Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 05-10-00805-CV
IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
AT DALLAS
ATTORNEYSFORRESPONDENTS
IDENTITY OF PARTIES AND COUNSEL
PARTIES COUNSEL
jurisdiction and Relators have an adequate remedy at law. Under well established
standing, mootness,and this Court's lack of authority to inquire into the validity of the
reading of the applicable statutes demonstratesthat the Realtors' claims are without
IDENTITYOF PARTIES
AND COUNSEL.............. .......................
i
STATEMENTREGARDINGORALARGUMENT.......... .............ii
RESPONSE
TO STATEMENTOF JURISDICTION....... ..............
xi
RECORDREFERENCES......... ....................
xii
RESPONSE
TO ISSUESPRESENTED........... ............xiii
INTRODUCTION(LocalOptionElectionProcedures)............. ......I
ARGUMENT........... ......7
lll
2. The churchesand related associationsdo not have standingto
petition for writ of mandamusfor themselvesor on behalf of
theirindividualrespective members. .......... ....................
15
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
C O N C L US IONA N D p R A yE R ...................35
Certification
IV
City Secretarymemorandumand certification....... Tab 2
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
Blum v. Innier,
997 S.W.2d259(Tex. 1999) 8,14,17,24
Brown v. Todd,
53 S.W.3d297 (Tex.200l) 14, 16
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
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
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
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 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
Izggett v. Cochran,
193S.W.2d729(Tex.Civ. App.-1946, no writ) ...............12
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
Ramirezv. Flores,
505 S.W.2d406(Tex.Civ. App.-San Antonio 1973,writ ref'd n.r.e.)...............20
vl11
RetiredChicagoPoliceAss'nv. City of Chicago,
7 F.3d584(7thCir.1993) ..................18
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
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
the Respondents
For convenience, will refer to the recordasfollows:
MandamusRecord: MR volume:pAge
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 RE MARCUSWOOD,THE KIRKWOODTEMPLE,
THE AFRICAN-AMERICANPASTORSCOALITION,
THE INTERDENOMINATIONALMINISTERIALALLIANCE OF DALLAS,
THE MT. TABOR BAPTISTCHURCHAND THE LIFEWAY CHURCH
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)
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
the municipality file an application with the city secretary and submit proof of
secretarythen issues a petition to be circulated among qualified voters of the city for
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
pays for the cost of verifying eachsignatureon the petition. /d. $$ 501.031(a),.109. The
provided. 1d. $$ 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
a local option election on whether to legalize the sale of beer and wine for off-premise
determinedto be proper and a petition was issuedon March 23,2010. (City's App'x Tab
requesting that a local option election be held was filed with the City Secretary. (MR
sufficient signatures had to be determined by June 23, 2010. Tex. Emc. CoDE
Marcus Wood requestedthat all of the petition's signaturesbe verified rather than having
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
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;
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;
On June 23, 2010, the City Secretary advised the City Council that a sufficient
at 2-3). As a result of the determination, the City Council called for the local option
Secretaryprovided a memorandumto the City Council advising them of the total number
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
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
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
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.
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
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
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,
ARGUMENT
I. Relators are not entitled to mandamus relief becausethe Court lacks subject-
matter jurisdiction.
"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
CV, 2010 wL 670185, at xl (Tex. App.-Houston t14th Dist.l Feb. 25, 2010, orig.
proceeding)(mem. op.).
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
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.
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
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
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
(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
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
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
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
does not have jurisdiction to interfere with a called local option election as Relators
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.
legally cognizableinterestin the outcome. Allstate Ins. Co. v. Hallman,159 S.W.3d 640.
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
Here, no relief can be afforded before the election is called becauseit has already
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
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
judgment in an election contest. The capable of repetition exception requires that the
generally Fed. Deposit Ins. Corp., 886 S.W.2d at 767.7 But an issue does not evade
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
error); Hutson v. Smith, 191 S.W.2d 179 (Tex. Civ. App.-Galveston 1946, no writ)
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.
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:
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 200g) (citations
omitted).
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
Brown,53 S.W.3dat302.
total signatureverification and "arranged" for payment of the cost of the verification by
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
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
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
having suffered a palpable injury as a result of the defendant's actions (direct standing);
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.
The petition and affidavits do not demonstrate that the members of Relator
assert that some of their members are registered voters. For example, the affidavit of
Tabor Baptist Church includes 2000 registeredvoters. (MR 97). Likewise, the affidavit
congregation of Kirkwood Temple. Finally, the affidavit of Karen Hollie states that
have membersthat are registeredvoters does not confer standing. SeeBrown, 53 S.W.3d
at302.
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.
members of Relator organizationsdo not claim to be signers of the petition nor do they
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
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
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
Pastors Coalition and Lifeway Church)e assert that their purpose to advance the
indication, however, that the actions complained of in the petition would affect the
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
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:
(http\\www.lifewaychurchofdallas.com
fCity's App'x Tab 5]). The purposesof these
calling an election.
None of the Relator organizations are able to show that the interests that the
18
Relator organizations have not met the second element for establishing associational
standing.
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
II. Relators are not entitled to mandamus relief because they cannot satisfy the
standard for mandamus relief.
A. Mandamus standards.
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
19
when the election officer's duty to act is clearly fixed and required by law. Id. (citing
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
Callahan v. Giles, I37 Tex. 571, 155 S.W.2d 793,795 (1941) (orig. proceeding). A
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
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
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
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
discretionof the court. RivercenterAssocs.v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)
[14th Dist.] 1984),writ ref'd n.r.e.,677 S.W.2d 487 (Tex. 1984)(per curiam).
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
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
S.W.2d 371,374 (Tex. Civ. App.-Tyler 1978,writ dism'd). Whethera petirion was
Kennedy,474 S.W.2d at746; seealso Rossanov. Townsend,g S.W.3d 357 (Tex. App.-
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
$$ 501.109(d); 501.155. The legislature determined that any dispute regarding rhe
Relators have an adequateremedy at law, they are not entitled to mandamusrelief. The
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
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
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
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
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 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
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
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.
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
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:
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
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
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
with the actualnumber. The City's Council's duty was to call an electionif supportedby
The City Council performed that duty. Thus, the petition for writ of mandamusshould be
denied.
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
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
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
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.
Moreover, the statute does not set a time requirement for the certification of an
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.
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
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
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
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
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
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
or alter its wet or dry statusby election.TEx. Er-Bc.CooB $ 501.021;Tnx. ALCg. BEV.
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
justice precincts, and (2) Section 251.73 controls over it: "Nothing in this section is
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
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.
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
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
did not involve the effect of a subsequentlocal option election and certainly did not
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
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
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
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
annexation, the latest expression of the population of the entire city controlled. Id.
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
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
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
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
of law, or the failure of City officials to perform any duty imposed by law. For all these
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.
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
6. AttorneyGeneral
OpinionM-355
7. AttorneyGeneralOpinionDM-44
STATE OF TEXAS $
s
COUNTY OFDALLAS $
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
CHARLESESTEE
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 RE MARCUSWOOD,THE KIRKWOODTEMPLE,
THE AFRICAN-AMERICANPASTORSCOALITION,
THE INTERDENOMINATIONALMINISTERIALALLIANCE OF DALLAS,
THE MT. TABORBAPTISTCHURCHAND THE LIFEWAY CHURCH
STATEOF TEXAS $
$
COUNTYOF DALLAS $
BEFORE ME, the undersignedauthority, on this day personally appearedDeborah
I have personal knowledge of all the facts stated herein and they are true
and correct.
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.
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.
RAH WATKINS
ro: HONORABLEMAYORAND
MEMBERS OF'THE CITY COUNCIL
SUBJECT:
FINAL REVIEW. PETITION FOR LEGAL SALE OF BEER AND WINE FOR
OF'F.PREMISECONSUMPTIONONLY
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.
Deborah Watkins
City Secretary
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.
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
Tab 3
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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)
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.
Current through the end of the 2009 Regular and First Called Sessions
ofthe 81st Lesislature
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?
- t649 -
llon. Charles A. AIIen' Iage 2 (l{-33 5 )
- 1650-
Ilon. Charles A. Allen, Page 3 (M-335)
- r 6 5 t-
IIon. Charles A. Allen, Page 4 (M-335)
SUMMARY
6Wa
[FORD C. I{ARTIN
orney General of Texas
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
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:
p. 22L
HonorableBiUG. Carter-Page? (D!,!-44)
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.
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)
524S.W.2dat 579.
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:
p. 224
Ilonorable Bill G. Carter - Page5 (DM-44)
SUM,MABY
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)
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.
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).
A. TABCresources
TexasAlcoholicBeverageCommission
P.O.Box13127
Austin.Texas78711-3127
512-206-3333
information
B. Historical
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?
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].
TheAttorneyGeneralhasopinedthat:
Op.Tex.Att'yGen.JM-1177(1990),at 5.
lll. Application
to applyfor a petition?[Sec.501.023(a)]
A. ls it necessary
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.
As manyas requested, butthe county,cityor townis not requiredto providemorethanone pagefor every10
votersin the politicalsubdivision
registered to be coveredby the election.
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).
a validresidenceaddress?
J . Whatconstitutes
K. ls the voter'sregistration
validif he or she hasmovedwithinthe ciV but has notupdatedhisor hervoter
registrationrecord?
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 localoptionliquorpetition.
to misrepresent
Yes. lt is a ClassB misdemeanor
petitionto be submitted?
P. To whomis a completed [Sec.501.032]
Q. Whois responsible
forverifying on thepetition?
thesignatures [Sec.501.031]
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,
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.
c. Whenmusta localoptionliquorelection
be ordered?
[Secs.3.005,501.032]
ballotpropositions
Thepermissible aresetoutin Sections
501.035and501.109.Theballotmustbe bilingual.
of the ballotpropositions,
ForSpanishtranslations see SectionlV. B. above.
G. Mavelectionprecinctsbe consolidated
in a localoptionliquorelection?[Sec.501.103]
H. Whataboutearlyvoting?
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.
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.
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.
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).
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.