THE A~OIRNEY GENERAL
ow TEXAS
aoEN L amA.
AX~STIN. TEXAU T'S711
A-RNEY OErummAL
July 10, 1973
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Honorable William J. Benardino Opinion No. H- 59
County Attorney
Montgomery County Re: Local option election
Dear Mr. Benardino:
You have submitted to us the original request you received from
the Honorable Lynn Coker, County Judge of Montgomery County,for your
opinion concerning local option elections; your response to Judge Coker;
and your authorities submitted to us with your request for our opinion.
Based on these instruments it is our understanding that Montgomery
County is divided into four precincts.
Precinct 1 is wet for the legal sale of all alcoholic beverages, in-
cluding mixed beverages, the most permissive status allowed. [Article
666-40 (b) (7), V. T. P. C. ]
Precinct No. 2 is wet for the sale of beer. [Article 666-40 (b) (2)].
On August 5, 1972, an election a.as held under Article 666-40 (b) (7) for or
against the legal sale of all alcoholic beverages including mixed beverages.
The majority cast their votes against the proposition.
The only information given with reference to Precinct No. 3 is that
on April 5, 1972, an election was held in the incorporated city of Magnolia
under Article 666-40, $ (b) (I), for or against the legal sale of beer foroff-
premises consumption only, with a majority of the voters casting their votes
against the propostition. However, Precinct No. 3 is wet for the legal sale
of all mixed beverages.
We have no information concerning Precinct No. 4.
p. 250
Honorable William J. Benardino, page 2 (H-59)
Apparently petitions have been circulated (1) in Montgomery County
requesting the Commissioners Court to call a county-wide election pursuant
to Article 666-40 (b) (7) and pursuant to (2) in Precinct No. 3 for the same
purpose. Your questions concern whether certain precinct voters will be
able to vote in the county-wide election and the effect of the election on the
local option statuts of particular governmental subdivisions should the legal-
ization issue pass or fail.
Question No. 1:
“Due to the fact that Justice Precinct No. 2
voted on this same issue less than a year ago, would
the voters of Precinct No. 2 be able to vote in the
county-wide election? ”
Which political subdivisions can hold local option elections is determined
by Article 16, 5 20, Constitution of Texas, as interpreted in Myers v. Martinez,
320 S. W. 2d 862, (Tex. Civ.App., San Antonio, 1959), err. ref., n. r. e., 326
S. W. 2d 171 (Tex. 1959), where the Court of Civil Appeals said:
0 . . . counties, justice’s precincts and incorporated
cities or towns should be on equal footing, and that by
complying with the provisions of the law either of them
might hold an election at any time to either ‘legalize’
or ‘prohibit’ the sale of alcoholic beverages, in keeping
with the provisions of Sec. 40, art. 666, Vernon’s Ann.
Penal Code. . . . ” (320 S. W. 2d at 866).
The only limitation is that an election for the same purpose in the
same area must not be held oftener than once a year as is provided by
Article 666-32 which reads:
“No subsequent election upon the same issue shall
be held within one year from the date of the last
preceding local option election in any county,
justice precinct, or incorporated city or town. ”
p. 251
Honorable William J. Benardino, page 3 (H-59)
There is no exception either constitutional or statutory that pro-
hibits voters of a precinct who within the last year cast their votes
against the legalization issue to vote on the same issue in a county-wide
local option election. In fact, if only a portion of the county were per-
mitted to vote in the county-wide election, such election would probably
be void. See Patton v. Texas Liquor Control Board, 293 S. W. 2d 99
(Tex. Civ.App. 1956, error ref., n. r. e.).
Thus, under the plain language of the Texas Constitution and Statutes,
the qualified voters resident in Precinct No. 2 are entitled to vote in a
county-wide local option election along with the other qualified voters of
the county.
A,ttorney General Opinions No. WW-945 (1960) and WW-976 (1960)
support the proposition that all eligible voters in Precinct No. 2 would be
able to vote in a county-wide election even though they voted on the same
issue less than one year ago.
Question No. 2:
“If the election on a county-wide basis carries
for the legal sale of all alcoholic beverages including
mixed beverages, would Precinct No. 2 be wet for all
purposes or would the Attorney General’s Opinion No.
286 apply and Precinct No. 2 remain as is? IV
The term “local option” is well understood by the voters of Texas.
A local option election is a clear, valid declaration of the will of the voters.
The Supreme Court in Houchins v. Plainos, 110 S. W. 2d 549(Tex.I,937),held
that the Constitution provides the exclusive means by which the issue of
prohibition or legalization of alcoholic beverages should be decided.
Under Texas case law, a local option law is enforced until it has
been voted out by a majority of the voters of the territory where the law
was originally adopted. Myers v. Martinez, supra; Attorney General’s
Opinion C-681 (1966); WW-945 (1960): WW-976 (1960).
p. 252
Honorable William J. Benardino, page 4 (H-59)
However, under the Constitution and local option statutes, a negative
vote on a legalization issue has no effect. The local option status of the
governmental subdivision remains the same as it was before the election.
See Attorney General’s Opinion No. WW-1104 (1961). It takes a positive
vote in either a legalization or prohibitory election to establish a local
option statuts that can not be changed subsequently except by a majority
of the voters in the same territory. The only prohibitory effect authorized
by statute is that no subsequent election upon the same issue in the same
political subdivision shall be held within one year from the date of the last
preceding local option election, Article 666-32, Vernon’s Texas Penal Code.
In Fox v. Burgess, 302 S. W. 2d 405 (Tex. 1957), the Supreme Court
held that a vote on issue ‘E’ against the legal sale of all alcoholic beverages
would not preclude another election within the same year on a different issue.
Further, Article 666-40 (i). provides:
“No local option election may affect the sale of mixed
beverages unless the proposition specifically mentions
mixed beverages. .In an’y legalization or prohibitory
local option election where any shade or aspect of the
issue submitted involves the sale of mixed beverages,
any other type or classification of alcoholic beverages
which was legalized prior to such election shall remain
legalized without regard to the outcome of said election
on the question of mixed beverages. ”
Since there is no local option status of Precinct No. 2 which would
prohibit the legalization of all alcoholic beverages including mixed bever-
ages on a county-wide basis, the local option status of Precinct No. 2
would be the same as the county until a different result was established
by a subsequent precinct election should there ever be one.
Question No. 3:
“If the Precinct No. 3 election was first and
carried and the county-wide election last, what would
be the status of Precinct No. 3?”
p. 253
Honorable William J. Benardino, page 5 (H-59)
Since the issue of the legalization of all alcoholic drinks including
mixed drinks, Article 666-40 (b) (7), has not been previously presented
in Precinct 3 and assuming all the statutory and constitutional provisions
are complied with, Precinct No. 3 would take on new local option status
independent of the county. As discussed in Question No. I, the voters in
Precinct No. 3 would be entitled to vote in the county-wide election. The
county-wide election is constitutionally and statutorily authorized and
should the election presenting the legalization issue containing Article
666-40 (b) (7) carry, the precinct would take on the status of the county
until the qualified voters of Precinct 3 elect to establish a different status.
Question No. 4:
“If either or both elections carry, will the
incorporated city of Magnolia be wet for everything
except beer off premises? ”
As discussed under Question 2, a negative vote in a legalization election
establishes no local option status nor does it have any prohibitory effect. Just
as Precinct No. 2 and 3 would take on the status of the county, there being no
binding local option status prohibiting such an effect, so would the city. Of
course, the city in a subsequent election could change its local option status
imposed by the county election by electing to do so by a majority vote.
Question No. 5:
“If the election on a county-wide basis fails,
would Precinct No. 1 be dry for all purposes? ”
Again, as previously discussed, the local option status of the county,
justice precincts or incorporated city or town can only be changed by an affirm-
ative vote of the majority of the people within the political subdivision. A “no”
vote has no effect and the county and justice precinct and city would retain the
same local option status existing before the election. The only way Precinct i’s
local option sfatus, “wet for the legal sale of all alcoholic beverages inc,luding
mixed beverages, ” could be changed would be for the voters in that precinct to
change the status.
p. 254
Honorable William J. Bena*di*o, page 6 (H-59)
It has been called to our attention that in Attorney General Opinion
No. H-34 (1973) it was stated, contrary to what we have said above, that
a negative vote on a “for” election will render the previously wet areas
dry. We were incorrect and to that extent Opinion H-34 is hereby modified.
SUMMA,RY
Where there is a county-wide local option
election, it is unimportant that certain precincts
had had such elections within one year. All areas
of the county participate in the election. A negative
vote on the election would not affect those areas of
the county which were already wet. An affirmative
vote would render the entire county wet. However,
the voters of any proper area could vote their area
dry as a subsequent election for that purpose.
Very truly yours,
Attorney General of Texas
APPR(bVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 255