ATTORSICX- GlcX~lxAr.
August 25, 1969
Honorable William M. Day Opinion No. M-457
County Attorney of Calhoun County
Calhoun County Courthouse Re: Status of sale or
Port Lavaca, Texas 77979 dispensing of alco-
holic beverages
Precinct No. 3 of
Calhoun County, Texas,
under local option
Dear Mr. Day: elections.
You requested an opinion from this Office concerning the
captioned question and furnished us with a history of local
option elections in Calhoun County supplied by the County Clerk
of Calhoun County. A letter submitted by you subsequent to
your original request states a6 follows:
"I am requesting that you base your opinion
upon the assumption that all of these local option
elections as stated in the County Clerk's letter,
are legal and valid."
For conciseness we have abstracted and numbered the
numerous elections and shall hereinafter refer to each by
its designated number. The dates of the filing of the peti-
tions and canvassing of returns have been deleted. In all
instances hereinafter, "area" will designate the precinct(s)
within or the County of Calhoun, "date" will refer to the
election date, and 'vote" will refer to the results of said
election.
The elections held in Calhoun County or precinct(s)
thereof furnished are as follows:
(1) Area: Justice Precinct No. 3
Date: January 3, 1914
Vote: For Prohibition - 35
Against Prohibition - 0
(2) Area: County of Calhoun
Date: October 12, 1915
Vote: For Prohibition - 280
Against Prohibition - 279
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Honorable William M. Day, page 2 (M-457)
(3) Area: County of Calhoun (countywide)
Date: December 20, 1915
Vote: For Prohibition - 296
Against Prohibition - 322
(4) Area: Justice Precincts Nos. 1, 3 and 5
Date: December 14, 1916
Vote: For Prohibition - 300
Against Prohibition - 274
(5) Area: County of Calhoun (countywide)
Date: October 28, 1933
Vote: To Permit Sale of Beer - 267
To Prohibit Sale of Beer - 11.8
(6) Area: Justice Precincts Nos. 1, 3 and 5
Date: October 28, 1933
Vote: To Permit Sale of Beer - 195
To Prohibit Sale of Beer - 94
(7) Area: County of Calhoun (countywide)
Date: December 28, 1935
Vote: For Legalizing Sale of All Liquors - 192
Against Legalizing Sale of All
Liquors - 97
(8) Area: Justice Precincts Nos. 1, 3 and 5
Date: December 28, 1935
Vote: For Legalizing Sale of All Liquors - 124
Against Legalizing Sale of All
Liquors - 65
(9) Area: Justice Precinct No. 3
Date: July 9, 1960
Vote: For the Legal Sale of Beer for Off-
Premises Consumption Only - 180
Against the Legal Sale of Beer for Off-
Premises Consumption Only - 238
(10) Area: Justice Precinct No. 3
Date: June 6, 1964
Vote: For the Legal Sale of Beer for Off-
Premises Consumption Only - 194
Against the Legal Sale of Beer for Off-
Premises Consumption Only - 278
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Honorable William M. Day, page 3 (M-457)
(11) Area: Justice Precinct No. 3
Date: July 19, 1966
Vote: For the Legal Sale of Beer - 148
Against the Legal Sale of Beer - 293
You further informed us that Precinct No. 3 has remained
constant in land area at all material times herein.
Although we may assume compliance with certain procedural
safeguards in the elections presented for consideration, we
cannot disregard substantive statutory requirements, including
time limits imposed between local option elections and the
combination of political subdivisions in voting in local option
elections.
With reference to elections numbered above as (I), (2),
(3) and (4) we have reached the conclusions which follow:
Election 1 established prohibition in Precinct No. 3 and
2 . if valid, did not change this status, but estab-
Election rl
lished prohibition in the entire County of Calhoun. Resort
must be had to Article 5724, Vernon's Sayles' Texas Statutes
of 1914, in order to determine the validity of Elections (2),
(3) and (4), which Article provided, in part, as follows:
. . .No election. . .shall be held within
the same prescribed limits in less than two
years after an election. . .' Acts 29th Leg.
1905, ch. 158, p. 378.
Further consideration must be given to the exception provided
in Article 5726, Vernon's Sayles' Texas Statutes of 1914,
which provided, in part, as follows:
II
. . .nor shall the holding of an election
in a justice's precinct in any way prevent
the holding of an election immediately there-
after for the entire county in which the
justice precinct is situated; but, when pro-
hibition has been carried at an election for
the entire county, no election on the question
of prohibition shall be thereafter ordered in
any justice precinct, town or city of said
county until after prohibition has been de-
feated at a subsequent election for the same
purpose, ordered and held for the entire county,
in aczordance with the provisions of this title
* . . Acts 23rd Leg. 1905, ch. 45, p. 48, as
amended. (emphasis added)
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Honorable William M. Day, page 4 (M-457)
Under the exception contained in Article 5726, Election (2)
was valid; however, Election (3) is invalid in that it does
not fall within said exception. Election (4) is invalid be-
cause of the express prohibition contained in Article 5726.
The repeal of National Prohibition in 1933 and the
passage by amendment of Article XVI, Section 20 of the Con-
stitution of Texas, operated to restore to each county or
'politicalsubdivision its former status relative to prohibit-
ing the sale of intoxicating beverage as it existed before
the adoption of the amendment. Rockholt v. State, 136 Tex.
Crim. 479, 126 S.W.2d 488 (1939).
With reference to elections heretofore listed as numbers
(5) and (6) we have reached the following decision. It is
unnecessary to discu,ssthe effect of Election (5) upon the
status of Precinct No. 3 in that the voters of Precinct No.
3 voted against the sale of beer in Election (11) and could
'validly do so as such Precinct was on an equal footing with
Calhoun County as to prohibiting the sale of alcoholic bever-
ages at the time of Election (11). Myers v. Martinez, 320
S.W.2d 862 (Tex.Civ.App. 1959, error ref. n.r.e,). C
Attorney General Opinion Nos. C-715 (1966) and WW-g76f(lg60).
Whether Justice Precincts Nos. 1, 3 and 5 combined as a unit
to bind all jointly, or if each voted as a separate unit in
Election (6), would be immaterial since Precinct No. 3 voted
against the legal sale of beer in Election (11).
With reference to elections listed above as nu;rn;r;,i:)
and (81, we have concluded as hereinafter stated.
that Calhoun County voted to legalize the sale of all liquors
in Election (7) would not repeal prohibition in Justice
Precinct No. 3. Cf Coker v. Kmeicik, 87 S.W.2d 1076 (Tex.
Comm.App. 1935). Rockholt v. State, supra; Attorney General
Opinion No. v-262 (1 4 ) From all appearances, Precincts
Nos. 1, 3 and 5 comb?nzd'to vote as a unit in Election (6)
since other elections are designated as "countywide" and
"Precinct No. 3”. With this assumption, we must conclude
Election (6) is invalid. Combination of precincts was permis-
sible under former Article 5715, Vernon's Sayles' Texas Civil
Statutes of 1914; however, there was no provision in the 1933
Amendment to Article XVI, Section 20 of the Constitution of
Texas which allowed any two or more of any political sub-
divisions of a county to combine and vote, Our ultimate con-
clusion herein is based on the foregoing assumption. It
should be observed here that if Election (8) concerns separate
elections by each precinct in question, our conclusion would
be different and we would be of the opinion that Precinct No.
3 would be 'wet"
~ for the sale of "liquor", as that term is
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. .
Honorable William M. Day, page 5 (M-457)
defined in Article 666-3a, Subsection (5), Vernon's Penal
Code.
With reference to the remaining elections numbered (q),
(10) and (ll), the 1935 Amendment to Article XVI, Section 20
of the Constitution of Texas placed counties and political
subdivisions on equal footing in local option elections.
Myers v. Martinez, supra. It is n&necessary to discuss
the effect of Elections (9) and (10) because Election (11)
prohibited the sale of beer in Precinct No. 3 of Calhoun
County. Election No. 11 was valid, in that Precinct No, 3
was a dry precinct at the time of the elections Nos. (g),
(10) and (ll), as Election No. 1 voted for prohibition, and
the subsequent Election Nos. (1) through (8) did not affect
such dry status.
SUMMARY
Under the factual matters presented, the sale
or dispensing of any type of alcoholic beverage in
Precinct No. 3, Calhoun County, is prohibited by
vote under local option elections.
Ver&?ruly yours,
General of Texas
Prepared by Jay Floyd
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice Chairman
John Banks
Neil Williams
Tom Bullington
Roland Allen
W.V. GEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
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