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OFFICEOFTHEA’TTORNEY GENERALOFTEXAS
AUSTIN
yc;lorableJesea ?J. Etrawn
County Attorney
::lilooyCounty
~eynondvllle,Toxee
Deer sir:
01 in exoe08 of
*nt and the aounty~
0 fourteen per asnt
net? Y.‘hettype of
bould be lssned In
inct in Cc386 it is
eny cyp of alco-
ragea asp be 80167
, requ3sting the
iona set out above
C??r tL;o 101~~1 0~,';10:1iC:l that eXisted prior t0 1537,
voted 'tar prohibiting t.ho sale or all liquors,
C3jrCCDt viriouean6 1:al.C Licuore that a0 not contain
tionorebld
~~~e8 w. Sttawn, Page 2 _
unable to rind any ftuthorityon thie question,
but It bmx?~ato mi that itO;fouldbe le@al to sell
~;;;ten& #in8 u? to four (4;~)per oent in the pre-
You wllL iiOtlO6 rrornmy orlgifialquestion
that iha ocunty voted dry a3 to four (I+$)per cent
hoer, but later voted wet 8s to fourteen (145)
beer and wine. The ?rccir.otin question has never
voted dry on either four (I+!<)per oent buar or
fourteen (X4$) per cent beer epd wlnc.
"1 an et the opinion thnt it isle&al to sell
hoer and wine up to four (4::)
.peraont in the pre-
oinotr Yhat type or lioense should be Issued in
said prcoinot in ease you find that sup type of
aloohollo beverage nap be aold?"
h the above quoted let&m you rerer oa to a let-
ter previounlp!:?ittcnby you to this dcgartnent which let-
tar wea doted Fcbruery 27, 1942, and contain& inquiries
t&;ch Were nnsvercd in this dapartmentfs opinion 110.04466.
It is neoessory to aonsldar both 01pthooo lcttsrs together
13 order to amiycr th6 questions coutaised in the above
quotedlatter, end sinoo neither of your letters reveals
the status of the county or of the precinat pAor to the
rlootlonthat rssultod in the le~elization of the sale or
rinous end nalt liquors that do oot oontsin alcohol in ex-
cb5a or sou percent (4$) by ivoight, it would 3fen to be
also necessnry to indulge the prcamptlon that the munty
aonteinlngthe precinct wcs aither wet et the tine or the
acoptlonof the prohibition anencbent to the Constitution
la 1919 or had oinoe tha adoptlon or the Constitutional
euendmentpenitting loael option, and bororc the olcotion
ma held in:thio precinct voted Vet to SOne extent penait-
ted by law because unless the oounty Itself was wet, 6 poll-
tioal subdivisionthereof oould not 1OEallY Vote to permit
the aale of any type of alooholio beverage.
BeglnninC then with the presumption of the volld-
!ty of the first.election in the gyeoreainct,
Y#enow dlnoues
four questions in a eeries of cuc:bc:red
atop3 in sccord.ence
the v5ryir.goocditlon Of the oo8mty end prcoinot as
*.lt!l
tc the sele of alaoholio beverage5 es deaoribcd in both OS
mr lottera,
,-
zonorebleJames W. I?trawn,page 3
1. "In the politloel subdivision,a preolnot,
the VOttW5, under the loocl option law that existed prior
to 1937, voted 'for prohibiting the sale of all liquors,
except YInous and rslt liquors that do not contain aloohol
lo OXCOBS of four (4:')per oent by weICht*." (From your
letter of Heroh 13, 1942.)
This eleotlon ob~lausly had the erfeot of permit-
tIhg the ocle of alcohollo beverages oontaining not more
then four percent (&:A)of aloohol by weight and of ?rohIbIt-
lng the sale of any alooholio bevereges oontnlning a per- :-
oentsceof alcohol greater than this amount. This Is 80
olear that no oltotlon of authorItIas,areaeoessary on this
point.
2. *In 1937 all aloohollo beverages were $rbhIbIt-
04 In the oounty" . (From your letter of February 27, 1942,) .
This election and the vote of the Jeople of the
entire aounty e.gaInetthe sale of all elcoholio beverages
' had the effoot of prohibiting the sale of any alooholio
beverage regardless of the alooholio content In tlr,precinot
in question end such prohibition would oontinua so long as
the oounty as a whole remained dry and until the people of
the tlholeoomty,that Is the eeza political entity held an
elootlonand voted In favor of the sale of aloohollo bever-
ages to some extent permitted by law. In support of this
rule of law we olte Jaokson Y, State; 118 S. 17.(2) 313,
wherein It wns held by the Court of CrImInal Appeals Of
Texas that!
Ylntoxioatlngliquors onoe having been voted
out by Yoters of e politloal subdIvisIonof 8
oounty oan only be voted baok by a majority vote
of Identical territory that had voted such liquors
but**
end quoting from this ease In the lengutigeof Judge Craves
kti wrcta the opinion, viefind;
"Tha county x~ayforoe prohibItion by vote
over preoinots whioh are not In favor of it, and
60 may a preoinot over cities, towns, or sub-
dloisicns therGof that may not be In favor of
it, but cannot foroe, by vote, rc?eal of It In
any to\-m,city or subdivision thereof.n
‘. :I(. : RonoreblaJames W. ZXawvn,Page 4
in the above quotod passa(r,o
Judy,eCraven wae himself quoting
-,::,.: from an earlier o~lnlon of Judge Hurt In the caaa of Aaron v.
,.., sate, 29 E. HI 267, but Judge Greves made It olesr that he
.-, r ,.. adopted suoh language and the rule there stated end made It
the opinion of tho court in Jaokson Y. state, Supra. To the
.: ‘..~ #$a.?10
effeot IS the 0pInIon of Judge ncvldaon In the oaae of
Ex parts ?ollard, 103 S. Y;.87l?,and the Court of CIvS.1Ap-
!~?;l;e;!SeOf POW011 V* %Ith, 90 8. 3, (2) 942, IU WhIoh It
..:i: :
_..,
WwhBre looal opt&on was adopted in any &vsn
” locality, by the majority of the voters thereof,
. ,... It will rcnain In force until the cl_uallfIed
voters
::.
of suoh partloular subdIvIsIon deoide otherwise
In en elootloz bald for that purpose.*
1:. .y, 9!huewe see that the rule emerges whloh Is now clearly tha
settledlaw of this %ats, that while a political ~ubdl.vI-
sion of a bounty may Do and romein dry even though thu aounty
88 a Whole votes wet In any of the degrees permItted by law,
.~ .: euoh political subdivision of the county may not be or re-
main wetwhen the oounty aa a viholevotes dry under looal
option.
ContInuIng with ou7 analysis of tho hlotory of the
vsrlous stages of wetness ena dryness throu& which your ooun-
ty has paosod as described by your letter we find:
3. HIn 1938 row (&?+)per cent beer ~05 1egalIzed
xlthIn.theoountpi later an eleutlon to leqelize all eloohollo
f&led to terry;
beverages. in 1939 four (4%) per cent beer
Piaslegoll%ed In the oounty.* (From your letter of February
27, 1942.1
The question presented In this paraexaph is did
the preolnot In question beoome wet aa to four peroont (46)
Elcoholiobeverages When the county aa a Whole voted Met in
1939 aB to four percent (4:s)olooholIc bcvcreyes? Uz?derthe
rule laid dovn In tho ebove cited OR",CSWe think that Suoh
pSecinctQld bec0.m vet as to fcur percent (Pi) nlcohollo
._I when She co:lntY03 a ::hola
bC:v~rh7cs :iEt;
ss to Zuch
v~-i~,cd
here~sn. The r(fiohcrclnebove quoted z.:8en8that the voter5
of n v&o].@county ocnnot onlar$o or add 'COthe Wet Status Of
B ~Oliticr;lsubdivISIon of Such COUntY thOW:S they ?z~aYtaks
.%V3yor oyorrule itn vet ot.3tllS.It.iB OLZ'OgiEiOn, there-
fore, that the precinct would return to the status Voted by
gonorable James W. %miwn, Pegs j
i
.!
; tha people for that particular preoinat et the last sle0ticn
i held in the precinct for that purpoce. The last election
held in such prsoinot hoviny;resulted In the le(;allzation
. cf four parcent (4%) eloohollo beverogca and hqving in the
i'. meantIme gone by by 6 vote of the whole county, the grc-
iP cinct would return to a status pemittln< the sale of four
2 pcrcant (G) alcoholic bavcreces when the county as a nhole,
3 at a subnoguenteleotion, QOttd to ~0rnlitl the sale or iour
i
proont (43) alcoholio beverages.
i 4. “In 1941 four (I$) per Cent beer was prohibit-
ed in the oount~.~ (From your letter of Februnry 27, 1942.)
t Now the prscinot v?ouldagain hecone dry under the
$ rule of ISW 8et Out, clttd and dlsousssU above.
5. "IZI1942 the &ale Of fourteen (1451 per oent
beer and wine was legalized.* (Pron your letter of Pebru-
%
sry 27, 1942.) “. . . The preoinct ln qucatfon has never
% totea dry on either four (4") per cant beer or fourteen (145)
per cent baer and w~Iw.~~ (From your letter of i:arch13, 1942.)
i
I% have now reachad the ?rcsent state in which we
j find that the county is wet ss to Towtea,? >:cxcnt (II&) beer
4 and wine) what then is the present ststus of the precinot In
quest&n? Ye thin% t&t aaid prccinot is nat only as to alco-
ho110 beverages ccntainlna not more than four percent (4$)
a or aloohol by weight.
?
Under the state of iaots given to us by you this
i prcclnotvoted to be dry as to all elooholiobevoragen except
, those otmteiningmore than r0ur percent (4,;)by might on4
no other eleotfon either nay has ever been held in such pra-
oinat sinoe .thsttime. Ey thin election it became wet as to
four percent (4;:)alcoholic beverages and it became dry as to
t all alcoholicbeverages oontalnlng aore than four percent (45)
cr aloohol. Claerly, under tbu rules enunoieted hereinabove,
it it hed been v~hollydry by n vote of tile?so7le of tho ore-
elnot,it would have rcm&?cd dry throughout aI1 these QtaCd-
tQde6of county eleotionc, Tccl-.con Q. Xate, supra, Aaron v.
*tste,supre, ;r pcrta Pollard) Gupr3, 'io~wllv. T;:ith,supra,
‘cd Xouchins v. Eeinos, 210 ?. :/.(2) 549. 53 oornty could
o~Wl;:o Its wet status in favor Of 8 dry Oco, but the oaunty
couldnot ohm&e its Ory ststun in favor of a wet one.
'UOh precinct yeasand is dry a3 to a13 ll?uorr in OYCGSS
cr row pcroect (h:) or elcchol. c'uchprcclnctnow renalns
'r7 es to 011 aloohoiio beverages containins: tore tb?n four
.
Bonorablr Jan&~ W. Strawa, Page 6
peroent.(ii$) alcohol by weight. Its wet Hiatus is Aot en-
larged or added to by rcmion ot the taot thet the aounty is
mayAOt
ret in 6 groatcr dogree than is the proolnot, and such status
be enlewed eXCePt by Vote Ol"the people or that par-
tioularpre4iAat IA PA elsotlon held tor thst purpose.
'351caoord~nca with the above holding you em ad-
vised iA BASwe1 to your ikit question that it is legal to
sell alcoholic beversges containingnot more than four per-
oent (f&i)by might in euch procinot. In answer to your
seoond question you em advlRed that t?letype of license
to be lseuod in such prectnct should be "Retail Dealers On-
premise Lioensew, krticle 667-3, 'cotion 4 (b), 'lemon's
hnOtf&?d PhAtil. CO’!b, In anewerirg‘thfslast question we
are ass~~&~ that iu your question about the tse of lioense
you WaAt the type 0r lioense required for BA ordinary re-
trillBealsr In srtohalooholo beverages.
Very truly yours
Aaelstaht