Transcript Place Title Here

Special County Elections
with emphasis on
Local Option Liquor Elections
32nd ANNUAL ELECTION LAW SEMINAR
for
COUNTY ELECTION OFFICIALS
Caroline Geppert
7/21/2015
Texas Secretary of State Elections Division
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Sources of Law
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Agriculture Code
Alcoholic Beverage Code
Education Code
Election Code
Government Code
Health and Safety Code
Local Government Code
Occupations Code
Tax Code
Transportation Code
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Special County Elections
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Constitutional Amendment Elections
Bond Elections,
Bingo Elections,
Stock Law Elections,
Leash Law Elections,
Hail Suppression Elections,
City Incorporation Elections,
First Election of Council Members for Newly Incorporated City,
Adoption of County Road Department System Election
County Health Unit Creation Election,
Creation, Consolidation, Abolition of School Districts,
Local Option Liquor Elections.
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History of Texas Liquor Laws
• Default Status of Texas prior to 1918: Wet.
– Pre-1891 legislative action made some jurisdictions dry
• Prohibition (Article XVI, Section 20, US Constitution)
adopted 1918 and repealed 1935.
• Reversion to Pre-Prohibition Status in 1935.
• Majority of Texas Counties were dry after Prohibition ended.
• After 1935, some entities held Local Elections to go wet
or go dry (i.e., to change the pre-prohibition status).
• Texas Alcoholic Beverage Code Chapter 251
• Texas Election Code Chapter 501 (added 2005)
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Why is the History Important?
So that Petitioners can determine if they even need to
hold an election and, if so, exactly what issue they
need to petition for.
• Can go from totally dry to some form of wet
(legalization election)
• Can go from one form of wet to another/additional
form of wet (legalization election)
• Can go from wet to dry (prohibition election)
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How Do Petitioners Determine Status?
1. TABC Resources – www.tabc.state.tx.us/
• Historical Election Results (from 1935 onwards)
• Maps of Wet/Dry areas
2. Historical County Election Records
• For Information on Elections prior to
Prohibition
3. New Law – HB 2818 (2013)
• More relevant to counties than to cities
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In Which Political Subdivisions Local Option Liquor
Elections Occur?
• Counties
• Justice of the Peace Precincts
• New Law - HB 2818 (2013) – use new boundaries after redistricting
• Municipalities (cities, towns, villages)
– As of 2011, Section 501.109 of the Election Code provides
that city conducts city-wide election, not county.
– References in Chapter 501:
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For “county,” read “city”
For “commissioners court,” read “governing body of the city”
For “county clerk/voter registrar, read “city secretary”
For “county judge,” read “mayor.”
– Section 501.109(c) provides that the city pays the expense
of the election.
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New Law – HB 2818, Quick Overview
Amended Sections 251.72 and 251.80 of the Texas
Alcoholic Beverage Code
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Prior law - subsequent election must be held in previous JP precinct
lines, even if redistricting occurred. Counties had to reconstruct old JP
lines and adapt voting precincts to jurisdictional boundaries that may
have been decades old.
Provides that a subsequent local option election after
justice precinct lines have changed since will only change
the local option status in the territory that is part of the
justice precinct on the date of the subsequent local
option election, and the status of any territory outside of
the current justice precinct will remain unchanged.
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Select Q&A from Outline
(references are to the Texas Election Code)
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Q. How long must a political subdivision be in
existence before it qualifies to exercise local
option? [Sec. 501.022]
A. 18 months. Must include “substantially all of the
area of the city at the time of incorporation. May
include other area subsequently annexed.
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Q. If a city is in the process of annexing territory at the
time an application for a local option petition is filed,
is that territory included in the election? [Sec.
501.035]
A. Any territory that is annexed by a city subsequent to
the issuance of the petition but prior to the local
option liquor election is included in that election and
affected by the election outcome.
Note: the number of signatures needed on the
petition is increased to reflect the additional
population of the area pending annexation.
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Q. Is it necessary to apply for a petition?
A. Yes. Apply, then Petition. There is an
Applicant, then a Petitioner. Terms are not
interchangeable.
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Q. How is an Application for a Petition made?
A. Application (written, signed by 10 or more
registered voters, with proper heading and
issue) must be accompanied by proof of
publication of Notice.
– Proof can be established by submitting original or
copy of newspaper with notice or affidavit of
editor/publisher.
– Recommended: County Clerk/City Secretary has 5
days to approve application.
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Publication of Notice
• Published once in newspaper of general circulation
• Must include:
– The individual or entity that is applying for the petition to
gather signatures for a local option liquor election;
– The type of local option liquor election;
– The name of the territory (e.g., county, justice precinct,
city) in which the petition will be circulated; and
– The name of the person and office with whom the
application will be filed.
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Petition Questions/Issues
 After approval of application, county clerk/city secretary
issues petition pages.
Q. What must be on each page of the petition?
A. Each page must contain:
• The heading and statement [Sec. 501.027, 501.028];
• The type of liquor election [Sec. 501.035];
• The pages have to be serially numbered [Sec. 501.026];
• The actual seal of county clerk [Sec. 501.026]; and
• The date the petition is issued to petitioners [Sec. 501.026].
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Heading: “To Legalize” OR “To Prohibit”
Statement:
The legal sale of beer for off-premise consumption only."
"La venta legal de cerveza para consumo solamente fuera del establecimiento."
"The legal sale of beer."
"La venta legal de cerveza."
"The legal sale of beer and wine for off-premise consumption only."
"La venta legal de cerveza y vino para consumo solamente fuera del establecimiento."
"The legal sale of beer and wine."
"La venta legal de cerveza y vino."
"The legal sale of all alcoholic beverages for off-premise consumption only."
"La venta legal de todas bebidas alcohólicas para consumo solamente fuera del establecimiento."
"The legal sale of all alcoholic beverages except mixed beverages."
"La venta legal de todas bebidas alcohólicas con exclusión de bebidas mixtas."
"The legal sale of all alcoholic beverages including mixed beverages."
La venta legal de todas bebidas alcohólicas incluyendo bebidas mixtas."
"The legal sale of mixed beverages."
"La venta legal de bebidas mixtas."
"The legal sale of mixed beverages in restaurants by food and beverage certificate holders only."
"La venta legal de bebidas alcohólicas mezcladas (cocteles) en restaurantes sólo por los poseedores de un
certificado de comidas y bebidas."
"The legal sale of wine on the premises of a holder of a winery permit."
"La venta legal de vino en establecimientos que pertenecen a poseedores de un certificado de vinería."
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Petition Con’t
• Form must be in English and Spanish
• Maximum required pages = 1 for every 10
registered voters in political subdivision
• Must use SOS Form, unless have received
approval from SOS to use alternate form
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Petition Signatures
Q. How many signatures are required on a petition?
A. 25% of number of voters in the applicable territory
who voted in most recent general election, for a
petition on “the legal sale of wine on the premises
of a holder of a winery permit”
OR
35% of the number of voters who voted in the most
recent gubernatorial election for any other petition
issue.
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Q. Who determines the number of signatures
required?
A. The filing authority (County Clerk or City
Secretary).
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Q. What constitutes a valid petition signature?
A.
For a signature to be valid, it must be accompanied by:
– the signer's printed name;
– the signer's date of birth;
– if the territory from which signatures must be obtained is
situated in more than one county, the county of registration;
– the signer's residence address; and
– the date of signing.
BUT see Case Law
– Fjetland v. Weddington (VR#)
– In re Kevin H. Bell (City)
– Withers v. Commissioners Court of Bandera County (D.O.B.)
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Q. Who is a registered voter for purposes of
signing a petition?
A. A signer must have an effective voter
registration when the signer signs the petition.
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More on Residence Address
Q. What Constitutes a valid residence address?
A. Must use street address if available, but if no
street address then rural route or PO box sufficient
Q. What if voter had moved within the city?
A. The voter’s address on the petition need not be
identical to the registered address, but must still be
within the City/JP/County.
Q. Must address include state or zip code to be
valid?
A. No
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Q. How long may a petition be circulated? [Sec.
501.032, 1.006]?
A. A petition must be filed no later than 60 days
after it is issued. If the 60th day after the petition is
issued falls on a Saturday, Sunday, or legal holiday,
the petition may be timely filed on the next regular
business day. The day after the petition is issued
should be considered as day 1.
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Q. To whom is a completed petition to be submitted?
[Sec. 501.032]
A. Petitions for county or justice precinct local option
liquor elections are to be submitted to the county voter
registrar. For counties that have an elections
administrator, petitions are submitted to the
administrator. Petitions for citywide local option liquor
elections are filed with the city secretary.
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Q. Who is responsible for verifying the signatures on the
petition? [Sec. 501.031]
A. The city secretary is responsible for verifying the signatures
in all city local option liquor elections. The voter registrar is
responsible in county-ordered elections.
• Although the Code does not provide a definition of the
current list of registered voters, our office recommends
that the current list used for verifying signatures should be
the official list that exists on the date that the petitions
were issued to the petitioners.
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Q. Can a statistical sampling method be used
when verifying a local option liquor petition?
[Sec. 501.031(a)]
A. Yes.
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Q. If the petition is not valid, does it still have to be
presented to the city council? [Sec. 501.033]
• Yes. Regardless of whether the petition contains
the required number of signatures, it must be
recorded in the minutes of the commissioner’s
court or city council, as applicable.
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Q. Can a circulator of a petition copy the pages provided to the
circulator by the county clerk or city secretary and fax (or scan and
email) them to individuals registered in the jurisdiction covered by
the election, so that the individuals can sign a page and send the
petition page back to the circulator, by mail or other form of
transmission? [Secs. 501.026 – 501.028, 501.035]
A. No. each petition page must bear the actual seal of the county clerk
or city secretary; the page cannot merely contain a facsimile of the
seal. Circulator will not be able to mail out a petition page to each
voter in the area covered by the election without violating state law.
The county clerk/city secretary will not be able to provide a petition
page for every registered voter, nor will the circulator be able to make
facsimiles of the petition pages, as they will lack the actual seal of the
issuing authority.
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Conducting the Local Option Election
Q. When must a local option liquor election be held?
[Sec. 41.001(a)]
A. On a uniform election date, as specified in Section
41.001(a) of the Code.
NOTE: Counties cannot use the uniform election
date in May of an even-numbered year for this
election.
Q. Who pays for the election?
A. The entity that orders and conducts it.
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Q. When must a local option liquor election be ordered?
[Secs. 3.005, 501.032]
A. The 71st day before election day, for an election to be
held on a uniform election date other than the date of
the general election for state and county officers. Or the
78th day before election day if it is to be held on the date
of the general election for state and county officers.
The first day the county or city must order an election is
at its next regular session occurring 30 days on or after
the petition was filed with the county clerk or city
secretary, as applicable.
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• Q. What must be in the election order? [Sec. 501.034]
1. Whether the election is for the purpose of legalizing or
prohibiting the sale of beverages as set out in the petition.
2. The issue to be voted on (which must be the same as the
issue on the petition).
3. The polling place for each election precinct.
4. For city liquor elections, only the city election precincts
need to be stated in the order.
5. The early voting polling places and polling hours.
6. The early voting clerk’s mailing address to which ballot
applications and ballots voted by mail may be sent.
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Q. What notice must be given for a local option liquor
election? [Sec. 4.003]
A. The notice must be posted on the bulletin board used for
open meetings postings on or before the 21st day before
election day, and must be published at least once in a
newspaper published in the territory covered by the election
(or if there is no newspaper published in the territory, then in
a newspaper of general circulation in the territory).
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Contents of Notice
The notice must include the following information:
1. the type and date of the election;
2. the location of each polling place;
3. the hours the polls will be open;
4. the location of the main early voting polling place;
5. the regular dates and hours for early voting by personal
appearance;
6. the dates and hours of any Saturday or Sunday early voting, if any,
and
7. the early voting clerk’s mailing address.
8. For Cities only, the notice must also identify (by number) which
county voting precincts are contained in all or in part within the
territory of the city. [Section 501.103(b)]
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Results of Local Option Liquor Election
• The preceding status in one jurisdiction is not
changed by a subsequent election in another
jurisdiction.
• City vs JP precinct
• Annexation
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Q. After the election is held, what actions must the governing body,
county clerk or city secretary take? [501.151 - 501.154]
A. On completing the canvass of the election returns, the governing
body must make an order declaring the result of the election.
• In a successful election to prohibit the sale of a category of
alcoholic beverages, the order must state that the sale of the
type(s) of beverages is prohibited effective the 30th day after the
date the order is entered.
– In a successful election to prohibit the sale of a category of alcoholic
beverages, the county clerk or city secretary must publish the order
declaring the result of the election at three public places in the
political subdivision and record the posting of the order in the minutes
of the governing body.
– In a successful election to legalize the sale of a category of alcoholic
beverages, the sale of such beverages is legal upon the entering of the
court’s order.
Not later than the third day after the canvass of the election, the
county clerk or city secretary must certify the results to the Secretary
of State and to the Alcoholic Beverage Commission.
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Q. Is there a limit on the frequency of local
option liquor elections? [Sec. 501.038]
A. Yes. When one of the issues in Sections 501.035
and 501.109 is presented to the voters of a political
subdivision, that identical issue may not be
presented to them again until one year has elapsed.
• See Attorney General’s Opinion No. MW-12
(1979), holding that a ballot proposition may
present the same issue as an earlier proposition
even when one election is an election to legalize
and the other is an election to prohibit.
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Thanks for your attention!
Please let me know if you have
questions.
To find the outline on our website, visit:
http://www.sos.state.tx.us/elections/laws/liquorelections.shtml
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