusis brought for the purpose of interfering

with a called local option election. Relators are opposed to this local option election.

(Pet.at 9-I3; MR 97-102,217-218). They claim that the City Council's action in calling

the election was improper. (Pet. at 15). They seek mandamusrelief to compel City

officials to take certain actions"before a local option election is ordered." (Pet. at 13).

Relators argue the election could not be properly called unless or until the actual number

of valid signatorieswas known. (Pet. at 19-28). In their last issue, they argue that the

election could not be properly called becauseseparateelections for the dry areas were

required and only after a determinationthat sufficient signaturesfrom each dry areawere

provided. (Pet. at 28-32). The petitioning for and calling of an election is part of the

elective process. Ellis v. Vanderslice,486 S.W.2d 156, 160 (Tex. Civ. App.-Dallas

1972, no writ); Kennedy v. Burnet Indep. Sch. Dist., 474 S.W.2d 742, 146 (Tex. Civ.

App.-Austin 1972, no writ). Thus, they put in question the call of the election and

attemptto interferewith the ongoingelectionprocess.(Pet.at 17).

This Court has already directly dealt with an attempt to judicially interfere with a

local option election and this Court concludedit had no authority, prior to the election, to

inquire into the validity of the petition requestingthe election. Ellis,486 S.W.2d at 156.

The Ellis case involved an attempt to prevent a county clerk from certifying to the

commissionerscourt the petition for a local option election. Id. at 156-157. The

opponentsto the election claimed, like here, there were insufficient valid signaturesto

supportthe petition. Seeid. at 157. This Court held:

 The rule is well establishedin Texas that the equitablepowers of the cowts
may not be invoked to interfere with public officials in taking any of the
steps involved in an election. This rule . . . is also based on the more
fundamental principle that an election is an exercise of a political power
beyondjudicial interferenceat any stage.

Id. at 159. The opponentsargued that officials could be compelled by mandamusto do

their duty but the Court noted there is a difference betweenjudicial action that facilitates

an election and judicial action that interferes with that process; an official could be

compelled to order an election but the calling of an election could not be restrained. 1d.

at 159.6 The Court explained there was no basis for distinguishing between the duty of

the official to determine the statutory requisitesfor calling the election and the duties of

public officers involved in any subsequentstageof the election process. Id. at 160. The

Court added, "Since determination of the regularity of the petition is thus expressly

recognizedas a part of the election processwhich may be attackedin a statutory contest,

the conclusion follows that it is a step in the process not otherwise subject to judicial

interference." Id. at 160. The Court concludedthat the entire election process,including

the examining and certifying of the petition for local option elections,was immune from

judicial interferenceuntil after the election was over. 1d.

Becauseall the caseauthority, including this Court's, establishesthat this Court

does not have jurisdiction to interfere with a called local option election as Relators

request,this Court should dismiss Relators' petition for want of jurisdiction.

6 Relators
rely on In re Davis, 269 S.W.3d 581 (Tex. 2008), to suggestthat a court may inquire
into whether the petition is "proper." (Pet. at 29-32). But that case involved a decisiol not to
call an election rather than whether an election had been properly called.

r0
 B. The Court does not have jurisdiction because Relators' mandamus
request is moot.

The mootnessdoctrine implicates subject-matterjurisdiction. Trulock v. City

of
Duncanville, 277 s.w.3d 920, 923 (Tex. App.-Dallas 2009, no per.). courts
lack
jurisdiction over moot claims. Fed. Deposit Ins. Corp. v. Nueces
County,886 S.W.2d

766,767 (Tex. 1994). A caseis moot if a controversyceasesto exist or the partieslack

a

legally cognizableinterestin the outcome. Allstate Ins. Co. v. Hallman,159 S.W.3d 640.

642 (Tex.2005). The mootnessdoctrinedictatesthat a court avoid renderingan advisory I

opinion by only deciding an issue that presentsa "live" controversy at the time of the

decision. City of Farmers Branch v. Ramos,235 S.W.3d 462, 469 (Tex. App.-Dallas

2007,no pet.).

Here, Relators seek mandamus relief to compel City officials to take certain

actions "before a local option election is ordered." (Pet. at 13). On June 23,2010,the

City Council adopted an ordinance ordering the special local option election
on
November2,2010. (MR 47-95 [Relators'App'x Tab H]). Relatorssoughtrelief in
this
Court ten days after the election was ordered. The requestsfor actions before an ordered

election are moot.

Here, no relief can be afforded before the election is called becauseit has already

been called. Furthermore,the exact number of valid signatureshas been certified

by the
City Secretary(City App'x Tab 1, at 3; Tab 2). Thereis simply nothing to adjudicate
that
can affect the electionproceeding.(see discussionsectionr.A., supra).

11
 There are two exceptions to the mootness doctrine: (1) the "collateral

consequences"exception and (2) the "capable of repetition" exception. Gen. I-and Office

v. OXY U.S.A.,[nc.,789 S.W.2d 569, 571 (Tex. 1990). The collateralconsequences

exception applies when the effects of prejudicial events that have occurred will continue

to stigmatizeindividuals long after the judgment has ceasedto operate. Id. Any claimed

prejudicial effect of an improperly called election will be reversed with a successful

judgment in an election contest. The capable of repetition exception requires that the

complained of action be capable of repetition yet not effectively reviewable. See

generally Fed. Deposit Ins. Corp., 886 S.W.2d at 767.7 But an issue does not evade

appellatereview if appellatecourts have addressedthe issue on the merits. Seeid. And

the appellate courts have addressedthe proper manner to validate petitions and courts

have reviewed petitions. See,e.g., Ellis,486 S.W.2d at 160 (challengesto local option

petition can be brought in an electioncontest);Leggettv. Cochran, 193 S.W.2d 729 (Tex.

Civ. App.-1946, no writ) (electioncontestdeterminedpetition valid with typographical

error); Hutson v. Smith, 191 S.W.2d 179 (Tex. Civ. App.-Galveston 1946, no writ)

(election contestdeterminedpetition valid though it did not stateissueexactly as required

by statute).

The City Secretary having counted the signatureson the petitions, certified the

required number to call the election, and certified the number of valid signaturesalong

'
The SupremeCourt has yet to determine the viability of a third exception, the public interest
exception. If ever recognized it too requires that the complained of action is not effectively
reviewable.Fed.DepositIns. Corp.,886S.W.2dat767.

l2
 with the Council calling the election moots this controversy. Accordingly, the
Court
should dismiss this petition for want of jurisdiction.

C. The Court does not have jurisdiction over Relators' mandamus request
becausethey lack standing.

A basic subject-matterjurisdictional requirementis that the claimant have standing

to bring the lawsuit and seekrecovery. See Tex. Ass'nof Bus.v. Tex.Air Control
Bd.,
852 s.w.2d440,443-45 (Tex. l9g3). The TexasSupremecourt explained:

The requirement in this State that a plaintiff have standing to assert a

claim derives from the Texas Constitution's separationof por"., among
the departmentsof government, which denies the judiciary authority to
decide issuesin the abstract,and from the Open Courts provision, which I
provides court accessonly to a "person for an injury done him." A court
has no jurisdiction over a claim made by a plaintiff without standing to
assert it. For standing, a plaintiff must be personally aggrieved; his
alleged injury must be concrete and particularized, actual oi imminent.
not hypothetical.

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 200g) (citations

omitted).

Relators seek a writ of mandamusagainst city officials in the calling of

a local
option election. The Court must determine whether Relators established
as a pleading
and factual basis that they meet the required elements of standing. No
Relator can
establishor has establishedstandingto requesta writ of mandamus.

1.. Marcus Wood has no standing to bring this mandamus action.

In order to establish individual standing, Marcus Wood must demonstrate

he
possessesan interest distinct from the generalpublic such that the
City's alleged actions

have causedhim some special injury. see Hunt v. Bass,664 s.w.2 d

323, 324 (Tex.

13
 1984). He cannot establish standing by merely claiming participation in the electoral

system; rather, he must establish an individualized, concrete injury that arises from an

interest in the dispute that is distinct from the interest of the public at large. Brown v.

Todd, 53 S.W.3d 297, 302 (Tex. 2001) ("No Texas court has ever recognizedthat a

plaintiff's statusas a voter, without more, confers standingto challengethe lawfulness of

governmentalacts. Our decisionshave always required a plaintiff to allege some injury

distinctfrom that sustainedby the public at large.").

Marcus Wood allegeshe is a registeredvoter and residesin the City. Wood's

status as a voter or as a resident of Dallas is insufficient to grant him standing. See

Brown,53 S.W.3dat302.

Wood attempts to distinguish himself from other voters becausehe requesteda

total signatureverification and "arranged" for payment of the cost of the verification by

an unidentified coalition interestedin the outcomeof the proposedelection. (pet. at 9-10;

MR 217-218). Wood does not have a stake in the count different from other voters

becauseWood did not pay for the count. To establishstanding in this case,Wood must

demonstratethat he possessesan interest distinct from the general public such that the

City'sactionshavecausedhim somespecialinjury. SeeBlumv. Lanier,ggT 5.W.2d25g.

261 (Tex. 1999). He merely states that he aranged for payment. (MR 218). The

payment for the count was made with a cashiers' checks from Andy Siegel. (MR 36

l4
[Relators'App'x Tab F], 39 lRelators'App'x Tab E], 104;City App'x Tab 1, at 2). This

paymentby Siegel doesnot createa specialinjury for Wood.8

BecauseWood has not and cannot show a specialinjury, he has not met his burden

to demonstratehe has standing. Accordingly, this Court should dismiss for want of

jurisdiction Wood's requestfor mandamusrelief.

2. The churches and related associations do not have standing to

petition for writ of mandamus for themselves or on behalf of
their individual respective members.

An associationmay assertstandingin one of two ways: (1) on its own behalf,

having suffered a palpable injury as a result of the defendant's actions (direct standing);

or (2) as the representativeof its members (associationstanding). Hunt v. Wash. State

Apple Adver. Comm'n,432 V.S. 333, 341-42(1977); Tex.PeaceOfficersAss'n v. City of

Galveston,944 F. Supp.562, 563-64(S.D. Tex. 1996). Relator organizationsonly claim

associationalstanding. (Pet. at l2).

The Texas Supreme Court has adopted a three-prongedtest for representational

associationstanding. See Tex.Ass'n of Bus.,852 S.W.2d at 447. The test requiresthat

associationsmeet the following criteria in order to have standing to bring suit in a

representativecapacity: (1) members of the associationmust otherwise have standing to

sue in their own right; (2) the interests that the association seeks to protect must be

germaneto the orgarization's purpose;and (3) the claim assertedand the relief requested

8
Section501.031of the TexasElection Code requiresa citizen of the city both requestand pay
for the cost of the verification. Furthermore in the petition Relators represent that Wood
arranged for payment by "a coalition interested in the outcome of the proposed election."
(Pet. 10 n.22). There is no evidence in the record to support the statement. Wood's affidavit
makesno suchassertion.(MR 218).

15
must not require the participation of individual associationmembers in the lawsuit. Id.

Relator organizationsfail to meet theseprongs.

a. Members of Relator organizations do not have standing.

The petition and affidavits do not demonstrate that the members of Relator

organizationshave standing or a right to sue on their own. Relator organtzationsonly

assert that some of their members are registered voters. For example, the affidavit of

StephenC. Nash statesthat the Ministerial Alliance representsregisteredvoters and Mt.

Tabor Baptist Church includes 2000 registeredvoters. (MR 97). Likewise, the affidavit

of Jerry L. Christian statesonly that the African-American Ministers Coalition represents

pastors of churcheswith registeredvoters and that registeredvoters are members of his

congregation of Kirkwood Temple. Finally, the affidavit of Karen Hollie states that

Lifeway Church includesregisteredvoters. (MR 101). The fact that theseorganizations

have membersthat are registeredvoters does not confer standing. SeeBrown, 53 S.W.3d

at302.

Although the Kirkwood Temple, the African-American Pastors Coalition and

Lifeway Church state they have membersopposedto the local option election (MR 100,

101), opposition to an election is not a different interest or injury from the generalpublic.

SeeBrown, 53 S.W.3d at 302. The only other interestthat they assertis the interestin

having a lawfully called election. (MR 100) That too is an interest of the generalpublic

and is not limited to the residentsof any particular part of the City. The Texas Supreme

Court has not recognized standing to question the processof calling an election by any

one other than a signer or distributor of a petition. Brown,53 S.W.3d at 302. And for

I6
those persons standing has only been recognized to assurean election, nor prevent one.

Id.; seeBlum, 997 S.W.2d at 261 (standingto preventmisleadingballot language). The

members of Relator organizationsdo not claim to be signers of the petition nor do they

claim they want the election to proceed.

The only interest that Relator organizationshave shown is that their membersare

voters. They have failed to show that their members would have standing. Without

showing their members would have standing to bring this mandamus, all of Relator

organizationsfail to meet the first elementof associationalstanding.

b. Relator organizational goals are not germane to the

litigation.

Next, the Relator organizationshave not and cannot show that the request for

mandamus relief is germane to the goals of the organizations. Not all the Relator

organizationseven asserta purpose. Mt. Tabor Baptist Church and Interdenominational

Ministerial Alliance of Dallas have not statedtheir purpose. (MR 97-98). Thus, those

Relator orgarizations have failed to demonstrate to the Court that their purpose is

geffnaneto this litigation.

The other three Relator organizations(Kirkwood Temple, the African-American

Pastors Coalition and Lifeway Church)e assert that their purpose to advance the

"religious, economic,safety,health, and community interest." (Pet. at l3). There is no

indication, however, that the actions complained of in the petition would affect the

interestsor membershipof the organizationsin any way. "The germanenesstest simply

e
Theseare the only Relator organizations
to statea purpose. (SeeMR 96-101).

t7
requiresthat 'an organization'slitigation goals be pertinent to its specialexpertiseand the

grounds that bring its membership together."' Retired Chicago Police Ass'n v. City of

Chicago,T F.3d 584,607 (7th Cir. 1993). The proper geffnaneness

inquiry is as follows:

A court must determine whether an association's lawsuit would. if

successful,reasonably tend to further the general interests that individual
members sought to vindicate in joining the association and whether the
lawsuit bears a reasonableconnection to the association'sknowledge and
experience.

Bldg. & Constr. Tradesv. DowntownDev., lnc.,448 F.3d 138, 149(2d,Cir.2006).

The goal of this litigation is to inquite into the validity of the calling of the election

by requiring the City Secretaryand the City Council to take certain actions. (Pet. at 32-

33). This request is not gennane to the expertise of the organizationsor the reason the

members are part of the organizations. In fact, the Kirkwood Temple on its website

statesthat the church is "committed to building a new community basedupon the Biblical

mandate to demonstrateour love for Christ through the love we show one another."

(http\\kirkwoodtemplecme.org
[City's App'* Tab 4]). Likewise, the Lifeway Church's

missionstatementstates:

We existto reachup............ Praise

To reachout........... ......Evangelism
And to reachin............. Discipleship

(http\\www.lifewaychurchofdallas.com
fCity's App'x Tab 5]). The purposesof these

organizationsand their membership have nothing to do with city officials' conduct in

calling an election.

None of the Relator organizations are able to show that the interests that the

association seeks to protect are gennane to the organization's purpose. Accordingly,

18
Relator organizations have not met the second element for establishing associational

standing.

Relator organizations cannot show the relief required

does not require member participation.

Relator organizationspled no facts and presentno evidencethat the litigation does

not require the individual members of the organizations. They cannot because the

members of the associationsdo not have standing to bring the mandamusat all. (See

discussion Section I.C.2.a, supra). Accordingly, the third element of associational

standinghas not been met.

BecauseRelator organizationshave not and cannot establishthe three elementsof

associationalstanding, this Court does not have subject-matterjurisdiction over Relator

organizations'requestfor mandamus. The Court should dismiss for want of jurisdiction

the Relator organizations'requestfor mandamusrelief.

II. Relators are not entitled to mandamus relief because they cannot satisfy the
standard for mandamus relief.

A. Mandamus standards.

If the court has subject-matterjurisdiction, it may issue mandamusonly to correct

a clear abuse of discretion or the violation of a duty imposed by law when there is no

other adequateremedy at law. In re Prudential Ins. Co. of Am., I48 S.W.3d 124, 135-36

(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.w.2d 833, 839 (Tex. l99z)

(orig. proceeding). Mandamus review of the actions of an election officer applies the

samestandardthat appliesto actionsof a trial judge. Estrada v. Adame,951 S.W.2d 165,

167 (Tex. App.-Corpus Christi 1997,orig. proceeding). Mandamusis appropriateonly

19
when the election officer's duty to act is clearly fixed and required by law. Id. (citing

Oney v. Ammerman,458 S.W.2d 54, 54 (Tex. 1970) (orig. proceeding);Burns v. Kelly,

658 S.W.zd 731, 733 (Tex. App.-Fort Worth 1983, orig. proceeding); Taxpayers'

Political Action Comm. v. City of Houston, 596 S.W.2d 147, 148 (Tex. Civ. App.-

Houston [lst Dist.] 1979, orig. proceeding). In other words, a relator must clearly be

entitled to the performanceof the respondent'sduty. Estrada,95l S.W.2d at 167 (citing

Callahan v. Giles, I37 Tex. 571, 155 S.W.2d 793,795 (1941) (orig. proceeding). A

mandamuswill issue to compel a ministerial duty, but an act is consideredministerial

only when the law clearly spells out the duty to be performed by the official with

sufficient certainty that nothing is left to the exercise of discretion. Reesev. Comm'rs

Court, 861 S.W.2d 28I,283 (Tex. App.-Tyler 1993,no writ). If an issueof fact exists

as to either the right or the duty involved, the appellate courts lack jurisdiction to issue

mandamusrelief. Taxpayers' Political Action Comm.,596 S.W.2d at 148. Without

mandamus, the relator must have no other plain, adequate and complete method of

redressingthe wrong, or of obtaining the relief to which the relator is entitled, so that,

without the issuanceof the writ, therewould be a failure of justice. Estrada,95l S.W.2d

at 167 (citing Ramirezv. Flores,505 S.w.2d 406,411 (Tex. Civ. App.-San Antonio

1973,writ ref'd n.r.e.).

In a mandamusproceeding,a relator's petition must clearly and directly set out the

facts that entitle the relator to relief . Fisher v. Harris County Republican Executive

Comm., 144 S.W.2d 33.9, 340-41 (Tex. App.-Houston llst Dist.] 1988, orig.

proceeding);Bush v. Vela,535 S.w.2d 803, 805 (Tex. Civ. App.-Corpus Christi 1916,

20
orig. proceeding). This "stringent test of exactness"is necessary,becausemandamusis

an extraordinaryremedy that should not issue "without careful, individual scrutiny of the

facts alleged." Bush, 535 S.W.2dat 805; seealso Johnsonv. Hughes,663 S.W.2d 11, 12

(Tex. App.-Houston [lst Dist.] 1983, orig. proceeding)("Mandamus actions require

certainty in the pleadingsand as to the facts."). Therefore,the writ is not available unless

the petition is "specific and positive in its averments" showing a clear and unqualified

right to the writ. McGuire v. City of Dallas, 151 S.W.2d 617,618 (Tex. Civ. App.-

Waco 1941, writ dism'd, judgmt cor.); see also Narro Warehouse,Inc. v. Kelly, 530

S.W.2d 146, 149 (Tex. Civ. App.-Corpus Christi I975, writ ref'd n.r.e.) ("In order to

invoke the jurisdiction of a District Court to hear and determine the issuesraised in a

petition for mandamus,it is incumbent upon the complaining pafiy to statein his petition

the necessaryfacts clearly, fully, and unreservedly,by direct and positiveallegations.").

Mandamus is an extraordinary remedy, not issued as a matter of right, but at the

discretionof the court. RivercenterAssocs.v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)

(orig. proceeding). Mandamus may not be used to establish or enforce an uncertain or

disputedclaim. City of Houston v. Albright, 666 S.W.2d 279,281 (Tex. App.-Houston

[14th Dist.] 1984),writ ref'd n.r.e.,677 S.W.2d 487 (Tex. 1984)(per curiam).

B. Relators are not entitled to mandamus relief becausethev cannot show

that they do not have an adequate remedy at law.

To obtain mandamusrelief, the Relatorsmust show they have no adequateremedy

at law. Walker,827 S.W.2d at 839. Relatorsacknowledgethis basicrequirementbut do

not addressit in their petition. (Pet. at 16). Relators do not show they do not have an

2l
 adequateremedy at law becausethey cannot. The legislature has created an adequate

remedyat law throughthe processof an electioncontest. SeeTBx.Elec. Coop. title 14.

After an election has occurred, a court has the authority to ascertainwhether the

outcome of a contestedelection was not the true outcome becausean election official

made a mistake. TEX. Et-pc. Coon * 22L003(aX2)(C). If an attack is made on the

electiveprocess,it is an election contest. Robertsv. BrownsboroIndep. Sch. Dist.,575

S.W.2d 371,374 (Tex. Civ. App.-Tyler 1978,writ dism'd). Whethera petirion was

supportedby sufficient signaturesor whether an election was properly called is part of

the elective processand appropriatefor an election contest. Ellis,486 S.W.2d at 160;

Kennedy,474 S.W.2d at746; seealso Rossanov. Townsend,g S.W.3d 357 (Tex. App.-

Houston[l4th Dist.] 1999,no pet.); Tatumv. Collier, No. C14-87-00970-CV,19g9wL

111365,at x1,3-5 (Tex. App.-Houston t14th Disr.l Sept.28, 19g9,no writ) (not

designatedfor publication). Chapter 501 of the Texas Election Code, which governs

local option election, specifically referenceselection contests. See TEX. ELEC.Cone

$$ 501.109(d); 501.155. The legislature determined that any dispute regarding rhe

propriety of an election once called should be addressedin an election contest. As

Relators have an adequateremedy at law, they are not entitled to mandamusrelief. The

Court must deny the writ.

22
 C. Relators are not entitled to mandamus relief because the Citv Council
complied with its duty by calling the election.

Relators contend that the City Council could not call for a local option election

until it received a certification with the actual number of qualified voters signing the

petition. (Pet. at 25-28). A reading of the statutedoesnot supportthe claim.

Section 501.032(a) of the Texas Election Code requires that a governing body
suchas the City Council:
shall order a local option election . . . if the petition is filed with the voter
registrar not later than the 60th day after the petition is issuedand bearsthe
actual signaturesof a number of qualified voters of the political subdivision
equal to at least . . . 35 percent of the registered voters in the political
subdivision who voted in the most recent gubernatorialelection . . . .

Trx. Elpc. Coos $ 501.032(a). There is no requirement that City Council be provided

the actual total number of signaturesof qualified voters on the petition before calling an

election. Indeed, if a statistical sampling method was used there would never be a

certification of the actual total number of signatures. The statuteprovides that the City

Council "shall order" the election if the petition is supported by signaturestotaling at

least 35 percent of the City of Dallas registeredvoters who voted in the last gubernatorial

election. Id. The City Secretarycertified to City Council that the petition was supported

by the necessarysignaturesand the City Council complied with its mandatedduty. (MR

000043-000044;City App'x Tab 2, at3).

The absence of a fixed duty required by law is highlighted by the Relators'

argument. They acknowledgethat this Court has concluded that when governing bodies

were provided a certificate of sufficiency by the voter registrar, the governing body had

no discretion but to order an election. (Pet. at26). Thus, under those authorities,the Citv

23
Council clearly actedin accordancewith its duty by orderingthe election. SeeBlum,99J

S.W.2d at 262 ("When the requisite number of qualified citizens sign such a petition, the

municipal authority must put the measureto a popular vote."). Relators argue that the

cases are of "dubious precedential value." (Pet. at 26). Again, the standard for

mandamusrelief is a duty clearly fixed and required by law. The fact that the Relators

question existing case law indicates that city officials complied with their duties under

existinglaw.

Further the case they cite to question previous case law does not support their

assertion.RelatorscrteIn re Davis,269 S.W.3d581 (Tex. 2008),to suggestthat the City

Council had a duty to examine the petitions. (Pet. at 26-27). But In re Davis was not a

casethat required a specific examinationof petitions. The issue in that casewas whether

the commissionerscourt was subject to mandamusrelief for not ordering an election.

The court concluded that the local option petition was not "proper" because it was

contrary to the expressterms of the controlling statute and therefore the commissioners

court could refuse to call the election. In re Davis, 269 S.W.3d at 585-86. The

commissionershad the discretion to make the determination but the court did not hold

that the commissionershad a duty to independentlycertify the petitions.

Here, the City Council accepted the City Secretary's certification. Relators

suggestthat the City Council had a duty independentof the City Secretaryto verify rhe

signatures. (Pet. at 28). The assertionis unsupportedby any authority and ignores that

section501.031placesthat duty on the voter registrarand not the governingbody. TEX.

Et-Bc.Cooe $ 501.031. Section501.032doesnot require certificationor verification by

24
the governingbody. TEX.ELEC.Coos $ 501.032.Further,the Dallas City Charterplaces

the duty on the City Secretary to examine petitions to determine whether the requisite

number of qualified voters have signed the petition. (Relators' App'x Tab R). Finally, a

city council has the discretionto rely on the city secretary'sverification. See Akers v.

Remington,115 S.W.2d7I4,720 (Tex. Civ. App.-Fort Worth 1938,writ dism'd) ("The

commissionerscourt could adopt any means it thought right and proper to ascertainif

those signing the petition were legal voters . . . and whether or not 10 per cent of the

qualified voters of the county had signed it.").

The Texas Secretaryof State,as the state'schief electionofficial, is chargedwith

obtaining and maintaining uniformity in the application, operation, and interpretation of

the election laws, Tex. Emc. CooB $$ 31.001, 31.003, and concludes that the

responsibility for verifying signaturesis with the city secretary,not the city council:

Generally, the county voter registrar is responsiblefor verifying the petition

signatures. In counties which have an elections administrator,petitions are
verified by the administrator. If the city or town is located in more than one
county, th9 city or town secretary is responsible for verifying the
signatures.lo

The law imposesno duty on the City Council to verify petitions. Relators have failed to

establish that the City Council had any other obligation but to call the election. They

certainly have failed to establishthat the City Council violated any duty clearly fixed and

required by law.

r0 Local option
Liquor Elections - Questions and Answers at $ IV(e) at
http://www.sos.state.tx.us/elections/laws/liquorelections.shtml.
(City'sApp'x TabI, p.25).

25
 Moreover, the Relators have failed to articulate how the failure to identify the

actual number of valid signatures on the certification made the petition improper.ll

Relators argue that a certification of the actual number of qualified signaturesassiststhe

Council in making the determination of whether the petition was proper. (pet. at 27).

Relators do not suggest how that information would assist the Council in that

determination. Whether the number of valid signatureswas one or one million more than

necessary,the duty to call the election would be unchanged.

In that regard, none of the Relators explain how they have been harmed by the

City Council's action in ordering an election based on a certification stating that the

petition was supportedby the required number of signaturesas opposedto a certification

with the actualnumber. The City's Council's duty was to call an electionif supportedby

the required number of signaturesfrom registeredvoters. TEX. ELEC.CooB $ 501.032.

The City Council performed that duty. Thus, the petition for writ of mandamusshould be

denied.

D. Relators are not entitled to mandamus relief because the City

Secretary complied with her duties by certifying that a sufficient
number of qualified voters signed the petition.

The Relators complain that the City Secretary had a duty to certify the actual

number of qualified voters before the City Council could call the election. (pet. at 19-

25). After completing her quality review, the City Secretary has certified the actual

tt
The Relators apparently argue that the city council had discretion to refuse to call an election
yet had a ministerial duty to call if the petition was proper and properly certified. (pet.
at 27,
28). Relators do not suggestthat the City Council abusedits discretion by calling an election
basedon a certification that the statutoryrequirementshad been met.

26
number of qualified voters signing the petition. (City's App'x Tab 2). The City

Secretarydid not abuseher discretion or fail to perform a ministerial duty.

Section501.031(a)of the TexasElection Code provides the method for signature

verification of a local option petition. TBx. Elsc. Coon $ 501.031(a). It statesthat rhe

voter registrar shall check the signaturesto determinewhether the signerswere qualified

voters. Section501.031(a)alsoreuiresthe official chargedwith verificationto certify the

number of qualified voters signing the petition:

The political subdivision may use a statistical sampling method to verify

the signatures,except that on written requestfrom a citizen of the political
subdivision for which an election is sought, the political subdivision shall
verify each signatureon the petition. The citizen making the request shall
pay the reasonablecost of the verification. The registrar shall certify to the
commissionerscourt the number of qualified voters signing the petition.

Id. The Election Code is to be construedin considerationof the objective sought to be

obtained. In re Bell, 9l S.W.3d 784, 785 (Tex. 2002). The phrase o'thenumber of

qualified voters signing the petition" must be read in the context of its purpose. The

purposeis to inform the governing body whether there are sufficient signaturesto require

calling the election. That purpose is fulfilled if the governing body is informed that the

number of qualified voters signing the petition is equal to or greater than 35 percent of

those who voted in last gubernatorialelection. Nothing in the statutestatesan actual total

number is required and if a statistical sampling was performed an actual total number

would never be determined. Once the city secretarydeterminesa petition is supportedby

sufficient signatures,the city secretaryhas a ministerial duty to certify the petition. See

27
 In re Roof, 130 S.w.3d 414, 416-19 (Tex. App.-Houston ll4th Dist.l 2004, oig.

proceeding)(involving petition for charteramendments).

Moreover, the statute does not set a time requirement for the certification of an

exact number. None of Relators' argumentsaddresswhen the certification of number

needsto be made. The Secretaryof Statesimply notes:

Most laws required the reviewer to certify that there are either enough
signaturesor not enough signatures. For example, if there are 100 "good"
signatures,and 100 is enoughto require the election, it is irrelevant if there
are 500 additional "bad" signatures. Most reviewers find it helpful to go
through the petition first to count of "perfect" signaturesbefore spending
time on "borderline" signatures.rz

Accordingly, Relators have failed to establish the existence of the claimed duty.

Mandamus cannot issue to enforce a non-existent or uncertain claim. Albright, 666

S.W.2dat28l.

As with their claim against the City Council, none of the Relators explain how

they have been harmed by the City Secretary'saction in providing a certification stating

that the petition was supportedby the required signaturesas opposed to a certification

with the actual number. The City's Secretary's duty was to determine whether the

petition was supportedby the required number of signaturesfrom registeredvoters. The

City Secretaryperformed that duty. For this additional reason, the petition for writ of

mandamusshould be denied.

12
Petition Questions and Answers al at
$(G)(ll)
http://www.sos.state.tx.us/elections/laws/petitions.shtml.
(emphasisoriginal).

28
 E. Relators are not entitled to mandamus relief because the historical
boundaries of dry areas have no impact on the validity of calling this
election.

Relators seek mandamusrelief directing the City Secretaryto count, verify, and

certify the number of registeredvoters who signed the petition who also resided in each

political subdivision that previously voted dry. (Pet. at 33). Relators argue that the

signaturesof voters residing in the historically dry areasshould be consideredseparately

from the signaturesof the rest of the citizens of the City. (Pet. at28-32). No such duty is

imposed on the City Secretary. Relators ignore the statutory requirementsthat govern

different govemmental entities covering the same area. The City has followed the

statutesapplicableto municipal local option elections.

Section 501.021 of the Election Code provides that on proper petition by the

required number of voters of a municipality, the governing body of the municipality shall

order a local option election.l3 TBx. EI-Bc.Coon $ 501.021. Secrion501.031(a)states

that the voter registrar shall check the nameson the petition and voting precincts in which

the signers reside to determine whether the signers were qualified voters of the

municipality. Id. S 501.031(a).Section 501.102(b) statesthar municipal local option

electionsshall use the municipality's electionprecincts. TEX.ELEc. Cooe $ 501.102(b).

For cities such as Dallas located in multiple counties, the city conducts the local option

13 regn
proper petition by the required number of voters in a county, justice precinct, or
municipality in the county, the commissionerscourt shall order a local option election in the
political subdivision to determine whether the sale of alcoholic beveragesof one or more of the
various types and alcoholic contents shall be permitted or legalized in the political subdivision."
Tsx. Emc. Cons $ 501.021. Section 501.109 of the Texas Election Code stares that for
municipalities located in one or more counties,any referenceto the county and county officials is
to be construedas the municipality and its comparableofficials. Tpx. Elec. Coop $ 501.109.

29
 election,not the counties. TEx. ELEC.Coop $ 501.109. Nothing in thesesratutesor any

other applicable statute requires the City Secretary to count, verify, and certify the

number of registered voters who resided in areasthat previously voted to be dry. And

Relators cite to no statutory authority to support their claim. To the contrary, the only

statutory authority for returning to old boundariesis limited to justice precincts. See Tnx.

ALCO. BBv. CooE $ 251.80. Accordingly, there is no statutory duty requiring the

countingas suggestedby Relators.

Instead, the controlling statutes,which Relators fail to discuss,establish the City

Secretaryacted in accordancewith her duties. A municipality is authorizedto determine

or alter its wet or dry statusby election.TEx. Er-Bc.CooB $ 501.021;Tnx. ALCg. BEV.

ConB S$251.71(b), .72. Section 25I.73, titled "Prevailing Status: Resolution of

Conflicts." states:

To insure that each voter has the maximum possible control over the status
of the saleof alcoholic beveragesin the areawhere he resides:,

(l) the status that resulted from or is the result of a duly called
election for an incorporated city or town prevails against the status
that resultedfrom or is the result of a duly called election in a justice
precinct or county in which the city or town, or any part of it is
contained:and

(2) the statusthat resultedor is the result of a duly called election for
a justice precinct prevails against the status that resulted from or is
the result of a duly called election in an incorporatedcity or town in
which the justice precinct is wholly contained or in a county in
which thejustice precinctis located.

Id. S 251.73. Pursuantto this section, in conjunction with the authorization to determine

or alter the municipality's status,the resultsof most recentmunicipal local option prevail

30
 over the results of any prior local option election "called in a justice precinct or county in

which the city . . . or any part of it is contained." Thusoeven if there was a prior county,

justice precinct, or municipal election for any part of the municipality, the latest election

of the municipality prevails for the entire municipality. The only exception is if the

justice precinct is wholly contained within the city. The statute recognizes that the

smallest political subdivision is the municipality unless the whole justice precinct is

within municipal boundaries.

Relators' reliance on section 251.80 is misplaced because:(1) it is limited to

justice precincts, and (2) Section 251.73 controls over it: "Nothing in this section is

intendedto affect the operationof section251.73of this code." 1d. g 251.80.

The legislature was confronted with the particular problems related to conflicting

local option election results over the same geographicalareas. Pursuantto the grant of

authority under article XVI, section 20 of the Texas Constitution, the legislature adopted

rules to clarify just which election controls.ra Under that framework, if a local option

election is called for an incorporatedcity, the results of that election prevail over all other

previous elections in the geographicalarea of that city except as to justice precincts that

are locatedwholly within the city. Id. 5 251.73. Theseprovisionsconfrol and the calling

of an election for the entire City of Dallas was proper.

to
The Texas Constitution grants the legislature the broad authority to enact laws related to local
option elections. TEx. CoNsr. art. XVI, $ 20. The only limitation is that if a county,justice
precinct, town or city had voted to be dry prior to the adoption of this constitutional provision,
then the political subdivision shall remain dry until the political subdivision conducts a
subsequentelection to be wet. Id. Contrary to Relators' arguments,nothing in the constitution
requires that the subsequentelection be limited to the historical boundariesor to some formerlv-
existingpolitical subdivision.

31
 In the face of this direct statutory mandate,Relators attempt to rely on four cases

as support for the contention that a local option election can only be held in the

historically dry areas. However, eachis distinguishableon the facts and the then-existing

applicablelaw.

Relatorsfirst rely on Houchinsv. Plainos, 110 S.W.2d549 (Tex. 1937). Houchins

was not a local option election case. A former city had voted to be dry. It was

subsequentlyannexedinto a wet city. The issuewas whether the act of annexingthe area

or the 1935 adoption of the constitutional amendment revoking statewide prohibition

changedthe statusof the former city. The court concludedthat neither event changedthe

status. The court emphasizedthat when the former city voted dry and was later annexed,

"the local option laws of this state governed, and governed exclusively the matter of

voting upon such question." Id at 553. The caseis limited to the proposition that a dry

city could not be made into a wet city by simply dissolving the city and transferring the

territory into another city that was wet. See Myers v. Martinez, 320 S.W.2d 862, 865

(Tex. Civ. App.-San Antonio),writ ref'd n.r.e.,326S.W.2d171 (Tex. 1959). Houchins

did not involve the effect of a subsequentlocal option election and certainly did not

involve the effect of sections251.71 to 251.82 of the Texas Alcohol BeverageCode.

Thus, it providesno supportfor Relators'claims.

Relatorsalso rely on In re Davis,269 S.W.3d 581 (Tex. 2008),but its effect is

limited to subsequentelectionsin justice precinctsand is governedby Section 251.80.

As noted above,that sectionstates,except as provided in section25l.73, oncea justice

precinct votes on a local option election the statusremains unchangeduntil a subsequent

32
election in the same territory. Tpx. Alco. BEV. Coos $ 251.80(a). The legislaturein

enacting sections 251.13 and 251.80 required that a change in a justice precinct status

could happen only in an election in the same historical territory unless the election

occurred in a city or town. The called election at issue here is not for a justice precinct

and thereforesection25I.73 controls.

Relatorsnext rely on Jacksonv. State,118 S.W.2d 313 (Tex. Crim. App. 1938),

but it also is inapplicable. In that case, a justice precinct had voted to be dry and the

county subsequentlyvoted to be wet. The court concludedthat the dry statusstill applied

for the justice precinct. Although the case was decided long before the adoption of

section251.73(2),the holding is consistentwith the statute. The smallersubdivisionvote

controlled over the larger subdivision. Again, a municipality is considered a smaller

subdivision unlessthe whole justice precinct is within municipal boundaries.

Finally, Relators rely on Coker v. Texas Alcoholic Beverage Commission, 524

S.W.2d 570 (Tex. Civ. App.-Dallas 1975,writ ref'd n.r.e.). However,the casesupports

the application of section 251.73. The general facts are the same as Jackson A justice

precinct voted to be dry and a subsequentcounty election voted to be wet. The justice

precinct election was held to prevail over the county election. But in discussing the

applicable law, the court noted that in l9l3 the legislature adopted the provisions now

found in sections251.73 and 251.80of the Alcoholic BeverageCode and concludedthat

the statute "declared the law as it existed since the adoption of the 1935 amendment[to

the Texas Constitutionl." Id. at 576. Thus, since 1935 the law has provided that a

33
subsequentlocal option election of a city prevails over prior local option elections for

areaswithin the city unlessthat areais a justice precinct wholly containedwithin the city.

This conclusion finds further support from the opinions of the Texas Attorney

General. In the first opinion letter, the question presentedwas what was the effect of a

subsequentlocal option election on an annexedarea into a city. Op. Tex. Att'y Gen. M-

335 (1969) [City's App'x Tab 6]. An annexedareahad previouslyvoted to be wet for all

purposes.There was a subsequentcitywide local option election and, as a result, the sale

of alcohol for on-premise consumption was prohibited but the sale of alcohol for off-

premises consumption was approved. The Attorney General concluded that since

qualified voters in the annexedareaparticipated in the local option election subsequentto

annexation, the latest expression of the population of the entire city controlled. Id.

[City's App'x Tab 6, at2].

Another opinion involved the authority of county commissionersto set boundaries

for local option elections. Op. Tex. Att'y Gen. DM-44 (1991) [City's App'r Tab 7]. The

Attorney General first noted that section 251.80 of the Texas Alcoholic Beverase Code

applied only to justice precincts. He then continued:

Accordingly, only those political subdivisions enumerated in the

constitution and statutes may exercise local option through the electoral
processprescribedby chapter 251 of the Alcoholic BeverageCode, and
such elections must be held in the entire political subdivision for which the
election is called. No provision of the Alcoholic BeverageCode authorizes
the disenfranchisementof voters in any portion of a city that is within the
political subdivisionfor which the electionis to be held.

34
Id. [City's App'* Tab 7, at 4]. The Texas Secretaryof Statelikewise concludes:"There

is no authority in the Texas Election Code nor the Texas Alcoholic BeverageCode for a

local option electionto be limited to part of a city."rs

The City Secretaryand the City Council were presentedwith a petition for a local

option election for the entire city of Dallas. The election will affect the entire city. There

is no statutory prohibition or caselaw against calling such an election and there is no

authority for calling an election for just a portion of the city or to have petitions

segregatedby sections of a city. Relators have not met their burden in contesting the

actions of the City officials or establishing that the City officials had a clear duty to

separatelycount signatut'esin accordancewith the voters' residencesin particular former

political subdivisions. The petition for writ of mandamusshould be denied.

CONCLUSION AND PRAYER

The Relators have failed to establishjurisdiction, the lack of an adequateremedy

of law, or the failure of City officials to perform any duty imposed by law. For all these

reasons,the Respondentspray that the petition for writ of mandamusbe dismissed or

denied in whole, or alternatively in part, and the elective processbe allowed to continue.

15
Local option Liquor Elections - Questions and Answers at $v(H)
http://www.sos.state.tx.us/elections/laws/liquorelections.shtml.
(City's App'x Tab 8, at l0).

35
 Respectfully submitted,

THOMASP. PERKINS.JR.

es EsteeTexasBar No. 06673600

BarbaraE. RosenbergTexasBar No. 17267700
AssistantCity Attorneys

City Attorney's Office

1500Marilla Street,Room 7D North
Dallas,Texas7520I
Telephone: 214-670-3519
Telecopier: 214-670-0622

ATTORNEYS FOR RESPONDENTS

CERTIFICATE OF SERVICE

On this the 19th day of July, 2010, a true and correct copy of the foregoing
document was mailed to Realtors' counsel, Leland C. de la Garza, Andrew L. Siegel,
Timothy D. zeiger, Derek D. Rollins, shackglfordMelton & McKinley, 3333 Lee
Parkway,Tenth Floor, Dallas,Texas752l

s Estee

36
 RESPONDENTS'SUPPLEMENTAL MANDAMUS RECORD AND APPENDIX

Tab Description

Certification

1. Affidavit of Deborah Watkins

2. City Secretarymemorandumand certification

3. Excerptof web-pageof the Kirkwood Temple

4. Excerpt of the web-pageof the Lifeway Church

5. TBx.Alco Bsv.Coos9 251.73

6. AttorneyGeneral
OpinionM-355

7. AttorneyGeneralOpinionDM-44

8. Excerptof the TexasSecretaryof Stateweb-page

re localoptionelections
 CERTIFICATION

STATE OF TEXAS $
s
COUNTY OFDALLAS $

Beforeme, the undersignedauthority,on this day personallyappearedCHARLES

ESTEE, the person whose name is subscribedbelow and who, on his oath and basedon

personal knowledge, stated that the items contained in the attached Supplemental

Mandamus Record/Appendix for this mandamusproceeding, Exhibits 1-8, are originals

or true and correct copies of the originals docu

CHARLESESTEE

Given under my hand and offi of office,hi, &^y of July, 2010.

L. ANDRIES
I]EBORAH
Publlc
Notary NoreRy PusI-rcIN ANDFon THs Srnrp OpTexas
05'
E)Qlree
tvlyComm.
Tab 1
 No. 05-10-00805-CV

IN THE COURTOF APPEALS

FORTHE FIFTH JUDICIAL DISTRICTOF TEXAS
AT DALLAS

IN RE MARCUSWOOD,THE KIRKWOODTEMPLE,
THE AFRICAN-AMERICANPASTORSCOALITION,
THE INTERDENOMINATIONALMINISTERIALALLIANCE OF DALLAS,
THE MT. TABORBAPTISTCHURCHAND THE LIFEWAY CHURCH

AFFIDAVIT OF DEBORAH WATKINS

STATEOF TEXAS $
$
COUNTYOF DALLAS $
BEFORE ME, the undersignedauthority, on this day personally appearedDeborah

Watkins, who, being by me first duly swom, deposedand statedas follows:

"My name is DeborahWatkins. I am over 2I yearsof age and have never

been convicted of any felony or crime involving dishonesty or moral
turpitude. I have served in the capacity of City Secretary for the City of
Dallas since March 15,2006. Before that date, I was the Assistant City
Secretaryfor the City of Dallas for approximately 8 years, having held that
positionsinceAugust lI,1999.

I have personal knowledge of all the facts stated herein and they are true
and correct.

The City of Dallas is a home-rulecity locatedin Dallas County, Texas. My

duties as City Secretaryinclude the duty to 'serve as the election official for
all city elections'pursuantto Dallas City CharterchapterIIIA, section3(7).
As part of thoseduties,I personallyand throughmy City Secretary'sOffice

Affidavit of Deborah Watkins Page 1 of3

 (sometimesreferred to as 'CSO') staff certiff the petitions for municipal
elections.

On March 16, 2010, the CSO was presentedwith two applications for
petitions for local option elections. One application was for a petition for
an election whether to legalize the sale of beer and wine for off-premise
consumption and the other was for a petition for an election whether to
Iegalize the sale of mixed beveragesat restaurants. The CSO determined
that each application was in compliance with the applicable requirements
and on March 23,2010 a petition was issuedfor each issue. On May 20,
2010, a petition was filed with the CSO, supported by approximately
109,000 signatures,requesting that a local option election be held on
whether to Iegalize the sale of beer and wine for off-premise consumption.
A petition was also filed at that time with a comparable number of
signatures for a local option election on whether to legalize the sale of
mixed beveragesat restaurants. The next regular sessionon or after the
thirtieth day after the petitionswere filed with the CSo was June23,2010.
The CSO began a statistical sampling of the signaturesfor each petition to
determineif the signers of the petitions were qualified voters of the City of
Dallas.

On or about June 3, 2010, Marcus Wood made a written requestthat all

signatures for the beer and wine petition be verified rather than being
verified by a statisticalsample. On June 8, 2010, I wrote Mr. Wood and
advisedhim of the estimatedcost and told him that such verification would
not begin until receipt of payment. On June 15, 2010, I wrote Mr. Wood
againand advisedhim that the cost would increasebecauseof the shortened
time to completethe verification. On June 15,2010, the CSO receiveda
check from Andy Siegal for a portion of the estimated cost of the total
verification. The CSO proceededwith a verification review of all the
signaturessupporting the petition for the local option election on whether to
Iegalize the sale of beer and wine for off premise consumption. The CSO
continuedwith its statistical sampleof the signaturessupporting the petition
on whether to legalize the local option election for sale of mixed beverages
at restaurants.On June 17, 2010, the CSO received a secondcheck from
Andy Siegal for the remainderof the estimatedcost of the total verif,rcation.

On June23,2010, the CSO completedan initial review of all the signatures

supporting the petition for the local option election for the sale of beer and
wine for off-premise consumption and the statistical sample of signatures
supporting the petition the local option election for the sale of mixed
beveragesin restaurants. The CSo concluded that each petition was
supported by the required number of signatures of qualified voters. I

Affidavit of DeborahWatkins Page2 of3

 certified in writing to the Dallas City Council that each petition contained
signaturesof the required number of qualified voters.

After the receipt of my certification, on June 23, 2010 the Dallas City
Council ordered or called for a local option election on whether to Iegalize
the sale of beer and wine for off-premise consumption and for a local
option election on whether to legalize the sale of mixed beverages in
restaurants. On July, 15,2010,I certified to the Dallas City Council the
total number of qualified voters signing the petition for a local option
election on whether to legalize the sale of beer and wine for off premise
consumption. A true and correct copy of the notice is attachedas Exhibit 2.

Further Affiant SavethNot."

RAH WATKINS

SUBSCRIBEDAND SWORN TO BEFOREME on July 16, 2010,to certify

which witness mv hand and seal of offi

NoreRy Pueuc IN ANDFoRTHESrere oF TEXAS

Affidavit of DeborahWatkins Page3 of3

Ta
 CITYOF DALLAS
Memorandum
July 16,2010

ro: HONORABLEMAYORAND
MEMBERS OF'THE CITY COUNCIL

SUBJECT:
FINAL REVIEW. PETITION FOR LEGAL SALE OF BEER AND WINE FOR
OF'F.PREMISECONSUMPTIONONLY

On June 23,2010, pursuantto Section 501.031,501.032 and 501.033 of the Texas

Election Code (TEC), I confirmed by resolution(10-170S)a petition to legalize "the sale
of beer and wine for off-premise consumption only" was signed by at least 35 percent of
the qualified voters in the City of Dallas who voted in the most recent gubematorial
election on any other ballot issue. A certification was included to confirm the required
number of qualified voters in the political subdivision signing the petition was sufficient.

In accordancewith the normal practice of the City Secretary's Office, a review of the
petition confirms there were approximately 109,000 individuals who signed the petition
and 69,702 were confirmed as qualified voters of the City of Dallas.

If you need fuither information, pleaselet me know.

Deborah Watkins
City Secretary

C: Mary K. Suhm, City Manager

Thomas P. Perkins, Jr., City Attorney
Rosa A. Rios, Assistant City Secretary
Michelle Calloway, ElectionsManager

"DallaE,The City ThatWorks:Diverse,Vibrantand Progressive."

 City of Dallas

STATE OF TEXAS

COUNTY OF'DALLAS

CITY OF DALLAS

I, Deborah Watkins, City Secretaryof the City of Dallas, Texas have duly examined the
attached petition entitled "the legal sale of beer and wine for o{f-premise consumption
only" filed with my office under Section 501.032 of the Texas Election Code. The
afbrementioned section of the Texas Election Code requires the petition to contain 35
percent of the qualified voters in the political subdivision who voted in the most recent
gubernatorialelection for an election on any other ballot issue.

The petition when filed contained approximately 109,000signatures. In accordancewith

Section 501.031 of the Texas Election Code, after a review of the signatures,69,702
qualified voters signed the petition.

I do hereby certiry a minimum of 35 percent of the qualified voters of the City of Dallas
signedthe petition.

WITNESS MY HAND AND SEAL OF THE CITY OF DALLAS. TEXAS. this the 15th
day of JULY,2010.

DEBORAH WATKINS
CITY SECRETARY
CITY OF DALLAS. TEXAS

OFFICEOFTHEClrYSECRETARY
CITYHALL OALIAS,TEXASTszolTELEPHONE214I87O-5I38
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*';*f5r iir*.i *r"i**i*;.'*i li:* rl:ijf *r::j i i:iil:*f l **r';,ic*t.

Sr.rxdcgl
"Sc&ssi& S'elr,$fer$berSrlsffitstrion;
* S*::*sy s S :ii .*,l,rl

:lfjd-14.'?e&
Br:&Xe
$faidp;
*'t+'+"*******gl,i**:r
* i.laednrn*nyl:il* Fi,rl

jlfid- 'l.'ee$Pl'agrer SerL'ic*:

* iii';is*$*.$*ii5. S:** Pl't * ?."r.f: Ff-l
Tab 4
qry
Tab 5
Westlaw
Page l

V.T.C.A., Alcoholic BeverageCode $ 251.73

CEffective: [See Text Amendments]

Vernon's Texas Statutesand Codes Annotated Cunentness

Alcoholic BeverageCode (Refs & Annos)
Title 6. Local Option Elections (Refs & Annos)
1f, Chapter251. l,ocal Option Status(Refs & Annos)
REg SubchapterD. Miscellaneous Local Option Provisions

.+ $ 251.73. Prevailing Status: Resolution of Conflicts

To insure that each voter has the maximum possible control over the statusof the sale of alcoholic beveragesin the
area where he resides:

( I ) the status that resulted from or is the result of a duly called election for an incorporated city or town prevails
againstthe statusthat resulted from or is the result of a duly called election in a justice precinct or county in which
the incorporatedcity or town, or any part of it is contained; and

(2) the $tatusthat resulted or is the result of a duly called election for ajustice precinct prevails against the status
that resulted from or is the result of a duly called election in an incorporated city or town in which the justice pre-
cinct is wholly contained or in a county in which the justice precinct is located.

CREDIT(S)

Acts 1977,65th Leg., p. 555, ch. 194, $ I, eff. Sept. l, 1977.

HISTORICAL AND STATTITORY NOTES

2007 Main Volume

Prior Laws:
Acts 1935, 4r'ithLeg.,2ndC.S., p. 1795, ch. 467, art. 1, $ 32.
Acts 1943,48th Leg., p. 509, ch. 325, $ 7.
A c t s 1 9 5 3 ,5 3 r dL e g . ,p . U 3 , c h . 2 4 9 , 92 .
Acts 1955,54thLeg., p. 484, ch. 138,$ l.
Acts 1963,58thLeg., p. 1196,ch. 478, $ l.
Acts 1967,60th Leg., p. 1927, ch. 723, S 7 l.
Acts 1973,63rd Leg.,p. 508, ch.2l9, S 2.

Vernon's Ann.P.C. (1925\ art. 666-32.

V. T. C. A., Alcoholic BeverageCode $ 251.73,TX AL BEV $ 251.73

Current through the end of the 2009 Regular and First Called Sessions
ofthe 81st Lesislature

O 2010 ThomsonReuters.No Claim to Orie. US Gov. Works.

Tab 6
 Tsp Amcrl<NrtY GlrrvrrRAr,
(tF TExas
Aurrrrrv, Tsxas 7$7ll
|l ;1AA\4'rfoRlE (1. !!Arl'fM
;rfr{}rlNEY loltlJDBAL

January 27, 1969.

Ilon. Charles A. Allen Opini.on No. M-335

Criminal District Attorney
Harrison CountY Re: SaIe or disPensinq
P. O. Box 776 of alcoholic beverages
Marshall, Texas in CitY of Marshall
involving annexed
dry area, and re-
Dear Mr. Alfen: lated guestions.

your oplnion reguest asks our opinion concerning the

capti;;;a fire"irles. The factual matters presentea 1n sub-
stince are not in dispute and are hereinafter related'

On ltay 12, 1966' an area waE annexed to the City of

ttarshall, itarrison County' Texas, which Clty Yasr-at-the
time of annexation, a we[ area for the sale of all' alcoholic
beverages for off-premises consumption'

subsequent to such annexation and on october 8, 1966,

Marshall
an electiori was held by the voters of the then City of
irtO-tn" following queslioDer either in substance or !n fact'
vrere presented:
A. For or agalnst the sale of all alcoholic beveragesr
on premises consumPtion.

B. For or against the legal sale of all alcoholic

beverages, otf premises consumption'
against Pro-
The vorers of the city of !!ar9ha11 voted 'rBrr
posltion rtArr above and voted for proposition above.

Yourinquiriesappeartobedlvldedinto(3)separate
categorles, to-wit:
(r) Is the aqnexed area a wet area for the legal sale of
art aico-FiFmages for off-premises consunption?

(21 Can a Person oPerate a liquor store in such annexed

area?

- t649 -
llon. Charles A. AIIen' Iage 2 (l{-33 5 )

( 3 ) C a n a person operate a private club under the "pool"

system in the annexed area?

Your office has advi.secl that there is no question con-

cerning the validity or legality of the local option election.

It has been held by our state courts that when a local

option election has been hetd ln a certain area, which area
voted "dryr" and that area was subsequently annexed to a city
that is "wetr" then the annexed area remains "dry" until the
gualified voters of the annexed area decide otherwise in an
e l e c t l o n h e l d f o r t h a t p u r p- 5o7s 7
e. Ilarvthorne v. Texas Liquor
Control Board, 113 S,hr.2d (fe ;
iioucFffiFffirainos, 130 Tex.4l3, LIO s.I.I.2d 549 (1937).
ffieen these cases last cited and your situ-
ation is that there was a local option election after the
annexation.

Since the gualified voters in the annexed area participated

in the local option election subsequent to its annexation, the
latest expression of the entire populace of the City of Mar-
shall is for the saLe of all alcoholic beverqges for off-
premises consumption only. This tvould mean that the entire
city l i m i t s o f t h e C i t y o f l t larshall as it existed on october
8, 1966, is a "hret" area for the sale of qll alcoholic bever-
ages for off-prernises consumption only. E?; Povel.l v. Smith,
el aI., 90 S.w.2d g4g (Tex.Civ.App. fbgO, no wffi
It ls the opinion of this office that the annexed area
to the City of l4arshall is a "$tet" area for the sale of all
alcohollc beverages for off-premLses eonsumption only, and
the fLrst question should therefore be answered in the affinn-
ative.
Under Article I' Section 15 (8) of the Texas Liquor Con-
trol Act ( A r t l c l e 666, v.P..C.), a person would be authorized
to secure a Package Store Permit to sell and dispense the
intoxicating beverage so Listed under Subsections (b) through
(d) for off-premises consumption only' Since the annexed area
is a "wet" area, then such person could secure a Package Store
Permlt for such annexed area.

It Is also our opinion that the second question should

be answered in the affirmative.
Artlcle l , S e c t i o n 1 5 ( e ) o f t h e T e x a s Liquor Control
Act (Article 665-15 (e) , V. P.C. ) ls known as the "Prlvate CIub

- 1650-
Ilon. Charles A. Allen, Page 3 (M-335)

Act." Sectlon I-l (b) defines a "Locker System" and an un-

certainty ls said to arlse in the statute because no mention
is contained therein concerning whether such method of dis-
pensing alcohol.ic beverage is confLned to a "wet" or udry"
area. section I-L (c) Provides as follows:

" (c) 'PooI system' shall mean that system of

llquor storage where al.l nembers of the pool Parti-
cipate egually in the purchase of all alcoholic
beverages and the replacement of all alcoholic bever-
ages is paid for by moneys assessed and collected in
advance from each rnember equally. S_gch poe! _gIg1!em
shaii ire iesai oniy in an area ;h:.cm

we are advised by the Texas Liguor Control Board that a

p r i v a t e c l u b m a y b e i s s u e d a P r i v a t e C l u b R e g l s t r a t i o n Per-
mit in an area that has been voted "wet" for the sale o f
a l l a l c o h o l i c b e v e r a g e s f o r o f f - p r e m i s e s c o n s u m p t i o n . The
rexas Liguor Control Board is charged with the duty and res-
Texas
ponslbility by the Legislature with adninistering and en-
forcing the Bexas Liguor Control Act. Although our courts
are not bound by a department or adminlstrative construction,
such construction placed on a statute by a department or
adminlstrative body wiII ordinarily be adopted and upheld.
Armco Steel Corporation v. Texas Ernplotrment Commission, 386
SlF7ia-e is is
particularly true when it is necessary to resolve any doubt
or uneertainty in the statute. Texas EnpI rg' fnsurance
Assoclatlon v. Ho1mes, I45 Tex.

Ffhile we have been referred to no rule, regulation or

directive of the Texas Liguor Control Board placing such con-
structlon on the underscored portion of Article l, Section
15 (e)-1 (c) of the Texas Liguor Control Actr we are never-
theless advised that this adrninistrative construction has
been consl.stently followed for a numbe4 of years and the
'that policy,
Legislature, with presumed knowledge 'of has
not seen fit to change it by statutory amendrnent in subse-
quent legrislatLve sessions. Therefore it ts the opinion of
this office that a person would be authorized, upon obtaining
a permlt, to operate a private club under the "pool" syatem
within the corporate city Limits of the City of Marshall, whlch
includes the annexed area, as the limits existed in the

- r 6 5 t-
IIon. Charles A. Allen, Page 4 (M-335)

october 8, 1966, election' It follows that we must ansvter

the third question in the a f f l r m ative.

SUMMARY

When an area is annexed to a cityr

which city is wet for the sale of all alco-
holic bevlrages for off-premises consumption,
and there is, subsequently, a legal local
option election, which includes the annexed
aiea, vrherein the voters aPprove the sale
of alL l-ntoxlcating beverages for off-premises
consumption, then the entlre city, including
the annexed area, is wet for the sale of all
intoxlcating beverages for off-premises con-
sumption.

A person may operate a package store in

an area annexed to a city under the foregoing
facts.

A person may dispense intoxicating

beveragLs in a pilvate club under the "pool"
system in an area as descrlbed above and
when such area has legally voted l"n a local
option election for the sale of all intoxi-
citing beverages for off-premises consumption
onIy.
truly yours '

6Wa
[FORD C. I{ARTIN
orney General of Texas

Prepared bY O. JaY PloYd

Assistant AttorneY General

APPROVI1D:

OPTNION COMMTTTEE
Kerns laYlor, Chairman
George Kelton, Vice Chairman
Monroe Clayton
Lonny Zwlener
Larry Craddock
I.l. o. shultz

vl. V. GePPert
STAFF LEGAL ASSISTANT
- L652-
Ta
 @fticrof tlle AttorneyGenrral
Ststa of @exEg

DAN MORALES
AIIORNSY GINEIAL
September19,1991

HonorableBiUG. Carter Opinion No. DM- '{4

Cbairman
Committeeon hrblic Safety
TcxasHouseof R.cprcscntativcs
P.O.Box2910
Austin,Tcxas 787ffi-2910
Re: Whether county comnissioners
havc the authority to set boundariesfor
wet/dry elestions and other related
questionsGa-89)

Dear Represcntative
Caner:

You ask three questions regarding local option liquor clections. Such
elections are hcld pursuantto article X\II, section20, of the TexasConstitution and
chapter 251 of the Alcoholic BeverageCode. We will consider each question in
turn:

1. Do county commissionershave thc legal authority to set

boundaricsfor wet/dry electioru?

Article XW section2O of the TexasCortstitutiondirecs the legislatureto

adopt statutesto providc for local option electionsto legalizeor prohibit the saleof
alcoholicbeverages This corutitutionalprovision is codified in chapter251 of the
Alcoholic BeverageCode. Iocal option liquor electionsmay only be called when
the commissionerscourt receivesa valid petition. Alco. Bev. Code $$ 5L01,
251.11. The commisioners court must call an election when it rcceives such a
petition. Id The countyclcrk must provide a petition to qualified votersunder the
following circumstances:

If 10 or more qualified voters of any county, justice

precincgor incorporatedcity or town tilc 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 nrbdivision

p. 22L
HonorableBiUG. Carter-Page? (D!,!-44)

Alco. Bev. Code$ 251.03(emphasisadded).

The political subdivision for which the election must be called is thus
determinedby the p€tition. The political subdivisionsfor which electionsmay be
callcd are limited by both tbe constitution and by statute to counties, justice of the
peaceprecincts,and incorporated cities and towns. Tex. Const. art. XVI, $ 20; Alco.
Ben Code $$ 251.01,751.A2;seealso Attorney General Opinions IM-1177 (1990);
JM468 (1986) and authorities cited therein. These political subdivisionswill
slrlinarily havefrxedboundariesthatwill determinethe areain which the electionis
held.

The only instancein which a commissioners court is authorizedby statuteto

exercisediscretion in setting the boundariesfor a local option liquor election is
describedin section251.80of the Alcoholic BeverageCode. Subsection(a) of that
sectionstates:

Whenever a local option status is once legally put into

effect as the result of the vote in a justice precinct,suchstatus
shall remain in effectuntil the statusis changedas thc result of
a vote in the sameterritory that comprisedthe precinct when
such status w:ls established. If the boundariesof the jwtice
precirct hwe changed since sch status was establislted,the
commissionencourt shall"for pryoses of a local option electiorl
d$ne ttrc botndaries of the onginal precinct. A local option
election may be held within the territory defined by the
comrnissionerscourt as constituting such original precinct.
(Emphasisadded.)

This provision requires an election attempting to change the local opdon

stan$ of a justiceprecinctto be conducted,.notin the precinct as it exiss at the time
of the petition for the election, but in the territory that comprised the justice
precinctwhen the local option statuswasestablished.r

ln Cot<crv. Tqas Alcohotic BarcrageComm'n,524 S.W.2d 570 (Tex. Civ.

lny its tcrns scction 251.80of thc Alcoholic Bevcragc Code applies only to justicc precincts.
Cbangcsof local option status in incorporatcd cities and toms rcmains governed by section 251.72.

p. 222
HonorableBill G. Carter- Page3 (DM-44)

App.-Dallas 1975,unit refd n.r.e.),the court of appealsconsidereda sinration in

which the exact boundariesof a former justice precinct could not be determined.
The court hel4 in part:

fflhe aomnissioners' court has rcsponsibility to call the

clection, and we see no reasotr why it could not protect all
interested personsby drawing a line approximatingthe original
boundaries. Its determination of the boundarieswould not be
exercisedunder its gcncral power to frx precinct boundaries,
but would be an administrativedeterminationincidental to its
power to order an election,.andwould control unlessclearly
erroneousor arbitrary.

524S.W.2dat 579.

We believe the intent of the legislaturein enactingthe emphasizedlanguage

wasto permit thc commissionerscourt to resolvesituationsin which, due to lost or
aurbiguousrecords or other reasons,it is not possibleto establishdefinitively the
boundaryof a former justiceprecinct. In cffect,the languagecodificsthe holding of
Colcerwith respect to situationswhere the boundary of a former justice precinct
cannot be determined. Accordingly,we believe that discretion exercisedunder
section251.80may not be arbitrary. A boundaryset by the commissionerscourt
under section 251.80must rts nearly as posible conform to the boundary of the
former precinct for which the petition requires the election be held. Where the
.boundariesof the former justice of thc peaceprecinct are clearly defined by public
records,the county commissionershave no discretion to define the boundaries
differentlyfor purposcsof a local option election.

L If an area is orrrently designated dry by municipal

ordinance,can a cornmissioners court require residentsin this
area to participatein a wet/dry election?

As noted above, the political subdivisionin which a local option liquor

electionis to be held is determinedby the petition that both authorizesand requires
the cornmissionerscourt to call the election. In Patton v. TexasLiqnr Control Bd,
293 S.W.2d99 (Tex. Civ. App--Austin 1956,writ refd n.r.e.),the court considereda
sinrationin which a local option electionhad been held in only that part of a justice

p. 223
HonorableBiUG. Carter-Page4 (DI.{-44 )

precinct lying outside the colporate limits of a city. The court hetd that there was no
constitutional or statutory authority for holding a local option election in only part
of a jutice precinct:

Vi/e believe that since the Constitution and statutes limit

local option elections to counties, justice's precincts and
incorporatedcities 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
liquorswithin suchportion of the preciuctillegal.

We must also bear in mind that if five voting boxescan be

thus converted into a local option district despite the
Constitutionthen there is no logicalreasonwhy a smallerare4
. one lot for instance,could not be so created and, perhapsof
greater importance,if a non-corutitutionalarca can be made
dryby suchprocedurethcn it could by the sametoken be made
wetW suchprocedure.

293S.W.2dat 101-02.(emphasisin original).

Accordingly,only those political subdivisionsenumeratedin the constitution

and statutesmay exerciselocal option through the electoral processprescribedby
chaptcrEl of.the Alcoholic BeverageCode,and suchelectionsmust be held in the
entire Political subdivisionfor which the election is called. No provision of the
Alcoholic BcverageCode authorizesthe disfranchisementof voters in any portion
of a city that is within the political subdivisionfor which the election is to be held.
Whether a municipalityhasprohibited the saleof an alcoholic beveragein 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,AIco. Bev. Code Sg 109.31,109.32,
theseprovisionsare distinct from the exerciscof local option by election and do not
serveto changethe local option statusadoptedby a political subdivisionpursuantto
chapter251,nor to inhibit the adoptionof new local option statusby the voters. /d.
$$ 25151,251.72.

p. 224
Ilonorable Bill G. Carter - Page5 (DM-44)

3. What agency or agencies are legally responsible for

enforcing changesin wet/dry elections?

We take your qricstion to ask what agency is responsible for enforcing

changesin local option status made pursuant to chapter 251 of the Alcoholic
Bcverage Code. The Alcoholic Bevcrage Cornmissionis charged generally with
regulating everyphasc of thc alcoholic beverageindustry in Texas. Alco. Bev. Code
$ 531. Of course,stateand local police agenciesmay enforcestatelawswithin their
respectivejurisdictions. However,certaitrother offrcialsare given specificduties in
oerti$ing the result of a local option electioir.

Section 251.51directsthe commissionerscourt to canvassthe returns of a

local option election and to declare the result Upon a majority vote in favor of
legalizatio& the tlpes of alcoholic beverageslegalized may be sold once the
commissionerscourt enters an order declaringthe result. Id. A vote prohibiting
salqof alcoholicbeveragesis effective30 daysafter the commissionerscourt order
is entered. /d If the result prohibits the saleof any alcoholicbeverages,it must be
posted. Id g 251.54.Regardlessof outcome,the result is certified to the Alcoholic
BeverageCommissionand the secretaryof stateby the county clerk. /d. $ 251.53.
When an applicationis madefor a licenseor permit to sell alcohol,the countyclerk
must certi$ whethera particular location is \rret' or "dry.nId. I 11.31.2

SUM,MABY

A commissione$ court is authorizedto set the boundaries

for a local option liquor election only in the circumstances
prescribedin section 251.80of the Alcoholic BeverageCode.
A boundary set by the commissioncrscourt under this
provision must as nearly as possibleconform to the boundary
of the former justice of the peace precinct for which the
petition requiresan electionbe held. Where the boundariesof
thc former justice of the peaceprecinct are clearly defined by
public records,the countycommissionershaveno discretionto

2ttis proccdurc of certification as to wet or dry statusis summarizedby the court in Sel/sv.
Roasq769S.W2d 64t,641(Ter App.--Austin1989,no writ).

p. 225
HonorableBill G. Carter- Page6 (DM-44)

define the boundariesdifferently for purposesof a local option

election.

Only those political subdivisions enumeratcd in the

constitutiou and statutesmay exerciselocal option througb the
electoral processprescribed by chapter 251 of the Alcoholic
BcverageCodc, and such elections must be held in the entirc
political zubdivision for which thc election is called. No
provision of the Alcoholic Beverage Code authorizes the
disfranchisementof voters in a portion of a city that is within
the political subdiviSionfor whicb the electionis to be held.

Verytrulyyours, I

D^ /4,*L
DAN MORALES
AttorucyGeneralof Texas

WILLPRYOR
FirstAssistant
AttorneyGeneral

MARY KELLER
Executive AttorneyGeneral
Assistant

ruDGE Z;OLI.JESTEAKLEY(Ret.)
SpeciatAssistantAttonreyGeneral

RENEAHICKS
SpecialAssistantAttorneyGeneral

MADELEINE B. JOIINSON
Chair,OpinionCommitee

heparedbyJohnSteiner
AssistantAttorneyGeneral

p. 226
Tab 8
LocalOptionLiquorElections- Questionsand AnswerE
Thisoutlinesummarizes Texaslocaloptionliquorelectionlawas currentlycodified.We havemadeeveryeffot'tto insure
for the statutorysourcematerialand relevant
the accuracyof thissummaryoutline,but thismaterialcannotsubstitute
baselawandadministrative
interpretive regulations. are to the TexasElectionCodeunlessotherwisenoted.
All references

Chapter501,TexasElectionCode;andChapter251,TexasAlcoholic
ArticleXVl,Section20 of the TexasConstitution;
andpublicpolicyreasons,the procedures
BeverageCodeare specificto localoptionliquorelections.Forhistorical for
theseeiectionsdifferin manyrespectsfromthe procedures Youshouldnot
elections.
appliedto othervoter-initiated
extrapolateor applythe proceduresexplainedhereto any othertypeof petition-driven
election.

L Overviewof Texaslawsrelatingto the saleor prohibition

of liquor

AlthoughTexaslawscontrolling the saleof liquordatebackto the foundingof the Republicfollowingindependence

fromMexico,localoptionlaw in its currentformhasbeenlargelyunchanged sinceArticleXVl,Section20 of the
Constitutionwasadoptedin 1891. The localoptionlawallowedcounties,justiceof the peaceprecinctsandcitiesto
adopta "dry"status.The blanketprohibition of all alcoholsalesunderstate(andthenthe federalProhibition lawalong
withthe stateprohibition
on the manufacture of alcohol)merelyinterrupted of the olderlocaloption
the application
liquorlawbetweenFebruary 1918andAugust1935.

As to the defaultstatusof territoryin Texaswith respectto the legalsaleof alcohol,the TexasSupremeCourtnoted:

liquorsibutwithcedainexceptions
[T]heentirestate,as such,is ... wetas to all intoxicating and
In effect,[ArticleXVl,S 20,TexasConstitution]
limitations. containsprovisionswhichmakeanycounty,
justice'sprecinct,or city,or towndrywhichwasdry at the timeit becameeffective.In otherwords,this
amendment preserves the statusquoas to dry areasas theyexistedat the timeit becameeffective.lt
thereforepreservedas dry anycounty,justice'sprecinct,or city,or townwhichwasdrywhenit wentinto
effect.Of course,anysuchareahasthe rightto becomewet by so votingat an electionlegallyordered
and heldfor thatpurposeunderpresentlocaloptionstatutes.

S.W.2d549,553(Tex.1937)(emphasis
v. Plainos,110
Houchins added).

Notwithstandingthe underlyingwet statusof the state,a majorityof Texascountieswereeitherentirelyor partiallydry

as
afterProhibition, theyhad previouslyadopteda"dry"status.Thisfacthascausedsomeconfusionoverthe years
by leadingpeopleto erroneouslybelievethatthe defaultstatusof all territories noted.
in Texasis dry unlessothenarise

Counties,cities,andjusticeof the peaceprecinctsarewet exceptwherethevotershaveprohibited the saleof liquor.

However,at onetimeor another,the votersin almosteverycountyin the statehaveadoptedat leastsomelocal
on alcoholsales.Evenin the absenceof localoptionelections,
restriction somejurisdictionsand partsof jurisdictions
actionin theformof specialand localprohibitory
are dry as the resultof pre-189'tlegislative actsthatwereratified
and preserued was adopted.
in effectwhenArticleXVIS 20 of the stateconstitution

A. TABCresources

Witha recentwebsiteredesign,theTexasAlcoholicBeverageCommission ("TABC)hasdramatically

expandedthe amountof historicaldataavailableonlineto helpdeterminethecurrentlegalstatusof anyterritory
in the Stateof Texas.Thewebsite(at http://www.tabc.state.tx.us/)
nowincludesthe resultsof everyreported
localoptionelectionconductedbetween1939and2008in the Stateof Texas,as wellas a mapshowingthewet
or dry statusof everypartof the state(currentas of November
2008).Thecontactinformationfor the TABCis:

TexasAlcoholicBeverageCommission
P.O.Box13127
Austin.Texas78711-3127
512-206-3333

information
B. Historical

Manyof the countywide electionsoccurredpriorto the creationof the statutorypredecessor

prohibition to the
TABCin 1935,andTABCdoesnot maintainrecordsfor thoseelections(localoptionliquorelectionsconducted
 priorto November16, 1935).NordoesTABCmaintainrecordsof prohibitory actsenactedpriorto the
legislative
1891constitutional
amendment localoptionelections.
authorizing

Nevertheless, reportsof weUdrystatusmadeby the TexasLiquorControlBoard(nowthe TABC)havegenerally

cities,J.P.precincts,
identified andcountiesthatwereeitherwhollyor partiallywet or drywhenstateprohibition
wasrepealed in 1935.WhiletheTABCdoesn'tguarantee of thismaterial,
theaccuracy theDecember 31, 1939
annualrepoft(available as a .pdffileon the TABCwebsite)goesa longwaytowardresolving the pre-
ProhibitionErastatusof a particular territoryas wet or dry.

Recordsof all pre-Prohibition

localoptionliquorelectionsshouldbe in the countyelectionregisterfor your
county,butthatsourcecan sometimes be incompleteor lost.Reviewsof old newspapers or historicalarchives
can sometimespinpointthe dateandoutcomeof a localoptionelection,butwillnotconstitute officialproofof
statusunlessacceptedas suchby a courtof law.
theterritorial

Withrespectto pre-1891legalcontrolson the saleof alcohol,the indexto Gammel'sLawof Texasis the

primarysource.The University of NorthTexashasorganizedthismaterialonline(at
rary=un!-edullawssftexa ldetaulfitm ).
http1ltexinto.!rb

ll. Political
subdivisionsin whichlocaloptionelections
occur.
A. Whatpoliticalsubdivisionsqualifyto exercise
localoption?lSecs.501.021. 501.0211. 501.1091.
1. Counties.
2. Justiceof the peaceprecincts,and
3. Municipalities
B. Mava localoptionliquorelectionbe heldin onlypartof a justiceprecinctwhichis partwet andpartdry?

No.See Pattonv. TexasLiquorControlBoard,293S.W.2d99 (Tex.Civ.App.--Austin

1956,writ ref'dn.r.e.).

C. lf a iusticeprecinctestablishes
a localoptionliquorstatusand its boundariessubsequently havechanged.must
an electionto changethe statusof the areaencompassed by the formerjusticeprecinct'sboundaries
be heldin
thatarea?[Sec.251.80.TexasAlcoholicBeverageCode].

Yes.Sec.251.80of the TexasAlcoholicBeverageCodestatesthat:

Whenevera localoptionstatusis oncelegallyput intoeffectas the resultof the votein a iustice

precinct,suchstatusshallremainin effectuntilthe statusis changedas the resultof a votein the
sameterritorythatcomprisedthe liusticelprecinctwhensuchstatuswasestablished. lf the
boundaries of thejusticeprecincthavechangedsincesuchstatuswasestablished, the
commissioners courtshall,for purposesof a localoptionelection,definethe boundaries of the
originalprecinct.. . . (Emphasisadded.)

TheAttorneyGeneralhasopinedthat:

Section251.80of the TexasAlcoholicBeverageCodedoesnotviolatethe requirement of article

XVl,section20(b),of the TexasConstitution thatlocaloptionliquorelectionsbe heldin certain
authorizedvotingunits.Section251.80of theAlcoholicBeverageCodeis not inconsistent withother
provisionsof thatcode.Attorney General'sOpinionH-515(1975)[holding thatan election to change
the localoptionstatusof a justiceprecinctwhoseboundaries havebeenchangedis to be heldin the
newly-formed andcurrentlyexistingprecinctlis overruled.

Op.Tex.Att'yGen.JM-1177(1990),at 5.

Section251.80of theTexasAlcoholicBeverageCodeis constitutional and doesnotconflictwiththe language

in AdicleXVl,Section20(b)of the TexasConstitution. Whenjusticeprecinctboundaries havechanged,the only
of the old partsof thejusticeprecinctmaybe
way in whichthe priorwet or dry status,if alreadyestablished,
changedis to holda localoptionelectionin a territorylargeenoughto encompass the territorythatcomprised
thejusticeprecinctwhenthe localoptionstatuswas established.

Op.Tex.Att'yGen.JM-1177furtherstates,"Wethinkit is important to pointoutthatthisopiniondoesnot

considerwhetheranyotherstatutorysystemthatthe legislature mayadoptin the futurewouldnecessarily run
provision. . . . [T]helegislature's
afoulof the constitutional authorityto prescribea statutoryframework
for local
optionelectionsis broad."ld.

D. Canan electionbe heldin a justiceprecinctas it is currentlyconstituted?

Yes,providedthatneitherthejusticeprecinct,norany porlionof thejusticeprecinct,haspreviously

adopteda
 localoptionliquorstatusin an electionbasedon differentboundarylines.

Oneof the mostvexingissuescreatedby localoptionliquorlaws(andspecifically by Section251.80of the

of abolishedpoliticalboundarylinesfor
AlcoholicBeverageCode)resultsfromthe artificial"resurrection"
purposesof localoptionelections.Forexample,the TexasSupremeCourthas ruledthatwherea prohibition
electiontookplacein a subsequentlyabolished J.P.precinct,any legalization
electionwithinthatterritorywould
haveto be conducted precinct,andthe signatures
withinthe boundarylinesof the non-existent on the petitionto
cafl the electionwouldalsohaveto be collectedfromthatothenrrisenon-existentterritory.ln re Davis,269
S.W.3d581(Tex.2008).

E. Whatif no maps.plans.commissioners courtminutes.or metesandboundsof the formerjusticeprecinctare

available?Howcan an electionbe heldin sucha non-specific
location?

TheCommissioners Courtmustmakean administrative of boundarylinesfor theconductof the

determination
to its powerto orderan election,andthe chosenboundarywouldcontrolunlessclearly
electionincidental
erroneousor arbitrary.

lf no definitivelinesof the formerjusticeprecinctare available,

theycan be established
by thecommissioners
courtfor the election.[Sec.251.80(a), TexasAlcoholicBeverageCode]

be in existencebeforeit qualifiesto exerciselocaloption?[Sec.501.0221

F . Howlongmusta politicalsubdivision

A politicalsubdivisionmusthavebeenin existence at least18 monthsbeforeholdinga localoptionelectionto

legalizeor prohibitthe saleof liquor.The politicalsubdivision
mustincludesubstantiallyall thearea
encompassed by the subdivision at timeof its creationand mayincludeanyotherareasubsequently legally
annexedby or addedto the politicalsubdivision.

for a localoptionpetitionis filed.is that

G . lf a cityis in the processof annexingterritoryat the timean application
territoryincludedin the election?

affectedby the localoptionelectionare the boundaries

The boundaries of thecityon the datethe application
Any subsequently-annexed
was submitted. territorywouldnotbe impactedby thatpetitionor the resulting
election.

Whydoesmunicipal causea problemin administering

annexation localoptionliquorlaws.andwhataboutH.B.
1034?

Somecitieshaveexperienced a numberof hotlycontestedand potentially and prohibition

confusinglegalization
electionsin the lastfewyears,especially
wheremunicipalannexation is concerned.

In somecases,a cityhasbeenthe siteof a successful electionat somepointin its history,and has

legalization
subsequentlyannexedterritorylyingwithina "dry"J.P.precinct.As a consequence, the smallannexation
"dry"territory,eventhoughit is includedin the enlargedboundaries
constitutes of the "wet'city.

Morethanonce,membersof a citygovernment haveattemptedto regulateor legalizealcoholsalesin an

annexedterritory,onlyto discoverthattheylackthe authorityto do so. The preservation
or repealof the status
of a "dry"sliverof landmaybecomethe focusof a heatedpoliticalbattle,as legalization
wouldrequirethatthe
entire"dry"J.P.precinctwouldhaveto be made"wet."

S.B.1034,81stLeg.R.S.2009createsan extraordinary remedyby authorizing a citygovernment to ordercity-

widelegalization electionsby meansof a municipalresolution withoutrequiringany petitionfor suchan election.
"witha population
The law is limitedsolelyto municipalities of at least112,000locatedin a countywitha
population not morethan135,000," (thebracketlimitsthe law'seffectto the Cityof Abilene)andwillexpirein
2015.Unlikemostlocaloption elections,anysuchmunicipally-ordered election
wouldbe conducted entirely
at
the city'sexpense.

Cana legalizationelectionbe heldin an areawheresomealcoholcan alreadybe legallysold?Similarly.

can a
prohibition
electionbe heldin an areawheresomealcoholis alreadyprohibited
fromsale?

Yes.Overtheyears,the statutorypredecessors to Section501.035hadcausedsomeconfusionon thispointby

specifying and prohibition
a menuof legalization optionsthatweredependenton the specifictypesof alcohol
salesthatwerealreadylegalor prohibited
in a particular
area.

Forinstance,Section501.035(b)providesthatif anytypeor classification

of alcoholicbeverages
cannotbe
 sold,thenpetitioners maychooseto petitionfor any oneelectionfromthe full menuof optionsfor legalization
elections. if anyformof alcoholic
In contrast, beverage is prohibitedfromsale,Sections501.035(d), 501.035(e),
electionsjustto thoseformsof alcoholicbeverages
and 501.035(f)limitthe issueson futureprohibitory thatcan
legallybe sold.

Althoughthe limitationmakessense(whyholdan electionto prohibitthe saleof alcoholicbeveragesthatare

alreadyprohibited?), electionpetitioners
the clumsystatutorylanguageleftprohibitory confused,and gavethe
impressionthatprohibitory thanlegalization
electionsweremorelimitedor restricted elections.

As of September1, 2009,a newlawprovidesthatas longas someformof alcoholicbeveragesaleis legalin a

area,prohibitory
particular maypetitionfor anyone of the optionsin the full menuof prohibition
petitioners
issues;thelanguage willmorecloselyparallel
in Section501.035(c) the language in Section501.035(b). H.B.
4498,81stLeg.R.S.(2009)repealsSections 501.035(d) through501.035(f), andmakesconforming
amendments to Section501.035(c).

lll. Application
to applyfor a petition?[Sec.501.023(a)]
A. ls it necessary

Yes,in general(butseeSection501.021 1 fora limitedexception to theCityof Abilene).

applicable Beforethe
countyclerkor electionsadministrator can issuea petitionto gathersignatures,the petitionersmustfirstapply
for the petitionand provideproofof publication
in a newspaper of generalcirculationin the politicalsubdivision.

B. Howis an application for a petitionmade?[Secs.501.023, 501.024,501.025]

1. Aoolication: An application for a petitionis madeby writtenapplication by 10 or morequalifiedvotersof
theterritoryto be coveredby the election.A "qualified voter"is a registered voter.The headingand
statementrequiredto be on the application are set out in Sections501.024and501.025.The
requirements for an application shouldnot be confusedwiththe requirements for a petition.The Election
Codesimplyrequires thattheapplication be in writingandbearthesignatures of 10voters.Theadditional
information requiredon a petition(i.e.,address,dateof birth)is not necessary for an application. An
applicationformneednot be suppliedby thecountyclerk,electionsadministrator, or cityor town
secretary. Anyapplication whichcomplieswiththe requirements of eitherSections501.024or 501.025is
sufficient.
Application formsare availablefromprivateprinters;if the politicalsubdivision decidesto supply
themto applicants, thenthe formsare requiredto be bilingualfor the majorityof Texascounties,citiesor
towns.
2. Noticeof Publication: Whenan application for a petitionis filed,the petitioners mustalsoprovideproofof
publication in a newspaper of generalcirculation. Theonlyrequirements thatthe Legislature providedfor
in Chapter501regarding thisnoticeis thatit mustbe published in a newspaper of generalcirculationin
the politicalsubdivision in whichthe petitionswillbe circulated. However,the Secretary of Stateandthe
TexasAlcoholicBeverageCommission recommend thatthe noticeof publication include:
a. The individual or entitythatis applyingfor the petitionto gathersignatures for a localoptionliquor
election;
b. Thetypeof localoptionliquorelection;
c. The nameof the territory(e.9.,county,justiceprecinct,city)in whichthe petitionwillbe circulated;
and
d. The nameof the personandofficein whichthe application will be filed.

NOTE:Thereis no specifiednumberof timesthatthisnoticemustappearin the newspaper;

therefore,
the
noticeonlyhasto be publishedonce.

lV. Petition

Afterthe application
hasbeenapproved, the countyclerk,electionsadministrator,
or cityor townsecretary, as
applicable,willprovideblankpetitionpagesto the petitioners.
TheSecretaryof Stateandthe TexasAlcoholic
BeverageCommission mustbe notified,in writing,by thecountyclerk,electionsadministrator,or citysecretary,
as
applicable,of whenpetitionsto gathersignatures havebeenissuedby the Sthday afterthe issuance.

A. Whatis requiredto be on Leachpage)of the petition?[Secs.501.O27,5O1.028]

Each page must contain:

1. The headingand statement(Sec. 5O1.O27,501.028);

2. The type of liquorelection(Sec.501.035);
3. The pageshave to be seriallynumbered(Sec.501.026);
4. The actualseal of countyclerk (Sec.501.026);and
5. The date the petitionis issuedto petitioners(Sec.501.026).
B. Doesthepetitionhaveto be in Spanish? 501.035,501.109]
[Secs.272.002,
providesthatbilingualmaterialsprintedin EnglishandSpanishshallbe usedin electionsin
Section272.OO2
thisstate.

Sections501.035and 501.109set outthe issuesto be votedon.The petitionmuststateoneandonlyoneof

theseissues.ThefollowingareSpanishtranslationsof theissuessetoutin Sections 501.035and501.109.
Thesetranslations maybe usedin preparingbothpetitionsand ballotsfor electionsin the majorityof Texas'
citiesor towns.
counties,

1. "Thelegalsaleof beerforoff-premise consumption only."

'La ventalegalde ceruezapara consumosolamentefueradel establecimiento."
2. "Thelegalsaleof beer."
"La ventalegalde cerueza."
3. "Thelegalsaleof beerandwinefor off-premise consumption only."
'La ventalegalde ceruezay vinopara consumosolamentefueradel establecimiento."
4. "Thelegalsaleof beerandwine."
"Laventalegalde ceruezay vino."
5. "Thelegalsaleof all alcoholicbeveragesfor off-premise only."
consumption
"Laventalegalde todasbebidasalcoh6licaspara consumosolamentefueradel establecimiento."
6. "Thelegalsaleof all alcoholicbeveragesexceptmixedbeverages."
"Laventalegalde todasbebidasalcoh6licascon exclusi6nde bebidasmixtas."
7. "Thelegalsaleof all alcoholicbeveragesincluding mixedbeverages."
"La ventalegal de todasbebidasalcoh6licasincluyendobebidasmixtas."
8. "Thelegalsaleof mixedbeverages."
"Laventalegalde bebidasmixtas."
9. "Thelegalsaleof mixedbeveragesin restaurants by foodand beveragecertificateholdersonly."
"La ventalegal de bebidasalcohilicas mezcladas(cocteles)en restaurantess6lo por los poseedoresde
un certificadode comidasy bebidas."
10. "Thelegalsaleof wineon thepremises of a holderof a winerypermit."
"Laventalegal de vinoen establecimientos quepertenecena poseedoresde un certificadode vineria."
c. Howmanycopiesof the petitionmustbe supplied?[Sec.501.030]

As manyas requested, butthe county,cityor townis not requiredto providemorethanone pagefor every10
votersin the politicalsubdivision
registered to be coveredby the election.

are neededfor a validlocaloptionliquorpetition?[Sec.501.032]

D . Howmanysignatures

Section501.032providesthatthe numberof requiredsignatures dependson the categoryof localoptionliquor

electionthe petitioners requiredto be on a petitionis equalto or greater
are seeking.The numberof signatures
than:

1. 25 percentof the registered votersin the politicalsubdivision

whovotedin the mostrecentgeneral
election,if the ballotissueinvolvesvotingfor or against"Thelegalsaleof wineon the premisesof a
holderof a winerypermit."
2. 35 percentof the registered votersin the politicalsubdivision
whovotedin the mostrecentgubernatorial
electionfor an electionon anyotherlocaloptionballotissue.
Whodetermines the totalnumberof registered voters?

Thedetermination of the totalnumberof registered votersrequiredfor purposesof calculatingthe numberof

signatures requiredon a localoptionliquorpetitionis madein accordance withthe officialrecordsof thevoter
Althoughthe Codedoesnotprovidea definitionof thecurrentlistof registered
registrar. voters,our office
recommends thatthe currentlistusedfor verifyingsignaturesshouldbe the officiallistwhichexistson the date
thatthe petitionswereissuedto the petitioners.

a validsignature?
F . Whatconstitutes [Sec.501.031'l
1. Fora signatureto be valid,it mustbe accompanied by:
i. the signer'sprintedname;
ii. the signer'sdateof birth;
iii. if the territoryfromwhichsignatures
mustbe obtainedis situatedin morethanonecounty,the
countyof registration;
iv. the signer'sresidenceaddress;and
v. thedateof signing.
2. Thesignature is theonlyrequirement
thatmustbe in thesigner'sownhandwriting.
 AlthoughChapter501 of the ElectionCodedoesnot makeany reference to the newly-enactedprovisions
of statelaw allowingFederalPostcardApplications("FPCAs") to be treatedas voterregistration
applications,consistencywiththe generaltreatmentof thosevoterswouldnotpermitthe signatures of
FPCAvoterswho are permanent residentsabroad(andthereforewho are not registered voters)to be
countedtowardthe totalnumberrequiredon the petition.Of course,the signatures of FPCAvoterswho
alsohappento be registered voterswouldbe treatedas valid.SeeH.B.536,81stLeg.R.S.,2009,at S 1
(to be codifiedas Section13.002(h),
TexasElectionCode).

mandatory?
G . Are all the signaturerequirements

petitionsignaturerequirements
Thecurrentstateof law regardingrestrictive TexasAttorney
is uncertain.
GeneralOpinionJM-501providesthatthe petitionsignaturerequirements of the Codeare mandatoryandthere
to waivetheserequirements.
is no authority /d.S 501.031;Op.Tex.Att'yGen.No.JM-501(1986).

Overtime,courtshavetendedto strikedowncertainsignaturerequirements as beingunconstitutionally

prohibitive, addressor dateof birth.
to includea signer'sfull residence
includingrequirements

In Fjetland v. Weddington,No.A-02-CA-045-SS (W.D.Tex.Jan.30,2002),theU.S.District Court,Western

Divisionstruckdownthe voterregistration numberrequirement for petitionsin lieuof filingfeefor primary
elections.Alsoin In re KevinBell.No.02-0034(Tex.2002),theTexasSupremeCourtheldthatthe inclusionof
the cityas partof the signer'sresidence addresswas unnecessary on the petitionin lieuof filingfee,as longas
the restof the information thatthe signeris eligibleto signthe petition.In In Re
on the petitionestablishes
Withersv. Commissioners courtof Bandera County,No.04-01-00322-W (Tex.App.-San Antonio2002),the
courtheldthatthe exclusionof the signer'sdateof birthon a rollbackpetitiondid not invalidate the signature.

Eventhoughthe abovementioned casesarefactspecific,thereseemsto be a movementin variouscourts

havingjurisdiction
in Texasto moveawayfroma strictconformityreviewprocessandto movetowardsa less
whethera signeris a qualifiedvoterandeligibleto signthe petition.
stringentreviewprocessto determine

CompareS 501.031with S 277.OO2 (describingthe petitionsignaturerequirementsfor petitionsoutside

the ElectionCode).Section501.031doesn't reflectthe statutoryincorporationof the decisionin ln Re
Withers,(citedabove),which allowedthe acceptanceof signaturesthat lackedthe date of birth.

H . Maya namebe removedfroma petitionthroughthe useof an affidavit?

[Sec.501.031(0].

Yes.A localoptionliquorpetitionsignaturemaybe withdrawnby filinga writtenaffidavitrequesting the removal

withthe voterregistrar, or cityor townsecretary,
electionsadministrator, whicheveris applicable.
The
withdrawal affidavitmustbe filedbeforethecompletedpetitionhasbeenfiledwiththe appropriate filing
authority. A withdrawalrequestsubmittedby mailis considered to be filedat thetimeit hasbeenreceivedby
A validandtimely-filed
the filingauthority. withdrawalaffidavitactsas if the signerneversignedthe petition.

voterfor purposeof signinga localoptionliquorpetition?

Whois a registered [Secs.13.143,
501.031]

On the datethe petitionis issued,a signermusthavean effectivevoterregistration

as of thatdatein the
political in whichthepetition
(i.e.,territory)
subdivision is beingcirculated.

a validresidenceaddress?
J . Whatconstitutes

The Secretaryof State'sofficehasexpressed for a petitioner

the opinionthatit is legallysufficient who doesnot
havea streetaddressto useeitherhis ruralrouteor postofficeboxaddressas his or her residence addresson
a petitionfor a localoptionliquorelection.However,if a petitioner
in facthasa streetaddress,he or she must
useit and nota businessstreetaddress,or a postofficeboxaddressas hisor her residence addresson the
petition.

K. ls the voter'sregistration
validif he or she hasmovedwithinthe ciV but has notupdatedhisor hervoter
registrationrecord?

TheTexasElectionCodedoesnot requirethe residenceprovidedon the petitionto be identicalto the one listed

on the officialvoterregistration listprovidedto the county,cityor townfor conducting the election,as applicable;
however,the personmustbe eligibleto votewithinthe incorporated county's,city'sor town'sboundaries.
Accordingly, if the voterlistsa differentaddressfromthe addressat whichhe or she is registered, the signature
is validas longas the addressis stillwithinthecounty,justiceprecinct,cityor town,as applicable.

Doesthe addresson the petitionhaveto listthe stateor zip codein orderto be a validaddressfor the purpose
of signinga localoptionliquorpetition?
[Sec.501.031(d)]
 No.Theomissionof the statefromthe signer'sresidence addressdoesnot invalidate a signatureunlessthe
fromwhichthe signatureis obtainedis situatedin morethanone state.Also,the omission
politicalsubdivision
of the zip codefromthe addressdoesnot invalidatea signature.

a localoptionliquorpetition
invalidate
M. Do dittomarksor abbreviations [Sec.501.031(c)]
signature?

on a petitiondoesnot invalidate
No.The useof dittomarksor abbreviations a signatureso longas the required
is reasonably
information ascertainable.

N. Howlongmaya petition
be circulated? 1.006]
[Sec.501.032,

A petitionmustbe filedno laterthan60 daysafterit is issued.lf the 60thdayafterthe petitionis issuedfallson

a Saturday,Sunday,or legalholiday,the petitionmaybe timelyfiledon the nextregularbusinessday.

the purposeor effectof a localoptionliquorpetition?[Sec.501.029]

O. ls it a crimeto misrepresent

a localoptionliquorpetition.
to misrepresent
Yes. lt is a ClassB misdemeanor

petitionto be submitted?
P. To whomis a completed [Sec.501.032]

Petitionsare to be submittedto the countyvoterregistrar.Forcountiesthathavean electionsadministrator,

Fora citythatis locatedin morethanonecounty,the petitionsare
petitionsare submittedto the administrator.
filedwiththe cityor townsecretary.

Q. Whois responsible
forverifying on thepetition?
thesignatures [Sec.501.031]

Generally,the countyvoterregistraris responsible for verifyingpetitionsignatures. In countieswhichhavean

petitionsareverifiedby the administrator.
electionsadministrator, lf thecityor townis locatedin morethanone
county,the cityor townsecretaryis responsible for verifyingthe signatures.

R. Cana statistical
sampling a localoptionliquorpetition?
methodbe usedwhenverifying [Sec.501.031(a)]
Yes.The politicalsubdivision
maychooseto usea statistical samplingmethodwhenverifyingpetition
A citizenfromthe politicalsubdivision
signatures. in whichthe petitionis beingcirculatedmayfilea written
requestthateachsignaturebe verified.Thecitizenmakingthe requestis responsible for thecostof verifying
eachsignature.lf a validrequestis made,the voterregistrar,
electionsadministrator, or cityor townsecretary,
shallverifyeachsignature.
as applicable,

S. lf the petitionis notvalid.doesit stillhaveto be presented

to thecommissioners
courtor citycouncil,as
applicable? [Sec.501.033]
Yes.Regardless of whetherthe petitioncontainsthe requirednumberof signatures, it mustbe recordedin the
minutesof the commissioners' courtor citycouncil,as applicable.The minutesshallreflectthe datea petitionis
filedwiththe voterregistrar,
electionsadministrator,or city secretary,the namesof the signers,andthe action
takenwithrespectto the petition.Pleasenotethatit is the opinionof the Secretaryof Statethata reference to
the signers'namescontainedon the petitionis sufficient.We do notbelievethatit is necessary to readevery
signer'snameintotheminutesto complywiththisrequirement.

V. Conducting
theLocalOption
LiquorElection
A. Whenmusta localoptionliquorelection
be held?[Sec.41.001(a)]

On a uniformelection
datespecified
in Section41.001(a)
of the Election
Code.

B. Whopaysfor theelection?
[Secs.501.107,
501.108]

lf the countyis obligatedto conductthe electionat its ownexpense,no depositis requiredfromthe petitioner.

1. Section501.107statesthatthecountymustpaythe expenseof holdinga localoptionelectionin the

county,justiceprecinct,or citywithinthe county,EXCEPTthat:
a. Afterconductinga localoptionelectionheldwithinthecity limitsof a city locatedentirelywithinthe
county,the countymay requirereimbursement fromthe cityfor all or partof the expensesof the
election.Sec.501.107(1).
b. Countypaymentof electionexpensesis limitedto oneelectionper politicalsubdivision untilafterthe
one-year anniversary of thatelection.
Sec.501.107(2).
 Note:Forpurposesof determining a county'sresponsibilityto conductan election,botha
legalizationelectionanda prohibitionelectionare treatedas relatingto the sameissueif both
electionsare predicated on the sameissuelanguage.In otherwords,if a countyconductsan
electionto prohibit"thelegalsaleof beerandwinefor off-premises consumption only,"Chapter501
wouldnotauthorizethe conductof a legalization electionregarding"thelegalsaleof beerandwine
for off-premisesconsumption only"untilthe one-yearanniversary of the firstelectionhadpassed.
Fox v. Burgess,302S.W.2d4O5,407(Tex.1957);Op.Tex.Att'yGen.MW-12(1979).

c. Countypaymentof electionexpensesspecifically to prohibitthe saleof alcoholicbeveragesis

limitedto oneelectionperpolitical withina one-year
subdivision period.Sec.501.107(3).
2. Section501.108statesthatif a countyis not requiredto paythe expenseof a localoptionelectionunder
501.107, the countyclerkmustrequirethe applicants for a petitionfor a localoptionelectionto makea
depositbeforethe petitionis issued.
a. Thedeposit:
i. mustbe in the formof a cashier'scheck;
ii. mustbe in the amountof 25 centspervoterlistedon the currentlistof registered votersin the
county,justiceprecinct,or citywherethe electionis to be held;
i i i . is non-refundable:
and
iv. mustbe depositedintothe county'sgeneralfund.
Thepetitionmay notbe issueduntila depositis made.
v i . lssuanceof the petitionwithouta deposit(whensucha depositis required) is a violationof
Section501.108andis a misdemeanor offense.

Note:We are concerned thatcountyclerksand electionsadministrators acrossthe stateface

the followingdilemma:if theyrequirethe depositin excessof the law'srequirements, theyface
potentialchallenge undercivillawforworkingan illegal(andpossibly unconstitutionally
burdensome) hardshipuponpetitioners; however,if theydo not requirethe deposit,theyface
potentialcriminalcharges.At presstime,our officeintendsto obtainan officialopinionon this
matterfromthe TexasAttorneyGeneral'soffice.In the meantime, we encourage youto
contactour officefor an updateif you are facedwitha depositissue.

c. Whenmusta localoptionliquorelection
be ordered?
[Secs.3.005,501.032]

The lastdayto ordera localoptionliquorelectionis the 62nodaybeforeelectionday,exceptthata localoption

liquorelection to be heldon the November uniformelectiondayin an even-numbered yearmustbe orderedthe
electionby no laterthanthe 70thdaybeforeelectionday.Thefirstdaythe commissioners' courtor city,as
applicable,mayorderan electionis at its nextregularsessionoccurringon or after30 daysafterthe datethe
petitionwas filedwiththe voterregistrar,
electionsadministrator,
or citysecretary,
as applicable.

D . Whatmustbe in theelection order?[Sec.501.034]

r Theordermuststate,bothin its headingandtext,whetherthe electionis for the purposeof legalizing or
prohibiting the saleof beverages as set out in the petition.
r Theordermuststatethe issueto be votedon.
r Theordermuststatethe pollingplacefor eachelectionprecinct.
r lf the electionis for a cityor town,the ordermuststatethe precinctnumbersof the countyelection
precinctsincludedwithineachcityelectionprecinct.Forliquorelectionslocatedin morethanonecounty
and heldat cityexpense,onlythe cityelectionprecinctsneedto be statedin the order.
r Theearlyvotingpollingplacesandpollinghoursshallbe statedin theordercallingtheelection.
r Theordermuststatethe countyclerk's,electionadministrator's or cityor townsecretary's,
as applicable,
mailingaddressto whichballotapplications and ballotsvotedby mailmaybe sent.
E. Howshalltheproposition appearon theballot?[Secs.501.035,501.109]

ballotpropositions
Thepermissible aresetoutin Sections
501.035and501.109.Theballotmustbe bilingual.
of the ballotpropositions,
ForSpanishtranslations see SectionlV. B. above.

F . Whatnoticemustbe givenfor a localoptionliquorelection?[Sec.4.003]

The noticeof a localoptionliquorelectionis providedto the publicin accordance

withthe TexasElectionCode.
The noticemustbe postedon the bulletinboardusedfor openmeetingspostingson or beforethe 21stday
beforeelectionday.Countiesmustalsoprovidenoticein one of the followingmanners;

1 . By postinga noticein eachelectionprecinctin whichthe electionis to be conducted

by the 21stday
beforeelectionday;
2 . By publishing of generalcirculation
a noticein a newspaper at leastoncebeNveen
the 30thand 1Othday
beforeelectionday;or
 voterof the territorycoveredby the electionby the 1Oth
3. By mailinga copyof the noticeto eachregistered
daybeforeelectionday.
4. Thisnoticemustinclude:
a. thetypeanddateof the election;
b. the locationof eachpollingplace;
c. thehoursthepollswillbe open;
d. thelocation of themainearlyvotingpollingplace;
e. the regulardatesand hoursfor earlyvotingby personalappearance;
f. the datesand hoursof anySaturdayor Sundayearlyvoting,if any,and
g. theearlyvotingclerk'smailingaddress.

ForCitiesthatare Locatedin MorethanOneCounty:In additionto postingthe noticeon the bulletin

board,the noticemustbe publishedin accordance
with#2 above.

G. Mavelectionprecinctsbe consolidated
in a localoptionliquorelection?[Sec.501.103]

or for a justiceprecinct,the regularcountyelectionprecinctsmustbe used.

No. lf the electionis county-wide
Theelectionmustbe heldat the customarypollingplacein eachprecinct,if available.lf the electionis for a city
or town,the regularcityelectionprecinctsmustbe used.

H. Whataboutearlyvoting?

The regularrulesgoverningearlyvoting,as set out in the ElectionCode,applyto earlyvotingin localoption

liquorelections.

Vl. Resultsof the LocalOotionLiquorElection

Thereare twotypesof localoptionliquorelections: prohibitionand legalization.The legalresultof an electionmay

varygreatlydependingon whetherit was heldfor the purposeof legalization or prohibition.The purposeof the
election,eitherfor prohibition mustbe statedin the petitionand the order.lt is not,however,statedon
or legalization,
the ballot.

legalization
A. Whatis theeffectof a successful election?
[Sec.501.151]
lf the proposition
passes,the saleof alcoholicbeverages as set out in the ballotproposition
willbe legalized.
Thislegalization willtakeeffectat the timethe resultsof the electionare officiallycanvassed.

Thecountyclerkor cityor townsecretary,withinthreedaysafterthecanvass,shallcertifythe resultsto the

Secretaryof Stateandto the AlcoholicBeverageCommission.

B. Whatistheeffectofasuccessfulprohibitionelection?[Secs.501.151,501.153]

lf the proposition
passes,the saleof alcoholicbeverages as set out in the ballotproposition
willbe prohibited.
Thisprohibition willtakeeffect30 daysafterthe resultsof the electionare officially
canvassed.

Thecountyclerkor cityor townsecretary,withinthreedaysafterthe canvass,shallcertifythe resultsto the

Secretaryof Stateandto the AlcoholicBeverageCommission.

C. Whatis the resultof an unsuccessful

legalization
election?
[Sec.501.151(d)]
An unsuccessfullegalizationelectionhas no effecton the statusof the county,justiceprecinct,cityor town,as
in whichthe electionwas held.A cityor justiceprecinctwhichhasadoptedno statusof its own
applicable,
regarding
the legalizingof alcoholicbeverages takeson the statusof its surrounding territory.

proposition
Forexample,if a city rejectsa legalization and the surrounding justiceprecinctlaterapprovesa
proposition,
legalization the saleof alcoholicbeveragesas set out in the propositionwillbe legalizedwithinthe
cityas wellas all otherpartsof thejusticeprecinctwhichhad no priorlocaloptionstatus.

Thefailureof a proposition
to legalizethe saleof alcoholicbeverageshasno prohibitory
effect.
prohibition
D. Whatis the resultof an unsuccessful [Sec.501.151(d)]
election?

prohibition
An unsuccessful electionhas no effecton the statusof the county,justiceprecinct,cityor town,as
in whichthe electionwas held.As above,thefailureof a prohibition
applicable, electioncannotserveto legalize
 the saleof alcoholicbeveragesin a territoryin whichtheywerehithertoprohibited.

E . Howdoesa county.justiceprecinct.cityor town.as applicable.

acquirea localoptionstatusregarding
the sale
of alcoholicbeverages?

A politicalsubdivisionof the Stateof Texascan acquirea localoptionstatusregarding the saleof alcoholic

beverages of thatpoliticalsubdivision.
onlyby a voteof the electorate A statuscan onlybe adoptedby a vote
againstlhesaleof beveragesin a prohibition electionor by a vote forthe saleof beveragesin a legalization
election.In otherwords,the rejectionof a propositioneitherto legalizeor to prohibithas no effectuponthe
statusof a politicalsubdivision.

F . Whenthe resultsof localoptionelectionsheldby differenttypesof politicalsubdivisions

conflictwithregardto
the sameterritory,whatstatusprevails?[Secs.251.72,251.73,TexasAlcoholicBeverageCode]

Thestatusof an areaas determined cityprevailsovera contrarystatusas

by an electionin an incorporated
determined by a justiceprecinctor county-wideelection.Whena justiceprecinctis whollycontainedin an
incorporatedcity,the statusof thejusticeprecinctprevailsoverthatof the city.The relativedatesof the
electionsare of no consequence.

The statusof an areaas determined by a justiceprecinctelectionprevailsoverthe statusof an areaas

determined by a county-wideelection.The relativedatesof the electionsareof no consequence. To the extent
thattwoor morelocaloptionelectionsheldat the samevotingunitlevelapplyto the sameterritory,the most
recentelectionprevails.SeealsoTex.Att'yGen.Op. GA-0635(2008);ln re Davis,269S.W.3d581 (Tex.
2008).

G . Whateffectdoesthe annexation of territoryfroma politicalsubdivision

or detachment haveon thatterritory's
localoptionstatus?

of territoryfroma citydoesnotaffectthe statusof the addedor

Theadditionof territoryto or detachment
detachedterritory.Thechangeof boundaries of a justiceprecinctdoesnotaffectthe statusof the territory
formerlywithinthejusticeprecinct.

lf a wetcity annexesa dry territory.doesthe electionto changethe localoptionstatusof the newly-annexed

territoryneedto be heldin thewholeciV or onlyin the annexedterritory?

A dry areaannexedto a wet city retainsits originaldry status.Houchinsv. Plainos,110 S.W.2d 549 (Tex.
1937).To changethe annexedarea'slocaloptionstatus,a legalization electionwouldhaveto be held.The
legalizationelectionwouldhaveto be citywide,sincethe ElectionCodeallowslocaloptionliquorelectionsto be
heldin counties, justiceprecincts,andcities.Tex.Elec.CodeAnn.S 501.021(VernonSupp.2006).Thereis no
authorityin the TexasElectionCodenorthe TexasAlcoholicBeverageCodefor a localoptionelectionto be
limitedto partof a city.Tex.Att'yGen.Op.DM-44(1991),andthisremainsunchanged, notwithstanding
the
adoption of Section501.0211 of the Election Code(authorizing citylocaloptionliquorelections
by resolution
of
the citycouncil,ratherthanby petition,in citieswithat least112,000people,if locatedin a countywithno more
than135,000people).

lf the localoptionelection.as describedin questionH, is heldciVwideand votersvoteagainstthe legalization,

doesthataffectthe wet statusof thewholecity?

No.UnderSection501.151(d) of the Code,a failedlegalization

electiondoesnotaffectthe localoptionstatusof
thepolitical Tex.Elec.CodeAnn.S 501.151(d)(VernonSupp.2006).lf a legalization
subdivision. election
is
heldin a cityandthe issuedoesnotpass,the citywouldretainits originalwet status,whilethe newly-annexed
areawouldremaindry.

ls therea limiton thefrequency

of localoptionliquorelections?
[Sec.501.038]
Yes.Whenone of the issuesin Sections501.035and501.109is presentedto the votersof a political
thatidenticalissuemaynot be presented
subdivision, to themagainuntiloneyearhaselapsed.Theimportant
thinghereis the wordingon the ballot.Theone-yearlimitation
doesnotaffectelectionsin whicha different
ballotpropositionis presented
to the voters.

SeeAttorney General's OpinionNo.MW-12(1979),holdingthata ballotproposition maypresentthesame

issueas an earlierproposition
evenwhenoneelectionis an electionto legalizeandthe otheris an electionto
prohibit.

Thislimitation frequency
on election appliesonlyto elections
heldin thesamevotingunit.lf an issueis
submittedto the votersof a justiceprecinct,for example,the sameproposition
maybe submittedto the votersin
a cig withinthejusticeprecinctbeforea yearhaselapsed.