T~~EAITONNEY~GENERAI.
OF TEXAS
‘iUllTlN 11, -
PRICE DANIEL
ATTORNEYGRNERAL
June 22, 1948
Hon. Clarence D* Cain Opinion No, V-614.
County kttorney
Liberty County Re: Length of time Pollsw-
Liberty, Texas ing final judgment in a
local option contest in
whioh sale .of alcoholic
beverage must oease,
Dear Sir:
Your request for an opinion dated May 27, 1948,
stated that on January 3, 1948, ,a local option eleotion
was held in Liberty County; that the Commissioners' Court
declared the result of the election to be against prohib-
iting the sale of all alcoholic beverages; that an elec-
tion contest was filed, and the District Court of Liberty
County held that the election resulted in prohibiting the
sale of all alcoholic beverages; this decision was affirm-
ed by the Court of Civil Appeals and that a motion for re-
hearing is now pending before said Court:
Your q,uestionis:
"0 " 0 whether or not the sale of alco-
holic beverages must cease from the date upon
which the jud~gment(in the election contest)
becomes final sfor prohibiting the sale of
alcoholic beverages' or do the persons holding
permits to sell alcoholic beverages in this
county have thirty days from the date when
such judgment becomes final to continue the
sale of same and arrange for the disposition
of their stock on hand."
We are of the opinion that when the judgment in
the electfon contest becomes final and in the event such
final judgment is for prohibiting the sale of all alcoholic
beverages, local option is in effect immediately and the
holders of permits to sell alcoholic beverages camot sell
such beverages after the date of such final judgment.
Texas Jurisprudence Supplement, 1941, Vole 2, at
page 1071, in discussing contests ef local option elections
says:
.
. .
lion0 Clarence D. Cain, Page 2, V-614,
"Local option becomes effective upen the
date of the rendition of a jiidamentdetermin---
i g th t the vote was 1 favor of prohibition'~*
(&derzcoring ours throighout)
In Brooks v- State, 138 T&K, Grin. 526, 137 S-WI.
(26) 768, there was involved the question of whether or
not, in a contest of a local option eIectien, there nust
be publication of the result of the judgment. The Court
said:
"0 D .there was no statute requiring
notice of the judgment of the District Court
to be published, and notice was not a pre-
requisite in making effeotive the judgment
of said Court. The judgment itself was no-
tioe to the world, as it was very properly
held to be in Bicke'rsv. Lacy, Tex. Civ. App.,
134 S. W. 763. We copy Prom the opinion in
said case the following: OThe case of Cheno-
with v, State, 50 Tex. Grim, Rep, 238, 96
S. W, 19, and others.cited by appellant,hold-
ing that a local option prohibition law does
not go into effect until the county judge has
caused publication of the result of the elec-
tion as prescribed by the article before cited,
are cases in which the commissionersP court
had declared the result of the election to be
in favor of prohibition, and not cases in which
that result was declared by a judgment mf a dis-
trict court in a contest proceeding brought for
that purpose, An electioncontest is a proceed--"
ing in rem, and a judgment in such proceeding
3 bin n
‘fs ~-
Under Brooks v0 State, supra, no notice or publi-
cation of a judgment in a local option contest is neces-
sary. Had there been no contest, then Art, 606-37 and
Art, 666-38, V, P, C., pertaining to publishing of notice
by the CommissionersP Court and providing for a 30-day
period in which liquor could be sold after the Commission-
ers? Court had declared the results of a local option elee-
tion to be against the sale of liquor, would apply- HOW-
ever, we find no authority holding that once a contest has
been filed and tried and judgment entered in favor of pro-
hibition, alcoholic beverages may continue to be sold for
an additional period of 30 days after the date of the final
judgment.
Hon, Clarence D. Cain, Page 3, V-614.
In fact the Brooks v. State case holds that
once an election contest is filed, the statutes which
set out the duties of the CommissionersP Court in a
local option election no longer apply,
The quotation above frcm Texas Jurisprudence
Supplement, 1941, specifically states that when an elec-
tion contest is filed, local option bewmes effective
upon’the date of final judgment.
Bickers v. Lacy, Tex. Civ, App., 134 S. !V, 763,
in discussing the judgment in an election contest on
local option,said:
“The judgment was effective without
any publication, and not having b)eenap-
pealed from or set aside, but being in full
force and ~effect,the local option prohibi-
tion law against the sale of intoxicating
liquors thereby became operative in Leon
County, * 0n
Since the above authorities hold that in aa
election contest there is no necessity of notice of the
final judgment and that local option becomes effe&tive
upon the rendition of such judgment, It follows that the
sale of all alcoholic beverages niustcease ‘uponthe date
of final judgmenti Art0 666-37, V. P, Co, which provides
that the Commissionerss Court must make an order declar-
ing the results of the election and prohibiting the sale
of alcoholic beverages after 30 days Prom such order does
not apply,
It is painted out that Rule 442 of the Texas
Rules of Civil Procedure provides that the Clerk of the
Court of Civil Appeals shall issue the mandate after the
expiration of thirty days after the motion for rehearing
is overruledv The District Clerk will not issue execu-
tion on the judgment until the mandate has been received
from the Court of Civil Appeals, Rule 436. These rules
have the effect of delaying enforcement of the District
Court judgment until thirty days after the judgment of
the Court of Civil Appeals has become final,
When the judgment in a local option
election contest suit, declaring the re-
sult to be for prohfbiting the sale of all
Hon. Clarence D. Cain, Page 4, V-614.
alcoholic beverages, becomes final, the
local option prehibition law becomes sper-
atire immediately and ne,alcoholic bever-.
ages can be lawfully sold after the date
of such judgment.
Yours very truly,
ATl'OFNPXGE%!3RALOF TEXAS
Clinton Foshee
Assistant
APPROVED:
CF:jcp:jmc
Untitled Texas Attorney General Opinion
Combined Opinion