PRmTE DkyIEr. ., ':.
r--e-- ,. ., ',
August, 9,, 1948
Honorable Sam Dollahite ~, Opinion No..V-657 ~.: “.’
Coxinty Attorney’ i’ ‘~ .,. ~1‘.
Falls County ” ‘: ‘.. Re: Local’option status of area
Marlin, Texas ,. separated from a ‘wet”
precinct and attached to a
Dear Sir: ‘. .*dry” precinct by a Com-
mis~sioners’ Court order
‘~.’ .. .changing the precinct
boundaries. ‘.’
.+our letter requesting an opinidn reads, in part. as
follows:~
.,
“Justice Precinct 5 of Falls County-Texas :
has always been ‘dry”-Justice Precintit 4 has :
‘always been “wet”. Thedivision line between
these two Precincts used to be the MarlinGhilton
~’ road. Several years ago by order of then Co-is-.
‘. sioners Court the boundary line of Justice Pre-
,cindt 5 was moved from the Marlin-Chilton road
’to a line running about 300 yards South of said
_,
,‘road.
“Up to the time of this order the territory
taken off of Precinct 4 and made a part of Pre-
cinct 5 in said order, had been in the “wet” area; ”
‘: ‘~ “The question involved is whether the order
bf the court so changing the boundary,prohibits the
saIe ‘of beer in’that portion of .Precinct 4 which.was
made.a part of Precinct 5 by said order.” ..
. . ,,
1 The question for .our decision is the effect the annex-
ation of part of a “wet” ju~stice precinct to a “dry” justice pre-
cinct has upon the local option status of the annexed portion. Both
.
the Constitution and Statutes of Texas contain provisions setting
forth the method for adopting or rejecting prohibition. Subsection
(b) of Article XVI, Section 20, of the Texas Constitution as’amend-
ed in 1935 provides:
.
“The Legislature shall enact a law or laws
whereby .the qualified voters of any county, jus-
tice’s precinct or incorporated town or city may
by a majority vote of those voting, determine from
time to time whether the sale of intoxicating liquors
284 Honorable Sam Dollahite, Page 2 (V-657)
for beverage purposes shall be prohibited or legal-
ized within the prescribed limits; and such laws
ZliXl contain provisions for voting on the sale of
intoxicating liquors of various types and various
alcoholic content.” (Emphasis ours)
Pursuant to the above constitutional mandate, the
Legislature in 1935 passed the Texas Liquor Control Act regu-
lating the sale of intoxicating beverages and providing among other
things for the holding of local option elections. These provisions
pertaining to elections are codified as Articles 666-32, et seq.,
Vernon’s Penal Code.
Numerous cases have been decided by the Texas
courts in which a part of a “dry” precinct was annexed to- a
“wet” precinct, and the courts have uniformly held that the “dry”
portion retained its local option status regardless of the annexa-
tion. See the cases of Medford v. State, 74 S.W. 768; Woods v.
State, 75 S.W. 37; Oxley v. Allen, 107 S.W. 9455 Goodie Goodie
Sandwich, Inc. v. State, 138 S.W. (2d) 906. It is obvious that the
same rule would apply to the reverse of the above proposition,
i.e., a portion of a *wet’ justice precinct annexed to a “dry”
justice precinct. The answer to this question is to be found in
the language used by the Supreme Court of Texas in the case of
Houchins v. Plainos, 130.Tex. 4l3. 110 S.W. (2d) 549. In that
case a “dry” area which had formerly been an independent mu-
nicipality (Houston Heights) was annexed to a “wet” city (Hous-
ton). The question for then court’s determination was whether or
not that “dry” area which was annexed to the “wet” city had be-
come “wet” solely by reason of the annexation. The court in its
.opinion stated:
“When the people of Houston Heights voted to
become a part of the wet city of Houston, they did
not vote on local option at all. This must be true,
because, under the law in effect, when Houston Heights
voted dry, and also under the law in effect when Hous:
ton Heights voted annexation with the city of Houston,
a territory once voted dry could only be voted~ wet by
strict compliance with the then existing local option
laws. Certainly, such local option laws did not per-
mit local option once voted into effect to be voted off
by merely voting on a collateral matter. A reading
oi such statutes clearly negatives such a conclusion.
fn this regard t it is settled as the law of this state
that where a power is expressly given by the Consti-
tution, and the means by which, or the manner in
which it 1s to be exercised. IS prescribed, such means
or manner is exclusive of all others. Parks V. West,
102 Tex. 11, 111 S. W. 72b. At the time the City of Hous-
Honorable Sam Dollahite, page 3 (V-657) ” ‘,:i in :,I~: ,: ‘~.L