August 3, 1961
Honorable Doug Crouch Opinion No. WW-1104
District Attorney
Tarrant County Re: In an area which has le-
Fort Worth, Texas galized the sale of beverages
containing alcohol not in
excess of fourteen per centum
(14%) by volume can a "pro-
hibitory" election be called
by the presenting of any issue
other than those set out as
(ml, (n), (0) and (p) in Art.
Dear Mr. Crouch: 666-40 of the Penal Code?
You have requested an opinion of this Department on the
above subject matter on issues involving local option elections.
Your letter reads in part as follows:
"(1) In an area which has legalized the
sale of beverages containing alcohol not in
excess of fourteen per centum (14%) by volume
can a 'prohibitory' election be called by the
presentin of any issues other than those set
out as (m and (p) in Art. 666-40
of the Pe!~l(~kebo)
"(2) In an area where the sale of beverages
containing alcohol not in excess of fourteen per
centum (14%) by volume has been legalized would
not a petition for an election on the issues of
'for the legal sale of all alcoholic beverages'
and 'against the legal sale of all alcoholic
beverages' be construed exclusively as a 'le-
galizing' election so that an affirmative %te
would result in increasine leealiaation and a
ne ative vote in retaininz the status quo?
F---
Emphasis added.)
"My questions are prompted by a situation which
has arisen in Tarrant County. On about September 10,
1960, the voters of Precinct 7 in this county at an
Honorable Doug Crouch, Page 2 (w-w-11041
election called for that purpose pursuant to all
statutory provisions voted to legalize the sale
of beer and wine for off-premises consumption only.
Residents of the precinct seeking the prohibitory--
nota legalizing -- election have presented to the
County Judge and Commissioner's Court of Tarrant
County a petition for an election upon the issues
of 'for the legal sale of all alcoholic beverages'
and 'against the legal sale of all alcoholic
beverages."' (Emphasis added,)
The uestions presented are controlled by the provisions
of Articles %66-32, 666-35 and 666-40 of Vernon's Penal Code which
were passed pursuant to Article XVI, Section 20 of the Constitution
of Texas.
Article 666-40 is the law controlling the submission of
issues in an election of this kind, and we agree with your analysis
of this statute which we quote from your letter as follows:
"'In areas where any type or classification
of alcoholic beverages is prohibited and the issue
submitted pertains to lepalization of the sale of
one or more such prohibited types or classifications,
one of the following issues shall be submitted:
"(a) 'For the legal sale of beer' and 'Against
the legal sale of beer.'
"(b) 'For the legal sale of beer for off-
premise consumption only' and 'Against the legal
sale of beer for off-premise consumption only.'
"(Cl 'For the legal sale of beer and wine'
and 'Against the legal sale of beer and wine.'
"(d) 'For the legal sale of beer and wine
for off-premise consumption only' and 'Against
the legal sale of beer and wine for off-premise
consumption only.'
beveran!;i 'For the legal sale of all alcoholic
R and 'Against the legal sale of all
alcoholic beverages,'
"(f) 0 0 c."
*- .
Honorable Doug Crouch, Page 3 (ww-1104)
"The second portion of the statute is to
be applied to those areas where the sale of &
alcoholic beverages has previously been legalized
and sets out issues (g) through (1). The third
portion of the statute is that applicable to
Precinct 7 of Tarrant County, quoted above, and
setting out issues (ml through (p). The fourth
portion of the statute is applicable only to areas
where the sale of beer containing alcohol not ex-
ceeding four per centum by weight has been legal-
ized and sets out issues (q) and (r). The first
part of the statute, therefore is legalizing --
the other three parts are prohibiting. The legal-
izing issues are Peneral -- the prohibitory issues
are specific and must be worded 'to suit nre-exist-
inz situations in the area involved.'
"The issue presented in the petition to the
County Judge and Commissioners' Court of Tarrant
County -- ' for the legal sale of all alcoholic
beverages' and 'against the legal sale of all
alcoholic beverages' -- is identical with issue
(e) in Part One of the statute and is therefore
available as a legalizing issue. The same phrase-
ology is also contained in the second part of the
statute as issue (k) and is, therefore, available
as a prohibitory election issue but only in areas
'where the sale of all alcoholic beverages has been
legalized.' That is n,otthe situation in Precinct
7 of Tarrant County. Obviously if it had been the
intent of the Legislature to permit the issue --
'for the legal sale of all alcoholic beverages' and
'against the legal sale of all alcoholic beverages'
-- to be used in an area where the sale of beverages
containing alcohol not in excess of fourteen per
centum by volume has been legalized, then obviously
the Legislature would have included those issues in
the third part of the statute. Since the statute
is exclusive and mandatory as to the issues which
may be submitted the omission of those phrases from
the third and fourth portions of the statute make
the issues unavailable for a prohibitory election
in any area defined in either the third or the fourth
part of the statute.
"The above construction of the statute is not
only in conformity with previous opinions issued by
the office of the Attorney General, it is the only
lo ical construction which can be given to Art.
66&O." (Emphasis ours.)
Honorable Doug Grouch, Page 4 (WW-1104)
This construction is consistent with a previous con-
struction of this statute b Attorney General John Ben Shepperd
in Opinion No. MS-149 (19547 and prior opinions by Attorneys
General Gerald Mann (Nos. O-2114 and O-5244) and Grover Sellers
(No. O-6917) dealing with the statute prior to its amendment
in 1953.
Your analysis also harmonizes with the followin court
decisions hearing upon the subject:. Smith v. Counts, 282 S.W.2d
422 Civ.App. 1955); Fox v. Burgess, 157 Tex. 292, 302 S.W.2d
405 I1957); Sumrow v.,Sterrett, 304 S.W.Zd 609 (Civ.App., 1959);
and Myers v0 Martinez, 320 S.W.2d 862 (Civ.App. 1959).
In answer to your first question, you are therefore
advised that a prohibitory local option election in Precinct 7
of Tarrant County, in which area the sale of alcoholic beverages
containing alcohol not in excess of fourteen per centum (14%)
by volume for off-premise consumption only has been heretofore
legalized, may be held only under Section (p) of Article 666-40,
V.P.C.
In answer to your second question, you are further ad-
vised that an election on the issues "for the legal sale of all
alcoholic beverages" and "agafnst the legal sale of all alcoholic
beverages" held upon the presentation of a petition validly calling
for such a legalizing election in an area where the sale of bever-
ages containing alcohol not in excess of fourteen per centum (14%)
has been legalized could, upon an affirmative vote, produce the
effect of greater legalization but a negative vote could not have
a prohibitory effect and would, therefore, mean that the pre-
election status of the area would be retained.
SUMMARY
(1) A prohibitory local option election
in Precinct 7 of Tarrant County, in which area
the sale of alcoholic beverages containin
ho1 not in excess of fourteen per centum ?1$O-
by volume for off-premises consumption only has
been heretofore legalized, may be held only
under Section (p) of Article 666-40, V.P.C,
(2) An election on the issues "for the
legal sale of all alcoholic beverages" and
"against the legal sale of all alcoholic bever-
ages" held upon the presentation of a petition
validly calling for such a legalizing election
in an area where the sale of beverages contain-
ing alcohol not in excess of fourteen per centum
(14%) has been legalized could, upon an affirma-
tive vote, produce the effect of greater legal-
I- -
Honorable Doug Crouch, Page ~5 (ww-1104)
isation but a negative vote could not have a
prohibitory effect and would, therefore, mean
that the pre-election status of the area would
be retained.
Yours very truly,
WILL WILSON
Attorney General of Texas
By/& /c
Harris Toler
Assistant Attorney General
HT:ca
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Stienberger
L. P. Lollar
Elmer McVey
John Leonars
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.