Untitled Texas Attorney General Opinion

. r THE ktTl.ORNEY GENERAL OF TEXAS AUSTIN. TEXAS 78711 WAGGONER CARTR .4Tr”YXEx (IBSERAL April 12, 1966 Honorable John Lawhon Opinion NO. c-658 County and District Attorney Denton County Re: When the commissioners Denton, Texas court has enlarged a wet justice precinct by add- ing additional territory to same which was in a dry precinct, whether the territory within the original wet precinct remains wet, and related Dear Mr. Lawhon: questions. Your letter requesting 8.nopinion of this office reads as follows: "Prior to 1935 all Denton County was dry. In September of 1935, Justice Pre- cinct Two 1n Denton County held a local option electlon. The area voted to allow the sale of beer. . . . Since the Justice Precinct election of September, 1935, there have been no other elections held concerning local option for liquor In the area In question. In 1948, the Commla- sloners Court of Denton County, reduced the number of Justice precincts from 8 to 5. As a result the territorial bound- aries of old Justice Precinct Two were enlarged in lg@ to Include old Justice Precinct Two plus additional territory. Recently, a Denton County citizen living wlthln the boundaries of old Justice Pre- cinct Two applied for an application to obtain a beer license. Questions: "1. Is the territory within old Justice Precinct Two now a wet area? "2. If yes, does the wet area ln- elude only the territory boundaries of old Justice Precinct Two?" -3179- ” . Honorable John Lawhon, Page 2 (C-658) The Court in Bullington v. Lear, 230 S.W.2d 290, 292 (Tex.Clv.App. 1950, no history), announced the followlng rule: It has been held that It Is beyond the power of the commissioners court to so change the boundary of a justice precinct as to repeal a law passed by a local option elec- tion In favor of or against prohibition. Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d 549; Jackson v. State, 135 Tex.Cr.R. 140, 118 S.W.2d 313. "This election was a clear, valid declara- tion of the will of the voters as to which under the Constitution and statutes they had a right to authorltlvely express their will. Ry virtue of this election, Justice Precinct No. 2 of Crane County as it existed on August 3, 1949, the date the petition was filed with the County Clerk and on August 8, 1949, the date the Com- missioners Court ordered the election, became dry." The Court In the case of Powell v. Smith, 90 S.W.2d 942, 944 (Tex.Clv.App. 1936, no history), announced the fol- lowing rule: 1, 'Where local option was adopted In any glcen locality, by the majority of the voters therein, It will remain In force un- til the qualified voters of such particular subdivision decide otherwise In an election held for that purpose. . . .I' The Texas Supreme Court in Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d 549 (1937), announced the rule that an orlgl- nal territory that was dry remained dry until there was an election In the same territory to vote on the same question. The Court stated at page 555: I, As to the case at bar, we hold that'whlie It Is true that the City of Hous- ton Heights has long since ceased to exist a8 a municipal corporation, still It yet exists for the purpose of holding a local option election to vote on the question of making It lawful to sell Intoxicating liquors within the area originally voted dry," -3180- . . Honorable John Lawhon, Page 3 (C-658) Based upon the above authorities, It la the opinion of this office that the answer to the two questions should be as follows: 1. The original territory within the old Justice Precinct Two 1s still wet for the limited purpose of the sale of beer for on-premises consumption. 2. The wet area Includes only the terrl- torlal boundaries of old Justice Pre- cinct Two. Consistent with this are Attorney General's Oplnlons Nos. O-297, O-6880 and WW-1149. Since this office received the above opinion request, we received a telephone call from your office in which you ad- vised us that the following additional facts would be relative In answering the opinion request: "On August 24, 1935, the State Constl- tutlon legalized the sale of beer. , . . "On September 21, 1935, the electors In Justice Precinct No. 2 In a local option election had before them the following two proposltlons: 1111 . For the sale of beer containing not more than 3.2 percent (3.2%) of alcohol by weight. n'2. Against the sale of beer containing not more than 3.2 percent b;ZLt.~f alcohol by "The people voted for the sale of 3.2 percent beer. It was passed by the people on September 21, 1935. "Question: If the area Is wet, what percentage of alcohol may the beer con- tain by weight, 3.2 percent or 4 percent?" -3181- Honorable John Lawhon, Page 4 (c-658) In 1933, Congress modified the Volstead Act to permit the sale of beer. On August 26, 1933, the voters of Texas adopted an amend- ment to the State Constitution legalizing the sale of beer con- taining not more than 3.2 percent alcohol by weight In cities, counties or political subdivisions thereof In which the qualified voters voted to legalize the sale of beer. In 1933, the Regular Session of the Forty-Third Le lsla- ture enacted House Bill No. 122, Chapter 116, Secti.onl(b7 , which provides: "(b). Upon and after the effective date of this Act (as provided In subsections (c) and (d) of Section 28 of this Act) In all counties In the State of Texas and In all political subdivisions thereof wherein the sale of Intoxicating liquors had been pro- hibited by local option election held under the laws of the State of Texas and In force at the time of taking effect of Section 20, Article 16 of the Constitution of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange In any such county or any such political subdlvlslon of said county any vlnous or malt liquors containing In excess of one per cent (1s) alcoholic con- tent by volume, unless and until a majority of the qualified voters in said county or political subdivision thereof voting at an election held for such purpose shall deter- mine It to be lawful to manufacture, sell, barter or exchange In such county or In such political subdivision of said county any vlnous and malt liquors containing not more than three and two-tenths per centum (3.2s) alcoholic content by weight;" The election held on September 21, 1935, In Justice Pre- cinct Two of Denton County, as described previously, was ap- parently in accordance with House Bill No. 122, Acts of the Forty-Third Legislature, 1933, and would legalize the sale of beer containing not more than 3.2 percent alcohol by weight in Justice Precinct Two. On December 5, 1933, the Twenty-First Amendment to the Federal Constitution, which repealed the Eighteenth Amendment, became effective. -3182- Honorable John Lawhon, Page 5 (c-658) On August 24, 1935, the voters of Texas adopted an amend- ment of Article 16, Section 20 of the State Constitution re- pealing State prohibition. House Bill No. 122, ,Acts of the Forty-Third Legislature, 1933, was repealed by House Bill No. 77, Acts of the Forty- Fourth Legislature, 1935, Second Called Session, and the rela- tive portions of such Act reads as follows: "Article II, Section 1. "Manufacture, sale and distribution of beer authorized; local option; 'beer' de- fined. (a) The manufacture, sale and dls- trlbution of beer containing one-half (l/2) of one per cent (1%) or more of alcohol b volume and no more than four per centum (J $) of alcohol by weight is hereby authorized wlthln the State of Texas. "Unless otherwise herein specifically provided by the terms of this Act, the manufacture, sale and distribution of beer, as hereinafter defined, shall be governed exclusively by the provisions of Article II of this Act, Chapter 116, Acts of the Regular Session, Forty-Third Legislature, and all amendments thereto, are hereby repealed. "(b) It shall continue to be unlawful to manufacture, sell, barter or exchange In any county, Justice's Precinct or lncor- porated city or town any malt liquor con- taining In excess of one-half (l/2) of one per cent (1%) alcohol by volume except In counties, Justice's Precincts or incorpora- ted cities or towns wherein the voters thereof had not adopted prohibition by local option elections held under the laws of the State of Texas and In force at the time of taking effect of Section 20, Article 16 of the Constitution of Texas In 1919; except that In counties, Justice's Precincts or Incorporated cities or towns wherein a figal- ma or lze the sale of beer In accordance with the local option provisions of Chapter lib, Acts of the Regular Session of the Forty- -31 83- Honorable John Lawhon, Page 6 (c-658) held in-any county, Jkticefs Precinct or incorporated city or town within this State In accordance with the provisions of Sec- tion 32 to 40 Inclusive of Article I of this Act, for the purpose of determining from time to time whether the sale of beer shall be prohibited or legalized within the prescribed limits; and it shall be un- lawful to sell beer in any county, Justice's Precinct or Incorporated city or town where- in the same shall be prohibited by local option election, and lawful to sell beer under the provisions hereof In any county, Justice's Precinct, or Incorporated city or town wherein the sale of beer shall be legalized by local option election. "(c) The word 'beer' as hereinafter used in this Act and for the purpose of this Article, shall mean any malt beverage containing one-half (l/2) of one per cent (1%) or more of alcohol by volume and not more than four per centum (4%) of alcohol by weight." (Emphasis added) House Bill No. 77 was approved by the Governor on November 15, 1935, and became effective upon the same date. Therefore, It Is the opinion of this office that the above quoted language from House Bill No. 77, Acts of the Forty-Fourth Legislature, 1935, Second Called Session, auth- orized the sale of any malt beverage containing one-half (l/2) of one per cent (1%) or more of alcohol by volume and not more than four per centum (4%) of alcohol by weight In any area in which the sale of any malt beverage containing not more than 3.2 per cent (3.2%) of alcohol by weight was then authorized. Assuming the validity of the election held In Justice Precinct 2 in Denton County on September 21, 1935, beer contalnlng not more than four per cent (4s) of alcohol by weight may now be sold in such precinct. SUMMARY When the Commissioners Court enlarged Justice Precinct Two In 1948, the same having in 1935 voted to legalize the sale -3184- . ‘ Honorable John Lawhon, Page 7 (c-658) of beer, by adding additional territory which was previously In a dry Justice Precinct, only the orlglnal territorial boundaries of Justice Precinct Two re- mained wet for the limited purpose of the sale of beer not in excess of 4.0 per cent by weight of alcohol by virtue of the provisions of House Bill No. 77, Forty-Fourth Legislature, Second Called Session (1935). Very truly yours, WAGGONER CARR Attorney General of Texas Assistant Attorney General DHC/dt APPROVED OPINION COMMITTEE: W. V. Geppert, Chairman Gilbert J. Pena Mary K. Wall Philllp Crawford W. 0. Shultz APPROVED FOR THE,,ATTORNEYGENERAL By T. B. Wright -3185-