Justice Craig T. Enoch
Arthur J. Andersen
Alex S. Valdes
With the repeal of Prohibition, the right of Texas citizens to vote on the sale of alcoholic beverages has been found in the Texas Constitution. But how our citizens vote is, as often is the case under our constitution, left to the Texas Legislature. And that is always a dangerous thing.
In 2006, the largest electoral petition drive in Texas history drew more than 100,000 petition signatures calling for a local option election to legalize the sale of alcoholic beverages in Justice Precinct Three of Dallas County. As required by Texas’ Election Code, Dallas County’s Elections Administrator checked signature qualifications and certified them, thus placing the call for the election on the Dallas County Commissioners Court’s Agenda. And under the Election Code, once an election petition is certified by the Election Administrator, the Commissioners Court has no option except to call the election. Yet no election was called.
No election was called because the Commissioners Court didn’t know what to do. Under the Texas Constitution, citizens in a justice precinct are entitled to vote on the sale of alcoholic beverages. Under the Election Code, that election is called by obtaining the necessary signatures of qualified voters within the justice precinct. But under the Alcohol and Beverage Code, if a precinct had ever voted in the past on the sale of alcoholic beverages, and its boundaries had changed, then the citizens in the original territory of the precinct must vote in any new election affecting any part of the original territory. How does that work?
In re Davis1 presents this conundrum to the Texas Supreme Court. Argument was held on December 5, 2007, and the matter is pending the Court’s decision.
II. The Law
Texas’ alcoholic beverage laws are, as one commentator put it, “some of the strangest in the nation.”2 Take the City of Houston for instance: “Drive from Fourth Street in Houston to Fourth Street in Deer Park via the Washburn Tunnel and it goes something like this: dry, wet, dry, wet, dry.”3 The confusion largely stems from the fact that, after Prohibition ended, political subdivisions were generally “dry” by default, meaning the sale of alcoholic beverages was prohibited.4 From that point forward, the legalization of the sale of alcoholic beverages would be by local determination using a petition-driven election process.5
Despite the confusion arising from the lack of uniformity of local alcohol laws, Texas law is clear when it comes to the absolute right of its citizens to vote on whether to legalize the sale of alcoholic beverages. Article XVI, Section 20 of the Texas Constitution, states: “(b) The Legislature shall enact a law or laws whereby the qualified voters of any county, justice’s precinct or incorporated town or city, may, by a majority vote of those voting, determine from time to time whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized.”6 Thus, under the constitution, qualified voters have the right to determine whether the sale of alcoholic beverages shall be legalized in a county, justice precinct, town, or city.
Logically, this raises the question, “who are the qualified voters?” The answer seems simple enough, but the analysis is not quite complete. The constitution also directs that if the sale of alcoholic beverages in the area is prohibited as a result of a local option election that occurred before Section 20, Article XVI took effect, the local option status of the county, justice precinct, town or city can only be changed by the majority vote of the qualified voters within that county, justice precinct, town, or city.7
Another unanswered question is “what steps must be taken in order to have a local option election placed on a ballot?” Under the Election Code, one must successfully apply for a petition;8 the petition must be signed by the requisite number of eligible voters;9 and the voter registrar must check the signatures to determine whether the minimum number of qualified voters signed the petition.10 If the petition requirements are met, the registrar must certify to the commissioners court the number of qualified voters signing the petition.11 Once this step has been completed, “proper petition” has been made and “the commissioners court shall order a local option election.”12
While the Election Code determines whether and when a local option election will be called, the Alcoholic Beverage Code affects the territory within which the election will be held. Section 251.80 of the Alcoholic Beverage Code provides:
Whenever a local option status is once legally put into effect as the result of the vote in a justice precinct, such status shall remain in effect until the status is changed as the result of a vote in the same territory that comprised the precinct when such status was established.13
Section 251.80 also provides a mechanism to allow votes to change the status:
If the boundaries of the justice precinct have changed since such status was established, the commissioners court shall, for purposes of a local option election, define the boundaries of the original precinct. A local option election may be held within the territory defined by the commissioners court as constituting such original precinct.14
Under the Alcoholic Beverage Code, once an election has been certified, the Commissioners Court must define the historical boundaries of the justice precinct where a previous local option election had been held and order a local option election in that precinct.15
At the heart of this case is the issue of what one must do to have an election called in an historical area that does not fall completely within a modern precinct, yet at the same time satisfy the petition requirements in the Election Code that apply to modern precinct boundaries. This is the question the Supreme Court of Texas is poised to answer in the case of In re Davis.16
III. The Facts
Large portions of Dallas County remain dry today. In 2006, more than 100,000 Dallas County citizens petitioned for a local option election to allow the sale of beer and wine for off-premises consumption in Dallas County Justice Precinct Three.17 As required by the Election Code, the process began when at least ten qualified voters of Justice Precinct Three applied for local option election petitions. Based on the Election Code and considering Dallas County voting records for Justice Precinct Three, at least 58,901 valid signatures from Precinct Three were required for a local option election to be called.
The response to the petition drive was overwhelming. In less than two months, more than 102,000 petition signatures in favor of the local option election were collected—a number reflecting more than sixty percent of the voters in the precinct who had voted in the last gubernatorial election. The Elections Department, after certifying that the minimum number of required signatures had been submitted, requested a local option election to be held on May 12, 2007.
The local option election item was placed on the Commissioners Court’s agenda for its February 13, 2007 meeting.18 The item stated:
To approve order approving the Dallas County Elections Department’s request to order a local option election to be held on May 12, 2007 for ‘The legal sale of beer and wine for off-premise consumption only’ in the Justice of the Peace, Precinct 3 within the boundaries as established by Commissioners Court.19
At its meeting, the Commissioners Court considered that under Alcoholic Beverage Code, Section 251.80, if a precinct had held a local option election, then the precinct’s historical boundaries were required to be reestablished in order to allow the voters living in the historic area to vote in the local option election.20 Viewing historical maps, the Commissioners Court discovered a large part of the northern area of Justice Precinct Three was once in a historical precinct two, which voted “dry” in 1877, and a smaller, southeastern part of Justice Precinct Three had been in a historical precinct three, which voted “dry” in 1878.
Though it was able to isolate the historical precincts, the Commissioners Court ultimately refused to call any local option election, essentially interpreting Texas law in a way that results in a classic Catch-22. The Secretary of State and the Dallas County Elections Department won’t certify petitions for an election unless the petitions are issued, circulated and certified based on modern precinct boundaries. Yet the Commissioners Court won’t call an election unless the petitions are issued, circulated and certified based on non-current, historical precinct boundaries. It is this stalemate the Supreme Court has been asked to resolve.
IV. The Commissioners Court’s Argument
The Commissioners Court’s objection is based on its belief that the petition must identify the boundaries of the historical precinct, and the voters who sign the petition must be voters within that historical precinct.21 Because the petition in the instant case was issued for circulation in a modern precinct, was signed by voters of the modern precinct, and called for an election within the modern precinct, the Commissioners Court believed it had no authority to call an election satisfying the requirement of section 251.80.22
V. The Relators’ Argument
Relators have argued the Commissioners Court’s position imposes impossible requirements, ones not expressly imposed by the relevant statutes, which statutes should not be construed in a manner that effectively prohibits Texans from voting on local option status.23 Rather the statutes can be read in a manner that empowers voters and preserves the right to vote on local option status.24 Although the local option election process begins with the petition process, this first step is but a legislative threshold generally imposed on all ballot initiatives to assure there is sufficient interest in a proposed ballot issue and to avoid voter confusion and ballot overcrowding.25 In the instant case, the petition requirement for modern precinct three was satisfied when the Elections Department called for a local option election to be held on May 12, 2007.26 Notably, neither the Texas Constitution nor section 251.80 says anything about signatures or petitions. Certainly, there is no inherent need for the petition territory to encompass more area than an existing precinct in which the election is to be called.
The next step required by the Alcoholic Beverage Code is to determine whether any part of Justice Precinct Three had once been part of a historical justice precinct that had held a local option election. If so, the Commissioners Court is required to draw the historical precinct boundaries for that territory and order the local option election, including that territory. Significantly, under Section 501.021 of the Election Code, “[o]n proper petition by the required number of voters of a . . . justice precinct . . ., the commissioners court shall order a local option election in the political subdivision to determine whether the sale of alcoholic beverages of one or more of the various types and alcoholic contents shall be prohibited or legalized in the political subdivision.”27
Moreover, under the Alcoholic Beverage Code, it is not the Election Department’s responsibility to draw historical precinct boundaries for the purpose of issuing petitions. Rather, it is the Commissioners Court who must draw the boundaries of the historical precinct after the election is called.28 The Alcoholic Beverage Code specifically charges the Commissioners Court with this responsibility, stating: “[i]f the boundaries of the justice precinct have changed since such status was established, the commissioners court shall, for purpose of a local option election, define the boundaries of the original precinct.”29
VI. Can the Constitution and Statutes be Reconciled?
Notably, nothing in Texas law prohibits including voters from historic territories on the vote to change the status of a portion of that territory. To the contrary, it appears Texas law intends for those persons to be included. Here is how such an election could work:
The qualified voters in a local option election would be the persons residing within the precinct in which the election was called. In addition the qualified voters would include persons residing within the historical boundaries of a territory that had previously voted in a status election and any part of which currently falls within the precinct holding the election. Including voters in the entire territory of historical precincts to have a say on whether territory within the modern precinct changes its wet/dry status is consistent with the constitution, the legislative intent underlying the petition requirements, and both the Election Code and the Alcoholic Beverage Code. Perhaps most importantly, this interpretation prevents voter disenfranchisement because this method ensures that the voters of each historical district maintain maximum control over the wet/dry status of their respective territories while honoring the right of citizens in justice precincts to vote on the sale of alcoholic beverages.30
Elections are held to ascertain the will of the people31 and the right to vote is “one of the most treasured of all American heritages guaranteed by the Constitution and Bill of Rights.”32 Election laws exist not to thwart the right to vote, but to protect the purity of the ballot so that the will of the majority of qualified voters will prevail.33 Accordingly, statutes regulating the right to vote should be liberally interpreted in favor of the right to vote because “[t]he right to vote is so fundamental in our form of government that it should be as zealously safeguarded as are our natural rights.”34 In this case, the Commissioners Court has created a conflict in election laws where none exists. How the Texas Supreme Court will resolve this conundrum remains to be seen.
Cite as: Justice Craig T. Enoch, Arthur J. Andersen & Alex S. Valdes, In re Calla Davis: Texas Supreme Court to Interpret Alcoholic Beverage Election Laws, TEXSUPP (2008), available at
- No. 07-0147 (Tex. argued Dec. 5, 2007).[back]
- J.R. Labbe, You May Need a Drink to Understand Our Liquor Laws. Fort Worth Star-Telegram, May 16, 2004 at E3.[back]
- Mark Babineck, Why Are Alcohol Rules in Texas So Different from Place to Place? Houston Chronicle, August 5, 2007 at B1.[back]
- See Texas Secretary of State Phil Wilson, Local Option Liquor Elections – Questions and Answers, http://www.sos.state.tx.us/elections/laws/liquorelections.shtml(last visited Feb. 24, 2008).[back]
- Tex. Const. art. XVI §§ 20(a)–(b) (emphasis added).[back]
- Id. § 20(c).[back]
- Tex. Elec. Code Ann. § 501.023 (Vernon Supp. 2007).[back]
- Id. §§ 501.031–32.[back]
- Id. § 501.031.[back]
- Id. §§ 501.031–32.[back]
- Id. § 501.021 (emphasis added).[back]
- Tex. Alco. Bev. Code Ann. § 251.80 (Vernon Supp. 2007). [back]
- Id. [back]
- See id.[back]
- In re Davis, No. 07-0147 (Tex. argued Dec. 5, 2007).[back]
- This effort began with identifying areas within Dallas County that were “dry” and inquiring of the Dallas County Elections Department the area from which signatures would have to be obtained in order to call for an election to sell beer and wine in those areas. The Elections Department determined the areas were in Justice Precinct 3 and that petitions would have to be circulated in and signed by qualified voters from Justice Precinct 3. This decision was based on advice received from the Director of Elections for the Elections Division of the Office of the Secretary of State, Ann McGeehan—advice subsequently confirmed by the legal section of the Elections Division. Under Section 31.004 of the Election Code, the Secretary of State is required to maintain an informational service for answering inquiries of election authorities relating to the administration of the election laws or the performance of their duties. Tex. Elec. Code Ann. § 31.004 (Vernon 2003).[back]
- Petition for Writ of Mandamus at 2–3, In re Davis, No. 07-0147 (Tex. filed Feb. 26, 2007).[back]
- Tex. Alco. Bev. Code Ann. § 251.80 (Vernon Supp. 2007).[back]
- Respondent’s Brief on the Merits at 6, In re Davis, No. 07-0147 (Tex. filed July 13, 2007).[back]
- Id. at 8.[back]
- Relators’ Brief on the Merits at 20, In re Davis, No. 07-0147 (Tex. filed June 13, 2007).[back]
- Relators’ Brief on the Merits at 17–18, In re Davis, No. 07-0147 (Tex. filed June 13, 2007).[back]
- See Atkinson v. Carter, 785 S.W.2d 449, 454 (Tex. App.—Houston [14th Dist.] 1990), mand granted on other grounds, Carter v. Fourteenth Court of Appeals, 789 S.W.2d 260 (Tex. 1990).[back]
- Relators’ Brief on the Merits at 4, In re Davis, No. 07-0147 (Tex. filed June 13, 2007).[back]
- Tex. Elec. Code Ann. § 501.021 (Vernon Supp. 2007) (emphasis added).[back]
- See Tex. Alco. Bev. Code Ann. § 251.80 (Vernon Supp. 2007).[back]
- Tex. Alco. Bev. Code Ann. § 251.80 (Vernon Supp. 2007).[back]
- See Quick v. City of Austin, 7 S.W.3d 109, 127 (Tex. 1998) (Enoch, J., concurring).[back]
- Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1016 (1924).[back]
- See Wooley v. Sterett, 387 S.W.2d 734, 738 (Tex. Civ. App.—Dallas 1965, no writ) (“The right to free exercise of intelligent choice at the polls is surely one of the most treasured of all American heritages guaranteed by the Constitution and Bill of Rights“).[back]
- Davis v. State, 75 Tex. 420, 12 S.W. 957, 962 (1889).[back]
- Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630 (1948).[back]