Texas county comes up dry, state supreme court rules

David Yates Sep. 3, 2008, 9:44am

A handful of Dallas County residents will continue to have to drive out of their way to wet their whistles, as the Texas Supreme Court has denied their petition for a writ of mandamus forcing the Dallas County Commissioners Court to call an election to change a justice precinct from dry to wet.

The opinion, authored by Chief Justice Wallace B. Jefferson, was issued Aug. 29.

"Both our state and nation have struggled with regulating the sale of alcoholic beverages, vacillating between outright prohibition and widespread legalization. In parts of Texas, the debate rages on," the opinion states.

The residents sought an order requiring the Dallas County Commissioners Court to call an election to change a justice precinct from dry to wet.

"Because that precinct's territory differs from that of the justice precincts that formerly voted dry, however, such an election would be improper," the court wrote. "We deny the petition for writ of mandamus."

Relators Calla Davis, Melvin Hurst III, and Ann B filed the writ in hopes of initiating local option elections in Dallas County's dry areas to legalize the sale of alcoholic beverages, court papers show.

"They contend the Dallas County Elections Department told them that current Precinct 3 included those areas within Dallas County that were dry (presumably, old Precincts 2 and 3), and the Secretary of State's office had advised that a local option election to change the status of those precincts should begin with petitions designated for current, rather than historical, precincts," the opinion states.

"Accordingly, qualified voters of Dallas County applied for a petition for a local option election to legalize the 'sale of beer and wine for off-premise consumption only . . . [i]n the Justice of the Peace Precinct 3, Dallas County, Texas.' The Elections Department issued the petitions in October 2006, and they were circulated, signed, and returned.

"The Elections Administrator certified that the petitions satisfied all statutory requirements, and the Elections Department recommended that the Commissioners Court order a local option election to be held within Precinct 3's current boundaries. The Department also noted that Dallas County would be required to cover the cost of the election, estimated to be $203,000. The matter was placed on an addendum to the February 13, 2007 Commissioners Court agenda."

At the February 13 meeting, the county attorney informed the commissioners that old Precinct 2 had voted dry and that the law therefore required the election to be called in that historical precinct. The commissioners discussed whether to order the election under the boundaries suggested by relators-in new Precinct 3-or to instead set the boundaries of old Precinct 2 and then order an election only after being presented with petitions signed by voters in the old precincts, the opinion states.

The county attorney advised that the latter course would be the more prudent. After an additional presentation by the Public Works Department (which, along with the Elections Department, drew maps delineating the boundaries of old Precinct 2, old Precinct 3, and current Precinct 3), the Commissioners Court 'denie[d] the Dallas County Elections Department's request to order a Local Option Election . . . in [new] Precinct 3 and establishe[d] the boundaries of [old] Precinct 2 as of March 8, 1877 for the purpose of a local option election.'"

The relators contended that the Dallas County Commissioners Court is required by law to order a local option election in Justice Precinct 3, and sought a writ directing the commissioners to do so, court documents say.

They argued that once the elections administrator certified the petitions and the Elections Department recommended that the Commissioners Court order the local option election, the court had a ministerial duty to do so, and its refusal warrants mandamus relief.

The Commissioners Court countered that it was not presented with a "proper petition" and had no duty to order the election, the opinion states.

"� The Commissioners Court was not presented with proper petitions for old Precincts 2 and 3, so it had no duty to order a local option election for those historical precincts," the opinion states.

"If the Commissioners Court refused, upon proper request, to fix the boundaries of historical precincts, relators could seek mandamus relief. In this case, however, the commissioners fixed those boundaries. Relators have not shown that section 251.80 is unconstitutional as applied to them nor that they are entitled to mandamus relief.

"We deny the petition."

The relators are represented in part by attorney Mr. Craig T. Enoch.
Dallas County Commissioners were represented in part by attorneys Robert L. Schell, Grant Hugh Brenna and Craig M. Watkins.

The case was submitted Feb. 26, 2007.

SC No. 07-0147

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