Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 11, 2008

The Honorable Jeri Yenne Opinion No. GA-0635
Brazoria County Criminal District Attorney
County Courthouse Re: Wet/dry status of certain precincts within
111 East Locust, Suite 408A Brazoria County (RQ-0656-GA)
Angleton, Texas 77515

Dear Ms. Yenne:

You inform us that on November 6,2007, Brazoria County (the "County") held a county-
wide local option election at which a majority of the voters in the county voted affirmatively for
"[t]he legal sale of beer and wine for off-premise consumption only" and "[t]he legal sale of mixed
beverages in restaurants by food and beverage certificate holders only."1 Three political subdivisions
within the County-former Justice Precinct 5 ("Precinct 5"), the City ofSweeny ("Sweeny") located
within Precinct 5, and the City of Richwood ("Richwood")-have held prior local option elections.
Request Letter, supra note 1, at 1-2. Following the 2007 county-wide election, you tell us, County
officials and prospective applicants for licenses or permits under the Texas Alcoholic Beverage Code
have raised questions about the alcoholic beverages that may be sold in Precinct 5, Sweeny, and
Richwood and the types of alcoholic beverage permits that may be issued for locations in these
political subdivisions. Id. at 2. Accordingly, you ask six questions, which we paraphrase below:

1. After the 2007 county-wide election, are wine and beer sales lawful in Sweeny or do beer
sales remain prohibited in Precinct 5?

2. If beer sales remain prohibited in Sweeny/Precinct 5, can the county clerk certify locations
in Sweeny/Precinct 5 as "wet" for both wine and beer sales on an application for a Wine and
Beer Retailer's Off-Premise Permit?

3. If the county clerk cannot certify Precinct 5 as "wet" for beer, what certification, if any,
should be made on the Texas Alcoholic Beverage Commission's ("TABC") application
forms for a Wine and Beer Retailer's Off-Premise Permit or a Mixed Beverage Permit?

1See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott,

Attorney General of Texas, at 1 (Dec. 19, 2007) (on file with the Opinion Committee, also available at http://www.
texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Jeri Yenne - Page 2 (GA-0635)

4. If the county clerk inserts qualifying language such as "beer is excluded from this
certification" as to the required certification on the TABC application form, can the TABC
legally issue a modified permit for the retail sale of wine-only off-premises or a modified
permit for the sale of mixed beverages excluding beer?

5. Can a Mixed Beverage Permit application be certified as "wet" for locations within
Richwood or must certifications under Alcoholic Beverage Code section 11.37 be declined
or qualified as not including beer due to Richwood's limitation ofbeer sales to off-premises
only pursuant to its 1968 local option election?

6. If on-premises sale of beer remains prohibited in Richwood,· can a Mixed Beverage Permit,
which by definition includes beer, be·issued for locations in Richwood?

Request Letter, supra note 1, at 3-4.

I. Background

A. Local Option Election Provisions

To provide a context for your questions, we first provide an overview of the constitutional
and statutory framework for local option elections in Texas. Article XVI, section 20·ofthe Texas
Constitution authorizes the Legislature to regulate the manufacture, sale, possession, and
transportation ofintoxicating liquors. See TEx. CONST. art. XVI, § 20(a). This provision also directs
the Legislature to enact local option elections laws:

The Legislature shall enact a law or laws whereby the qualified voters
of any county, justice's precinct or incorporated town or city, may by
a majority vote ... determine from time to time whether the sale of
intoxicating liquors for beverage purposes shall be prohibited or
legalized within the prescribed limits; and such laws shall contain
provisions for voting on the sale of intoxicating liquors of various
types and various alcoholic content.

TEX. CONST. art. XVI, § 20(b). Pursuant to the constitutional directive, the Legislature has enacted
laws providing for local option elections and the sale of intoxicating liquors, which are codified
at chapter 251 of the Alcoholic Beverage Code and chapter 501 of the Election Code. See TEX.
ALCO. BEV. CODE ANN. §§ 251.71-.82 (Vernon 2007) (subchapter D); TEx. ELEC. CODE ANN.
§§ 501.001-.155 (Vernon Supp. 2007) (subchapters A-D).2

2In 2005, subchapters A, B, and C of chapter 251 ofthe Alcoholic Beverage Code were repealed and codified
at chapter 501 of the Election Code. See Act of May 27,2005, 79th Leg., R.S., ch. 975, §§ 1-8,2005 Tex. Gen. Laws
3269,3269-77.
The Honorable Jeri Yenne - Page 3 (GA-0635)

Under the Election Code, upon receiving a valid petition from the voters of a county, justice
precinct, or a city in the county, the commissioners court must order an election "in the political
subdivision to determine whether the sale ofalcoholic beverages ofone or more ofthe various types
and alcoholic contents shall be prohibited or legalized in the political subdivision." TEX. ELEC.
CODE ANN. § 501.021 (Vernon Supp. 2007). The commissioners court's election order must state
whether the election is to prohibit or legalize the sale of the alcoholic beverage- in question. Id.
§ 501.034. 3 In a prohibitory election, if a majority of those voting favor the prohibition, i.e., the
issue passes, the sale ofthe alcoholic beverage in question is prohibited, and the prohibition remains
in effect until changed by a subsequent election. Id. § 501.151 (b). In a legalization election, if a
majority of those voting favor the sale and the issue therefore passes, sale ofthe alcoholic beverage
is legal on the entry of the commissioners court's order, and the legalization remains in effect until
changed by a later election. Id. § 501.151 (c). A political subdivision's local option status does not
change if the issue does not pass in a prohibitory or legalization election. See ide § 501.151 (d).

The local option elections determine whether an area is "dry" or "wet" with respect to
particular types and alcoholic contents ofalcoholic beverages. Under the Alcoholic Beverage Code,
an area is "dry" as "to an alcoholic beverage ofa particular type and alcohol content ifthe sale ofthat
beverage is unlawful in the area." See TEX. ALco. BEV. CODE ANN. § 251.71(a) (Vernon 2007).
And an area is "wet" as "to an alcoholic beverage of a particular type and alcohol content ifthe sale
of that beverage is lawful in the area." Id.

B. History of Brazoria County Elections

You ask about the alcoholic beverages that may be lawfully sold in Precinct 5, Sweeny, and
Richwood after the 2007 county-wide election. In the county-wide election, the voters considered
two issues: "[t]he legal sale ofbeer4 and wine for off-premise consumption only," and "[t]he legal
sale of mixed beverages 5 in restaurants by food and beverage certificate holders only." Request

3In general, in an area where the sale of a type or class of alcoholic beverage has been prohibited, in the event
of an election to legalize the sale of one or more of the prohibited type or class, the ballot must permit voting for or
against the statutorily prescribed issue or issues. See TEX. ELEC. CODE ANN. § 501.035(b), (d) (Vernon Supp. 2007).
And in an area where the sale of a type or class of alcoholic beverage has been legalized, the ballot in a prohibitory
election must permit voting for or against the statutorily prescribed issue or issues. Id § 50 1.035(c); see also id §§
501.03 5(b)-(e) (prescribing the issues and their language that may be presented on the ballot); 501.1 05(b) ("The issue
appropriate to the election shall be printed on the ballot in the exact language stated in Section 501.035.").

4"'Beer' means a malt beverage containing one-halfofone percent ormore ofalcohol by volume and not more
than four percent ofalcohol by weight, and does not include a beverage designated by label or otherwise by a name other
than beer." TEX. ALeo. BEV. CODE ANN. § 1.04(15) (Vernon Supp. 2007).

S'''Mixed beverage' means one or more servings of a beverage composed in whole or part of an alcoholic
beverage in a sealed or unsealed container ... for consumption on the premises where served or sold by the holder of
a mixed beverage permit, the holder of a daily temporary mixed beverage permit ... or the holder of a private club late
hours permit." Id. § 1.04(13). An "alcoholic beverage" is "alcohol, or any beverage containing more than one-half of
one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted." Id. §
1.04(1).
The Honorable Jeri Yenne - Page 4 (GA-0635)

Letter, supra note 1, at 1 (footnotes added); see also TEX. ELEC. CODE ANN. § 501.035(b)(3), (9)
(Vernon Supp. 2007) (setting forth these two issues as those, among others, that may be submitted
at local option elections). Both passed. See Request Letter, supra note 1, at 1. You ask about the
effect, if any, of the county-wide passage of the two issues within the territorial limits of the three
political subdivisions contained within the county, each of which has held prior local option
elections. See ide at 3-4. We look at these prior elections.

1. The County

Exhibit B attached to the Request Letter sets forth the history of the local option elections
in the County. See Request Letter, supra note 1, Exhibit B, History of Alcoholic Beverages,
Brazoria County, Texas, at 1 [hereinafter Exhibit B]. In 1919, a majority of voters in the County
voted for "prohibition" and thus the County as a whole was "dry." Exhibit B, at 1. In 1933, in a
county-wide election, a majority of the County voters voted "wet" for the sale of beer. Id at 1-2.
In 1936 and 1937, a majority ofthe County voters in county-wide elections voted against legalizing
"the sale of all liquors." Id. at 4-5. Thus according to Exhibit B, after the 1936 and 1937 elections
the County remained "wet" for the "sale ofbeer only" throughout the County, including Precinct 5,
Sweeny, and Rockwood. Id.

2. Precinct 5/Sweeny

In 1958, a majority of the voters of former 6 Precinct 5 (located entirely within the County)
voted for the "prohibition of [t]he legal sale of beer" making the precinct "dry" for all alcoholic
beverages. Id. at 6 ("Local Option Status: Changes to totally dry"). In 1982, a majority ofthe voters
of Sweeny (located entirely within Precinct 5) voted against "the legal sale of beer" in the city. Id
at 13. The proposition failed, and thus Sweeny, like the remainder ofPrecinct 5, remained "dry" for .
all alcoholic beverages according to Exhibit B. Id. at 13 ("Local Option Status remains totally dry").

6you do not suggest that the "former" status ofPrecinct 5 is an issue here. In any case, the statutory framework
and case law suggest that the "former" status would not change the analysis or conclusion with respect to the local option
status of Precinct 5. See TEX. ALeo. BEV. CODE ANN. §§ 251.72-.73, .80(a) (Vernon 2007) (providing that the status
resulting from local option elections in a voting unit is retained until changed by elections specific to that voting unit and
that the status resulting from elections in a smaller political subdivision prevails over the status resulting from elections
in the .larger political subdivision in which the smaller political subdivision is contained); Houchins V. Plainos, 110
S.W.2d 549, 555 (Tex. 1937) ("[W]e hold that while it is true that the city ofHouston Heights has long since ceased to
exist as a municipal corporation, still it yet exists for the purpose ofholding a local option election to vote on the question
of making it lawful to sell intoxicating liquors within the area originally voted dry."); Coker v. Tex. Alcoholic Beverage
Comm 'n, 524 S.W.2d 570, 572, 578-79 (Tex. Civ. App.-Dallas 1975, writ refd n.r.e.) (concluding that a change in
a justice precinct boundary has no effect on the local option status ofthe original area and that a subsequent local option
election must be conducted in the territory as it existed before the boundary change); see also Coker, 524 S.W.2d at
578-79 (rejecting the argument that the statutory provision that an election to change the status in "an area" applies only
to an existing political subdivision and the argument that residents of a former justice precinct would be denied equal
protection because of the difficulties of drawing the exact boundaries of the precinct as it existed almost a century
before); Tex. Att'y Gen. Ope No. JM-1177 (1990) at 2-5 (rejecting the argument that an election is not required to
change the local option status in a justice precinct because it would be administratively difficult for counties to conduct
such elections in the area that formerly comprised a justice precinct (citing Coker, 524 S.W.2d at 579».
The Honorable Jeri Yenne - Page 5 (GA-0635)

3. Richwood

In 1967, a majority of the voters in Richwood (located entirely within the County but not in
Precinct 5) voted for the "[p]rohibition of the .legal sale of beer" making Richwood "dry" for all
alcoholic beverages. Id. at 7 ("Local Option Status: Changes to totally dry"). In 1968, however, the
voters of Richwood voted for "[t]he legal sale of beer off premise only." Id at 8. According to
Exhibit B, after this election Richwood became "wet" for the sale of beer for off-premises
consumption only. Id. ("Local Option Status: Changes to sale of beer off premise only").

II. Analysis

A. Local Option Status

The legal issue here is the "local option status" established by the prior local option elections
in Precinct 5, Sweeny, and Richwood because a county-wide election cannot change such status
within a justice precinct or a city located within the county. See TEx. Meo. BEV. CODE ANN.
§§ 251.72-.73, .80(a) (Vernon 2007).

First, apolitical subdivision retains the status resulting from an election until it is changed
by another election specific to the same political subdivision. Section 251.72 of the Alcoholic
Beverage Code provides that "an authorized voting unit that has exercised or may exercise the right
of local option retains the status adopted, whether absolute prohibition or legalization ofthe sale of
alcoholic beverages of one or more of the various types and alcoholic contents on which an issue
may be submitted ... , until that status is changed by a subsequent local option election in the same
authorized voting unit." Id. § 251.72 (emphasis added); see also TEx. CONST. art. XVI, § 20(c);
Houchins v. Plainos, 110 S.W.2d 549,553 (Tex. 1937) (holding that a dry city annexed to a wet area
"remained dry until it was voted wet at a subsequent election held in and for the same identical area
which had theretofore voted dry"); Coker v. Tex. Alcoholic Beverage Comm 'n , 524 S.W.2d 570, 574
(Tex. Civ. App.-Dallas 1975, writrefdn.r.e.) (holding "that apolitical subdivision which has once
voted dry remains so until sale of alcoholic beverages is legalized by a wet vote in the same
subdi~vision").

Second, "[t]o insure that each voter has the maximum possible control over the status ofthe
sale of alcoholic beverages in the area where he resides," the results of an election held in a smaller
political subdivision cannot be overriden by the results ofan election in a larger political subdivision
that encompasses the smaller political subdivision. TEX. Meo. BEV. CODE ANN. § 251.73 (Vernon
2007). Section 251.73 provides that the status resulting from "a duly called election for [a] ... city
or town prevails against the status that resulted from ... a duly called election in a justice precinct
or county in which the ... city or town, or any part of it is contained." Id. § 251.73(1). Similarly,
the status resulting from "a duly called election for a justice precinct prevails against the status"
resulting from "a duly called election in [a] ... city or town in which the justice precinct is wholly
contained or in a county in which the justice precinct is located." Id. § 251.73(2); see also Coker,
524 S.W.2d at 574 ("We conclude that [the constitutional and statutory provisions] give priority to
[the vote of] the smaller subdivision ...."); Myers v. Martinez, 320 S.W.2d 862, 866 (Tex. Civ.
The Honorable Jeri Yenne - Page 6 (GA-0635)

App.-San Antonio) ("The doctrine oflocal self-government requires that the will ofthe smaller unit
shall control over the will of the larger unit."), writ ref'd n.r.e., 326 S.W.2d 171 (Tex. 1959) (per
curiam). And section 251.80 provides that "[w]henever a local option status is once legally put into
effect as the result of the vote in a justice precinct, such status shall remain in effect until the status
is changed as the result of a vote in the same territory that comprised the precinct when such status
was established." TEX. ALCO. BEV. CODE ANN. § 251.80(a) (Vernon 2007).

Neither Alcoholic Beverage Code chapter 251 nor Election Code chapter 501 specifically
defines the term "local option status" or "status." Nor do we find ajudicial definition ofthese terms
as relevant here. Section 251.72, however, suggests its meaning. See ide § 251.72; TEX. GOV'T
CODE ANN. § 311.011(a) (Vernon 2005) (providing that words and phrases not having acquired
technical or particular meanings are to "be read in context and construed according to the rules of
grammar and common usage"). 7 Section 251.72 provides in relevant part that "an authorized voting
unit ... retains the status adopted, whether absolute prohibition or legalization of the sale of
alcoholic beverages ... , until that status is changed by a subsequent local option election in the
same authorized voting unit." TEX. ALCO. BEV. CODE ANN. § 251.72 (Vernon 2007) (emphasis
added). The italicized language immediately following "status" indicates that the term comprises
the alcoholic beverages prohibited or legalized as a result of the exercise "of the right of local
option" in the voting unit. See ide The phrase "local option" means "the latest expression of the
will" or choice ofthe voters for or against the sale ofliquor in their voting unit. See Powell v. Smith,
90 S.W.2d 942, 944 (Tex. Civ. App.-Fort Worth 1936, no writ); see also id ("So long as this
expression stands unchanged, no Legislatures, no court, no individual should seek to set it aside and
hold it for naught-this is the very essence of local self-government."); BLACK'S LAW DICTIONARY
950 (7th ed. 1999) (defining "local option" as "[a]n option that allows a municipality or other
governmental unit to determine a particular course of action without the specific approval of state
officials"); THE NEW OXFORD AMERICAN DICTIONARY 1001 (2001) (defining "local option" as " a
choice ayailable to a local.administration to accept or rej ect national legislation (e.g., concerning the
sale of alcoholic liquor)").

Thus, it follows that "local option status" or "status" in this context means the choice of
alcoholic beverages legalized or prohibited in a voting unit-the latest expression ofthe voters' will
as to what alcoholic bev:erages may be sold in their area from the extensive "menu" provided under
the statutory scheme. See TEX. ELEC. CODE ANN. § 501.035(b)-(f) (Vernon Supp. 2007) (listing the
issues with respect to the various types and classifications of alcoholic beverages that may be
submitted in a local option election); Fox v. Burgess, 302 S.W.2d 405, 408 (Tex. 1957) ("The
evident intention of the Legislature in the adoption of [the predecessor statutory scheme for local
option elections] was to provide that the majority might choose the desired type and classification
of alcoholic beverages or to prohibit the sale altogether of all types if it so willed."). The choice of
alcoholic beverages legalized or prohibited in a voting unit cannot be changed-made different by
adding to or deleting from-except through another election specific to that voting unit. See TEX.

7The common meaning ofthe term "status" does not help us resolve what that term encompasses in the context
ofthe local option provisions. See THE NEW OXFORD AMERICAN DICTIONARY 1665 (2001) (defming "status" as "relative
... standing of someone or something" or "the position of affairs at a particular time").
The Honorable Jeri Yenne - Page 7 (GA-0635)

ALCO. BEV. CODE ANN. § 251.72 (Vernon 2007); see also THE NEW OXFORD AMERICAN
DICTIONARY 285 (2001) (defining the term "change" as "to make or become different"). Nothing
in the statutory scheme indicates that a voting unit's choice ofthe legalized alcoholic beverages may
be changed by the addition of alcoholic beverages not approved by elections specific to that unit.
See TEX. ALCO. BEV. CODE ANN. §§ 251.72-.73 (Vernon 2007). But see Tex. Att'y Gen. Ope No.
H-59 (1973) at 3-4 (concluding that a county-wide election would legalize the sale of alcoholic
beverages not prohibited by local option elections in a justice precinct).

More significantly, by choosing the alcoholic beverages it desires to legalize, a voting unit
implicitly chooses to remain "dry" with respect to the sale ofall other alcoholic beverages. See TEX.
ALCD. BEV. CODE ANN. § 251.71(a) (Vernon 2007); Tillerson V. State, 159 S.W.2d 502,503 (Tex.
Crim. App. 1942). By definition, "dry" and "wet" are relative terms. Tillerson, 159 S.W.2d at 503.
An area is "dry" as to an alcoholic beverage "if the sale of that beverage is unlawful in the area."
TEX. ALCO. BEV. CODE ANN. § 251.71(a) (Vernon 2007) (emphasis added). And an area is "wet"
as to an alcoholic beverage "ifthe sale ofthat beverage is lawful in the area." Id. (emphasis added).
Accordingly, an area is wet with respect to the alcoholic beverages or beverages legalized by one or
more local option elections in that area and dry as to everything else. See Tillerson, 159 S.W.2d at
502-03 (determining that in a county where the "only local option election ... was to permit 3.2
liquor by weight," the county was a '''dry area' as to the sale ofwhisky and other alcoholic beverages
containing more than 3.2 percent alcohol by weight" and "a 'wet area' as to beer and those liquors
which do not contain more than 3.2 percent of alcohol by weight"). Thus, a voting unit that votes
to legalize the sale of certain alcoholic beverages does not need to affirmatively prohibit the sale of
other "unlawful" alcoholic beverages in order to express the taxing unit voters' will against their
sale.

A 1973 attorney general opinion suggests, however, that "local option status" is limited to
prohibitory or inconsistent ballot issues. Attorney General Opinion H-59 considers, among other
questions, whether the passage ofa county-wide ballot measure for the sale ofall alcoholic beverages
would change the status of a precinct within the county that was "wet for the sale of beer." Tex.
Att'y Gen. Ope No. H-59 (1973) at 1,3-4. The opinion concludes that because "there is no local
option status ofPrecinct No. 2 which would prohibit the legalization of all alcoholic beverages
including mixed beverages on a county-wide basis, the local option status of Precinct No.2 would
be the same as the county until a different result was established by a subsequent precinct election
should there ever be one." Id. at 4 (emphasis added).8

8Based on your conclusions, you appear to present a similar argument: Because the local option elections in
Precinct 5 and Richwood pertained only to the sale of beer, while the 2007 county-wide election pertained to wine and
mixed beverages as well as beer, Precinct 5's and Richwood's local option status was changed by the county-wide
election with respect to the sale of wine and mixed beverages. See Request Letter, supra note 1, at 5-6. You conclude
that after the 2007 election, the sale ofbeer remains completely prohibited in Precinct 5 and Sweeny, but the sale ofwine
and mixed beverages-excluding beer-will be permitted. Id Similarly, you conclude that on-premises sale of beer
remains completely prohibited in Richwood, but wine and mixed beverages-excluding on-premises sale ofbeer-may
b€ sold there. Id at 6.
The Honorable Jeri Yenne - Page 8 (GA-0635)

Attorney General Opinion H-59's conclusion and analysis is inconsistent with the current
statutory scheme under the Alcoholic Beverage Code.

First, under Alcoholic Beverage Code section 251.72, local option status encompasses not
only the alcoholic beverages prohibited, but also those that are legalized. See TEX. ALeo. BEV.
CODE ANN. § 251.72 (Vernon 2007); see also ide § 251.71(a) (defining "wet" and "dry"); supra
p. 3. 9 And, sections 251.72 and 251.73 expressly and unambiguously ensure local choice and local
control over the sale of alcoholic beverages. See ide §§ 251.72-.73; see also ide § 251.80(a)
(addressing specifically justice precincts). These statutory provisions do not expressly limit "local
option status" to inconsistent or prohibitory ballot measures or limit the local choice and control
protection provided to inconsistent and prohibitory measures. See ide Attorney General Opinion
H-59 was not constrained by these provisions nor did the opinion address the local choice and
control principles eD;lbodied in these provisions. The substance of sections 251.72 and 251.73 was
enacted and effective after the July 10,1973 issuance date of Attorney General Opinion H-59. See
Act of May 19,1967, 60th Leg., R.S., ch. 723, § 71, 1967 Tex. Gen. Laws 1858, 1927 (law effective
as of July 1973 when Attorney General Opinion H-59 was issued); Act of May 14, 1973, 63d Leg.,
R.S., ch. 219, § 2, 1973 Tex. Gen. Laws 508,510-11 (adopting the substance of sections 251.72 and
251.73 effective August 27, 1973). The opinion was also issued before the Dallas court ofappeals'
1975 decision, Coker v. Texas Alcoholic Beverage Commission, reiterated that article XVI, section
20(c) and the substance of sections 251.72 and 73 give "priority to the vote of the precinct over the
vote of the county as a whole, with respect to both prohibition and legalization" of the sale of
alcoholic beverages. Coker, 524 S.W.2d at 576.

Second, Attorney General Opinion H-59, in considering only prohibitory or inconsistent
ballot measures, incorrectly assumes that with respect to any particular type of alcoholic beverages,
the default local option status is "wet" rather than "dry."

In a 1937 opinion, the Texas Supreme Court explained that article XVI, section 20, adopted
in 1935, authorized the sale of alcoholic beverages in the state, but preserved the "existing" dry
status of counties, justice precincts, and cities until changed by subsequent local option elections in
those areas:

By the terms of this amendment the entire state, as such, is again
made wet as to all intoxicating liquors; but with certain exceptions
and limitations. In effect, this amendment contains provisions which

9The TABC's argument accords with this view. The TABC argues that "local option status" is "more than the
specific issue mentioned in a ballot option." Instead, according to the TABC, it is "that combination ofwet and dry law
called into effect by the election." Brief from Lou Bright, General Counsel, Texas Alcoholic Beverage Commission,
to Nancy S. Fuller, Chair, Opinion Committee, Office ofAttorney General, at 3 (Feb. 29,2008) (on file with the Opinion
Committee). Thus, "for example, the 'status' of Richwood is ... wet for the sale of beer for off-premises consumption
and dry for all other alcoholic beverages," and that "status can only be changed by an election in ... Richwood." Id
Similarly, TABC continues, "this is true for the status within Precinct 5 ... so that no sale of alcoholic beverages at all
can be authorized within that territory except through a legalizing election conducted by the citizens within that territory."
Jd.
The Honorable Jeri Yenne - Page 9 (GA-0635)

make any county, justice's precinct, or city, or town dry which was
dry at the time it became effective. In other words, this amendment
preserves the status quo as to dry areas as they existed at the time it
became effective. It therefore preserved as dry any county,justice 's
precinct, or city, or town which was dry when it went into effect. Of
course, any such area has the right to become wet by so voting at an
election legally orderedandheldfor thatpurpose underpresent local
option statutes.

Houchins, 110 S.W.2d at 555 (emphasis added).

The Texas Liquor Control Act (the "Act"), adopted in 1935 by the same Legislature that
drafted the 1935 constitutional amendment, clarified that the "existing" default status of counties,
justice precincts, and cities with respect to any particular type of alcoholic beverages was "dry"
unless legalized by subsequent local option elections in those areas:

As to any particular type of liquor, each county, justice
precinct, incorporated city or town within this State shall be deemed
to be a "dry area" unless such county, justice precinct, city or town,
was a "wet area" at the time Section 20 of Article XVI of the
Constitution became effective and has not since said time changed its
status, or unless the sale of that particular type of liquor has been
legalized by local option election in such county,justice precinct, city
or town, since said time.

The term "wet area" shall be construed as including in each
particular instance only liquors of a type or liquors not exceeding in
alcoholic content· that which have been legalized by a valid local
option election in the prescribed area.

Act of Nov. 14, 1935, 44th Leg., 2d C.S., ch. 467, § 1, sec. 23, 1935 Tex. Gen. Laws 1795, 1817
(emphasis added); Coker, 524 S.W.2d at 574-75 (discussing the Act); see also Walker v. Meyers,
266 S.W. 499, 501-02 (Tex. 1924) ("contemporaneous and practical construction of constitutional
provisions by the Legislature, in the enactment of laws, has great weight and gives rise to a strong
pres.umption that the construction rightly interprets the meaning of the provisions").

The Legislature's determination in the Act that the ,"existing" default status is "dry" is
explained by the fact that counties, justice precincts, and cities were generally dry when article XVI,
section 20 and the Act were adopted in 1935:

When [the federaljprohibition ended, Texas political subdivisions
were generally "dry" by default, meaning that the sale of liquor was
prohibited. State law specified once again that legalization of liquor
The Honorable Jeri Yenne - Page 10 (GA-0635)

sales reverted to a local determination by a petition-driven election
process.

Counties, cities, and justice of the peace precincts are generally
"dry" except where the voters have approved the sale ofliquor ....
Local option liquor elections may also be held to prohibit the sale of
alcohol in formerly "wet" political subdivisions.

Texas Secretary of State, Phil Wilson, Local Option Liquor Elections - Questions and Answers
(Overview of Texas laws relating to the sale or prohibition of liquor) (emphasis added);lO see also
Justice Craig T. Enoch et aI., In re Callas Davis: Texas Supreme Court to Interpret Alcoholic
Beverage Election Law (March 11, 2008) ("The confusion [regarding Texas' alcoholic beverage
laws] largely stems from the fact that, after Prohibition ended, political subdivisions were generally
'dry' by default, meaning the sale of alcoholic beverages was prohibited. From that point forward,
the legalization of the sale of alcoholic beverages would be by local determination using a petition-
driven election process.") (footnoteomitted).ll

Thus, Attorney General Opinion H-59 is inconsistent with the statutory framework for the
sale of alcoholic beverages and is modified to the extent it is inconsistent with the conclusions
reached here.

In sum, consistent with the statutory scheme, we believe for the purposes ofsections 251.72,
251.73, and 251.80, the term "local option status" or "status" means the choice of alcoholic
beverages expressly or implicitly prohibited or legalized as a result ofthe local option elections held
in the voting unit. See Tex. Dep 't ofTransp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (stating
that statutory terms should not be given a meaning inconsistent with other provisions and they
"should be interpreted consistently in every part of an act"). That choice cannot be changed except
through an election held in the same voting unit.

Based on the information you provide, as a result of the local option elections held in 1958
and 1982, both Precinct 5 and Sweeny were "dry" for all alcoholic beverages because it was unlawful
to sell any alcoholic beverages throughout Precinct 5. See Exhibit B, at 6 ("[Precinct 5] Local
Option Status: Changes to totally dry"), 13 ("[Sweeny] Local Option Status remains totally dry").
And, after its local option elections in 1967 and 1968, Richwood was "wet" for beer sales for off-
premises consumption only and "dry" for the sale of all other alcoholic beverages because it was
lawful to sell only beer for off-premises consumption. See ide at 7 (after 1967 election, "Local
Option Status: Changes to totally dry"), 8 (after 1968 election "Local Option Status: Changes to
sale of beer off premise only"); see also TEX. ALeG. BEV. CODE ANN. § 251.-71(a) (Vernon 2007)
(providing that an area is "wet" as to an alcoholic beverage ifthe sale ofthat beverage is lawful and

lOAvailable at http://www.sos.state.tx.us/elections/laws/liquorelections.shtml (last visited June 4, 2008).

llAvailable athttp://www.texsupp.coml2008/03/11/in-re-calla-davis-texas-supreme-court-to-interpret-alcoholic-
beverage-election-Iawsl (last visited June 4, 2008).
The Honorable Jeri Yenne - Page 11 (GA-0635)

"dry" ifunlawful). We determine that this wet and dry description constitutes the respective "local
option status" of Precinct 5, Sweeny, and Richwood; that status can be changed only by an election
in the particular voting unit. Thus, the 2007 county-wide election has no effect in the three political
subdivisions with respect to the sale of alcoholic beverages. See TEX. ALeo. BEV. CODE ANN
§§ 251.72-.73, .80(a) (Vernon 2007). Accordingly, in answer to your first question, we conclude
that the sale of wine is unlawful in Sweeny, and beer sales remain prohibited in Precinct 5 as they
were before the 2007 election. In partial answer to your fifth and sixth questions, we conclude that
the sale of mixed beverages is unlawful in Richwood and the on-premises sale of beer remains
prohibited therein as was the case before the 2007 election.

B. Permit Certifications

Your remaining questions ask about the certifications that the county clerk may make on
applications for various types ofpermits for the sale ofwine, beer, and mixed beverages for locations
in Precinct 5, Sweeny, and Richwood and the types ofpermits that may be issued. These questions
are premised on the assumption that the 2007 county-wide election effe.cted some change in the
alcoholic beverages that may be sold in these three areas. Because we conclude that the 2007
election did not effect a change in the three areas, we answer these questions in a summary form.

Before addressing your questions, we provide an overview ofthe permitting and certification
provisions as relevant here. Any certifications and permits for the sale of alcoholic beverages must
conform to the law. The Alcoholic Beverage Code provides for various permits related to the sale
of alcoholic beverages. Among other specified types ofpermits and licenses, the code provides for
a "Wine Only Package Store Permit," a "Wine and Beer Retailer's Permit," a "Wine and Beer
Retailer's Off-Premise Permit," a "Temporary and Special Wine and Beer Retailer's Permit," a
"Mixed Beverage Permit," a "Mixed Beverage Late Hours Permit," and a "Daily Temporary Mixed
Beverage Permit." See TEX. ALeo. BEV. CODE ANN. chs. 24-28 (Vernon 2007 & Supp. 2007); see
also id. chs. 69-71 (providing for retail dealers licenses for the sale of beer).

Section 11.37 ofthe Alcohol Beverage Code requires the county clerk ofthe county in which
an application for a permit is made to certify "whether the location or address given in the
application is in a wet area and whether the sale of alcoholic beverages for which the permit is
sought is prohibited by any valid order of the commissioners court." Id. § 11.37(a) (Vernon 2007);
see also id § 61.37(a)-(b) (requiring similar certification for licenses). Again, under the Alcoholic
Beverage Code, an area is "wet" with respect to "an alcoholic beverage of a particular type and
alcoholic content if the sale of that beverage is lawful in the area" and "dry" if the "sale ... is
unlawful." Id. § 251.71(a).

1. Sweeny

Your second question relates to applications for Wine and Beer Retailer's Off-Premise
Permits for locations in Sweeny. The holder of such a permit "may sell for off-premises
consumption only ... wine, beer, and malt liquors containing alcohol in excess of one-half of one
percent ....butnot more than 17 percent by volume." Id § 26.01(a) (Vernon Supp. 2007). Thus you
The Honorable Jeri Yenne - Page 12 (GA-0635)

ask: Ifbeer sales are unlawful in Sweeny, whether the county clerk is authorized to certify locations
in Sweeny as a "wet area" for both wine and beer sales on the application for a Wine and Beer
Retailer's Off-Premise Permit. Request Letter, supra note 1, at 3. This question is raised because,
as you note, the code does not provide for a wine-only retailer's off-premises permit. See id at 5.
And it is an issue here because you believe that after the 2007 county-wide election, while beer
remains prohibited, wine may be sold in Sweeny. See id Because we conclude that the 2007
election did not change the local option status of Sweeny-dry for all alcoholic beverages-it
remains dry for wine as well as beer. Thus, the county clerk cannot certify Sweeny as a "wet area"
for the sale of beer and wine.

2. Precinct 5

Your third and fourth questions ask about applications for both Mixed Beverage and Wine
and Beer Retailer's Off-Premise Permits for locations in Precinct 5. Again, the holder ofa Wine and
Beer Retailer's Off-Premise Permit may sell wine, beer, and malt liquor. See TEx. Mea. BEV. CODE
ANN. § 26.01(a) (Vernon Supp. 2007). A Mixed Beverage Permit holder "may sell, offer for sale,
and possess mixed beverages, including distilled spirits, for consumption on the licensed premises."
Id. § 28.01(a) (Vernon 2007). The holder of such permit also may sell wine, beer, ale, and malt
liquor. See id. § 28.0 1(c). You ask: If the county clerk cannot certify Precinct 5 as wet for beer,
whether any certification should be made on the application form for Wine and Beer Retailer's Off-
Premise Permit or Mixed Beverages Permit furnished by the TABC. Request Letter, supra note 1,
at 3. You also ask: If the county clerk inserts qualifying language such as "beer is excluded from
this certification" on the application form for Wine and Beer Retailer's Off-Premise Permit or. Mixed
Beverages Permit, whether the TABC is authorized to issue a modified permit for the retail sale
of wine-only off-premises or a modified permit for the sale of mixed beverages excluding beer.
Id. at 3-4.

Both of your questions are premised on the conclusion that while the sale of beer may be
prohibited in Precinct 5, the sale of wine or mixed beverages-excluding beer-may be authorized
therein after the 2007 county-wide election. And the questions are raised because, as you note, the
code does not provide for a wine-only retailer's off-premises permit; nor does the code provide for
a mixed beverage permit that excludes the sale ofbeer. See id at 5, 6 n.4; see also TEX. Mea. BEV.
CODE ANN. tit. 3 (Vernon 2007 & Supp. 2007) (providing for various permits and licenses). Because
we conclude that the 2007 election did not change the local option status of Precinct 5-dry for all
alcoholic beverages-the sale of wine and beer and mixed beverages is unlawful in the precinct.
Accordingly, the county clerk cannot certify "wet" for beer and wine, mixed beverages, or make any
of the proposed modifications even assuming that such modifications were permitted.

3. Richwood

Your fifth and sixth questions relate to applications for Mixed Beverage Permits for locations
in Richwood. Your first ask whether the county clerk may certify locations in Richwood as "wet"
or whe~her the county clerk should decline or qualify the certification as excluding beer, given
Richwood's limitation of beer sales to off-premises only. Request Letter, supra note 1, at 4. You
The Honorable Jeri Yenne - Page 13 (GA-0635)

also ask: "Ifon-premises sale ofbeer remains prohibited in Richwood," whether a Mixed-Beverage
Permit, which by definition includes the sale of beer, may be issued for locations in Richwood. See
id.

Again, your questions assume that the 2007 county-wide election legalized to some extent
the sale of mixed beverages in Richwood. Because we conclude that the election did not change the
local option status of Richwood-sale of beer for off-premises consumption only-it remains dry
for all other alcoholic beverages. Thus, the county clerk cannot certify locations in Richwood as
being in a "wet area" for the sale of mixed beverages and a Mixed Beverage Permit may not be
issued for such locations.
The Honorable Jeri Yenne - Page 14 (GA-0635)

SUMMARY

Under the Alcoholic Beverage Code, the local option status of
a voting unit can be changed only by an election held in that unit.
Additionally, the local option status resulting from elections held in
a justice precinct or a city contained in a county prevails against the
status resulting from elections held in the larger county. Consistent
with the statutory scheme for local option. elections, the term "local
option status" or "status" means the choice of alcoholic beverages
expressly or implicitly prohibited or legalized as a result ofthe local
option elections held in the smaller voting unit. That choice cannot
be changed except through an election held in the same voting unit.

The 2007 county-wide election held in Brazoria County did
not change the local option status of fonner Justice Precinct No.5
("Precinct 5"), the City of Sweeny ("Sweeny"), and the City of
Richwood ("Richwood") resulting from their prior local option
elections. Accordingly, wine and beer sales are unlawful in Sweeny,
and beer sales remain prohibited in Precinct 5 as they were before the
2007 election. Thus, the county clerk cannot certify a location in-
Sweeny as being in a "wet area" for the sale of beer and wine on an
application for a Wine and Beer Retailer's Off-Premise Permit. The
sale of wine and beer and mixed beverages is unlawful in Precinct 5.
Thus, the county clerk cannot certify locations in Precinct 5 as being
in a "wet area" for the sale ofbeer and wine on applications for Wine
and Beer Retailer's Off-Premise Permits or for the sale of mixed
beverages on applications for Mixed Beverage Permits. The sale of
mixed beverages is unlawful in Richwood, and the on-premises sale
of beer remains prohibited therein as was the case before the 2007
election. Thus, the county clerk cannot certify a location in
Richwood as being in a "wet area" for the sale ofmixed beverages on
an application for a Mixed Beverage Permit, and such a permit may
not be issued for a location in Richwood.

Attorney General Opinion H-59 is modified to the extent it is
inconsistent with the conclusions reached here.

KENT C. SULLIVAN
First Assistant Attorney General
The Honorable Jeri Yenne - Page 15 (GA-0635)

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee