,
TEXEA'PI'QENEY GENERAL
OF EXAS
Honorable G. L. Kelly, Jr. Opinion No. C-681
County Attorney
County of Bastrop Re: When a smaller ent1t.vhas
Bastrop, Texas voted “dry” under a prior
local option election and
has been consolidated Into
a "wet" entity, a Justice
Precinct; and an applica-
tion has been presented
to the County Clerk for a
petition for a local op-
tion election to legalize
the sale of all intoxicating
liquors In the “dry” area
only, Is it necessary for
the election to be held for
the entire Justice Precinct
as it now exists, or only
for the lesser entity, i.e.
the smaller prior precinct
which is dry and a related
Dear Xr. Kelly: question.
Your letter requesting an opinion of this office reads
as follows :
Vhls Is a request for an Attorney Gon-
eral*s Opinion concerning Art. 666-32 of
the Texas Penal Code, as amended, speclf';i-
tally concerning Local Option Elections un-
der the Texas Liquor Act.
“Prior to 1948, this County was co osed
of eight (8) Justice Precincts. In 19 $8
these eight were consolidated into four (4)
Justice Precincts.
“Prior to 1948, one of the Justice Pre-
cincts which Is new consolidated into a
larger Precinct, voted ‘dry! and exlnts
presently as such. The remainder of the
present Justice Precinct (and the larger
portion, axea and population wise) Is
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Honorable G. L. Kelly, Jr., Page 2 (C-681)
'wet'. Application Is being made under
the above quoted Act for a Petition for
a Local Option Election to legalize the
sale of all alcoholic beverages In the
dry area, It being the Intent only to af-
fect the area now 'dry' and not to affect,
in any manner, the rest of the presently
existing Justice Precinct which Is 'wet'.
Inasmuch as the subdivisions listed In
said act are limited to 'county,
recinct or Incorporated town or wc y
e specific areas
!k--r- to which an election
can be defined, this is the question:
"QUESTION: When a smaller entity has
voted Idry' under a prior local option
election, and has been consolidated Into
a predominantly 'wet' larger entity, a
Justice Precinct; (which Is the smallest
subdivision in the Texas Liquor Control
Act in rural areas) and an application has
been presented to the County Clerk for a
Petition for a local option election to
legalize the sale of all Intoxicating
liquors in the 'dry' area only, Is It
necessary for the election to be held for
the entire Justice Precinct as it now
exists, or only for the lesser entity,
I.e. the smaller prior precinct, which is
'dl-y'?
"A second question exists also. This
made existent since our Voter Registration
Law of 1966. The Local Option Election
portion above quoted states that If a peti-
tion is issued, It requires 25s of the
qualified voters of said subdivision (what-
ever the subdivision may be, according to
your answer to the Question above.) before
an election can be ordered by the Commls-
sioners Court. It further states 'taking
the votes for Governor at the last pre-
ceding General Election at which preslden-
tlal electors were elected as the basis for
determining the qualified voters! In said
subdivision. Obviously, the number of
Oquallfled voters' et said preceding 'Oan-
era1 Election' will not be the same as the
'qualified voters' under the Voter Regls-
tratlon Law of 1966.
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Honorable G. L. Kelly, Jr., Page 3 (C-681)
"QUESTTON: Which criteria should be used
in determining whether 25% of the qualified
voters of a subdivision, In a local option
election have signed a petition for such an
election: 1) The votes for Governor at the
last preceding General Election at which
presidential electors were elected; or, 2)
The qualified voters who have qualified to
vote by registerin under the Voter Regls-
tration maw of 1962 ?'
Attorney General's Opinion No. o-6917 (1946) states
in part as follows (a copy of which is attached hereto):
"It is a well settled rule under the
Texas cases that whenever a local option
law Is once legally put into operation in
a given territory, it must remain In force
untll It has been voted out by the voters
of the territory where such law was origl-
nally vitalized. See Ex Parte Pollard,
103 S.W. 878, and Walllng vs. King, County
Judge, 87 S.W. (2d) 1074. Article XVI,
Section 20 of the Texas Constitution Dro-
vldes for elections only In the counti
tlce's precinct -or incorporated --
town
"Having determined that the exclusive
method of changing the status of a ldryl
'wet' area is by an election
izoceed to the question of the ;orrnzFwthe
ballot to be used In an election In an
incorporated city part of which Is 'wet'
and part of which is 'dry'.
"Pursuant to Section 20 of Article XVI
of the Texas Constitution, previously set
forth In this opinion, the .,Forty-fourth
Legislature In 1935 passed the Texas Ll-
quor Control Act which Is to be found In
Articles 666 and 667 of Vernon's Annotated
Penal Code, 1925. Article 666-23 deflnes
a 'dry area' and a 'wet area' as follows:
beverages meen prohibited by valid local
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Honorable G. L. Kelly, Jr., Page 4 (C-681)
optlon elections held under the laws of
the State in force at the time of the
taking effect of Section 20, Article XVI,
Constitution of Texas in the year 1919.
It likewise shall mean and refer to any
such areas where sale of such alcoholic
beverages shall be prohibited under the
terms of this Act.
"iThe term "wet area" shall mean and
refer to all other areas of the State.'
(Emphasis added)
"An examlnatlon of the above under-
scored language In Article 666-33 (sic)
forces us to the conclusion that the de-
termlnatlon of the status of one of the
polltlcal rrubdlvlslonsmentioned In
Article XVI, Section x) of the Texas Con-
stitution depends upon a consideration of
the status of the county, justice pre-
cinct, or inaorporated town or city as a
whole, and that one of the above subdlvl-
alons may not be part 'dry' and part 'wet'
:;&the purposes of a local option elec-
. It 18 our further opinion that If
any part of the subdivision Is 'wet' then
the entire subdlvlslon Is *wet' for QUr-
poses of a local option election. The
City of Pasadena, despite the fact that
the entire city was originally a 'dry
area'. Is now a *wet area' by virtue of
the fact that liquor may now be legally
sold In a portion of the lncgrporated
city."
In view of the above Attorney General's Opinionand
Patton v. Texas Liquor Control Board. 293 S.U.2d 99 (Tex.
CIY.ADD.
-__-.___ 1956
___~ error
----~ ref.
~-~. ~~_~.~.,. I. If
n.r.e. - 'Sls-th6oplnlok of
tlNs office that It Is necessary for the election to be
held for the entire Justice Precinct as it now exists.
It Is further the opinion of this office that for
the limited purposes of a local option election, the Jus-
tice Precinct as It presently existe shall be considered
as a "wet area" within the meaning of the Texas Liquor
Control Act.
-3277-
,
Honorable 0. L. Kelly, Jr., Page 5 (C-681)
In anawer to your second question, Attorney General’s
Opinion No. C-332 holds that the language of Article 666-
32, Vernon’s Penal Code, which Qrescrlotisthe form of a
petition for a local option election, Is mandatory, not di-
rectory.
Ye here reaffirm and concur in the correctnese of At-
torney General’s Opinion No. C-332 (1964)and the necessary
implications of’such opinion. Article 666-32 specifically
sets forth the criterion to be followed in determining the
qualllled voters In the county, justice18 precinct or in-
COrpOrated town or city and is not affected by the Voter
Registration Law of 1966.
It should be noted that the State Legislature may
aet any reasonable standard that must be met in any Qeti-
tlon calling for an election. In Article 666-32, Vernon’8
Penal Code, the criterion to be followed 18 25 per cent of’
the qualified voters in the jueticels precinct ‘taking the
votes for Governor at the last preceding General Election
at which presidential electors were elected a8 the basis
for determining the qualified voters In such . . . justice’s
precinct. . . .”
SUMMkRY
When a prior Justice Precinct has
voted “dry” under a prior local option
election and has been consolidated into
a “wet” Justice Precinct, In order for
the Frlor Justice Precinct to become
“wet it Is necessary for an election
to be held for the entire Justice Pre-
cinct as It now exists; the criterion
to be used In determining whether 25s
of the qualified voters have signed a
petition, For a local option election,
1s the votea cast for Governor at the
last preceding General Election at
which QPXidential electors were elect-
ed. Article 666-32, V.P.C.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
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Honorable G. L. Kelly, Jr., Page 6 (C-681)
Assistant'kttorney General
DHC/'dt
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Mary K. Wall
John Reeves
Phllllp Crawford
Ronald Luna
APPROVED FOR THE ATTORNEY GENERAL
BY T. B. Wright
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