_.-. -..
E OWNEY GENERAL
TEXAS
R-462
AURTIN 1~.TExas
PRICE DANIEL
ATTORNEY
GENERAL
June 23, 1947
Hon. C. A..Poundr opinionNo. V-262
CountyAttorney
Chamber6County Re: Local option ntaturof
Anahuac,Texan JurrticePrecincta,Num-
bers 1, 2, 5 and 6 In
Dear Mr. Pounds: ChambersCounty.
You have requestedan opinionconcerningthe local option
statusof JusticePrecinctsRumbers1, 2, 5 and 6 in ChambersCounty.
Due to the fact that you have net forth the pertinentfact6 concerning
each precinctin eeparateletters,and have requesteda reparateopinion
on ~theatatua of each precinct,we shall considerthem In numericalorder.
Your letter relatingto Ju6ticePrecinctNo. 1 18 aB follows:
“In the year 1898, a local optionelectionwae held In
JusticePrecinctHo. One of ChambersCounty,,Texas, which
resultedin the sale of intoxicatingliquorsbeing prohibi-
ted thereinand in 1933 a local optionelectionwan held In
said PrecinctNo. One to determinevhetheror hot the sale
of 3.2 beer shouldbe legalizedwhich electionreeultedin
prohibitingthe sale of such beer, and in 1936 a county-wide
electionwas held in said ChambersCountyto determinewheth-
er or not the rale of all alcoholicbeverageashouldbe le-
galizedin said County,which electionrelrulted in favor of
legalizingthe Bale of mch beverages.
“Pleasebe kind enoughto adviseme whetheror not said
PrecinctNo. One shouldbe claaseda8 a wet area or a dry
area.”
We aamme throughoutthin opinionthat all election8referred
to have been held in accordancewith the constitutional
and statutory
requirement8in effectat the time of said electionsand that they are
valid in all respects.
The electionof 1898 which resultedin prohibitingthe male
of intoxicatingliquorsin JurticePrecinctNo. 1 wae held under authority
of ArticleXYI, Section20 of the Texas Constitutionas adopted In 1891.
This provlalonwan aB follown:
“The Legislatureshall at it.8firat seanionenact a law
wherebythe qualifiedvoters of any county,justice’sprecinct,
town, city (or such subdivisionof a countyam may be designated
..- ,--_
Hon. C. A. Pounds,page 2 (v-262)
by the commissionerscourt of said county),may by a
majorityvote, determinefrom time to time whetherthe
sale of Intoxicatingliquorashallbe prohibitedwithin
the prescribedlimits."
ArticleXVI, Section20, aa above set out, remainedin effect
from l&l until 1919 when the prohibitionamendmentwas adopted. This
provision,in part, stated:
"The manufacture,sale,barter and exchangein the
State of Texas, of spirituous,vinour or malt liquorsor
medicatedbitters capableof producingintoxication, or
any other intoxicantwhateverexcept, for medicinal,me-
chanical, scientificor sacrsmentalpurporen,are each
and all herebyprohibited."
The prohibitionamendmentof 1919 remainedin effect until August
26, 1933, when at en electionthe so-called"beer amendment"was adopted.
ArticleXVI, Section20, as adopted in 1933, provided:
"Sec. 20 (a). The manufacture,sale,barter or ex-
change in the State of Texas of spirituous,vinous or malt
liquorsor medicatedbitters capableof producingintoxi-
cation,or any other intoxicantwhateverexcept vinoue or
malt liquorsof not more than three and two-tenthsper cent
(3.2$)alcoholiccontentby weight, (exceptfor medicinal,
mechsnical,scientificor sacramentalpurposes)are each
and all hereby prohibited. The Legislatureshall enact
laws to enforcethis Section,and may from time to time
prescriberegulationsand limitationsrelativeto the
manufacture,sale, barter,exchangeor possessionfor sale
of vinous or malt li uore of not more than three and two-
tenths per cent (3.23) alcoholiccontentby weight;pro-
vided the Legislatureahall enact a law or laws whereby
the qualifiedvoters of any county,justice'sprecinct,
town or city,may, by a majorityvote of those voting,
determinefrom time to time whetherthe sale for beverage
purposesof vinous or malt liquorscontainingnot more
than three and two-tenthsper cent (3.a) alcoholby
weight shallbe prohibitedwithin the preecribedlimits;
and providedfurtherthat in all countiesIn the State of
Texas and in all politicalsubdivisions thereof,wherein
the sale of intoxicatingliquorshad been prohibitedby
local optionelectionsheld under the laws of the State
of Texas and in force at the time of the taking effectof
Section20, Article 16, of the Constituticnof Texas, it
shall continueto be unlawfulto manufacture,sell,barter
or exchangein any such countyor in any such political
subdivisionthereof,any spirituous,vfnous or malt liquors
or medicatedbitters,capableof producingintoxicationor
any other intoxicantwhatsoever,unless and until a majority
Eon. C. A. Pounds,page 3 (v-262)
of the qualifiedvoters in said countyor politicalsub-
divlaionthereofvoting in an electionheld for such pur-
pose shall determineit to be lawfulto manufacture,sell,
barter and exchangein said county or politicalsubdivision
thereofvinous or malt liquorscontainingnot more than
three and two-tenthsper cent (3.2$)alcoholiccontentby
weight, and the provisionof this subsectionshall be self-
enacting." (Emphasisadded.)
The effectof this amendmentie best expressedin this language
appearingin the case of HouchinsP. Plainos,110 S. W. (2d) 549:
"The effect of thia provisionwas to make the area of
any county,justice'sprecinct,or town, or city,which was
dry at the time the entire statebecame dry under the amend-
ment of 1919, still dry territoryibut with the privilegeof
becomingwet territoryas to vinous and malt liquorsof not
more than three and &o-tenths per cent alcoholiccontentby
60 voting at an electionheld in and for the exact area that
had originallyvoted dry." (Nmphaalsaddad.)
It appears,therefore,that upon the adoptionof the constitu-
tional amendmentin 1933, JusticePrecinctNo. 1 was preservedas a "dry"
area by virtue of the electionof 1898, which resultedin the prohibition
of intoxicatingliquors. However,ArticleXVI, Section20, as adopted
in 1933 gave to a justiceprecinctthe right to hold an electionfor the
purposeof determIningwhether or not vinous and malt liquorsof not more
than 3*2 per cent alcoholby weight shouldbe legalized. Under this au-
thorlt,v,,
an electionwas held which resultedin JusticePrecinctNo. 1
mainta-i,ning
its "dry" status.
This amendmentof 1933 remainedin effectuntil August 24, 1935,
when at an election,ArticleXVI, Section20, was again amendedto read:
"(a) The open saloon shallbe and is herebyprohibited.
The Legislatureshall have the power, and it shall be its
duty to definethe term 'opensaloon'and enact laws against
such.
"Subjectto the foregoing,the Legislatureshall have
the power to regulatethe manufacture,sale, possessionand
transportation of intoxicatingliquore,includingthe power
to establisha State Monopolyon the sale of distilledliq-
uors.
"('+jTis,e
Legislatureshall enact a law or laws whereby
tr,cqualifiedvoters of any county justice'sprecinctor in-
corporatedtown or city, may, by a majorityvote of those
votl,ng,determinefrom time to time whetherthe Sale of
. , .-
Hon. C. A. Pounds,page 4 (v-262)
intoxicatingliquorsfor beveragepurposesshall be prohibited
or legalizedwithin the prescribedlimits~and such lava shall
containproviaionafor voting on the sale of intoxicatingliq-
uom of varioustypes and variousalcoholiccontent.
“(c) In all countiee,justice’sprecinct6or incorporated
towns or citieswhereinthe eale of intoxicatingliquorshad
been prohibitedby local optionelectionsheld under the laws
of the State of Texas snd in force at the tima of the taking
effect of Section20, Article XVI of the Conetitutionof Texas,
it shall continueto be unlawfulto lllanufacture, sell,barter
or exchangein any such county,justice’sprecinctor incorpo-
rated town or city, any epirituoue,vinous or malt liquorsor
medicatedbitters capableof producingintoxicationor any oth-
er intoxicantswhatsoever,for beveragepurposesunless and un-
til a majorityof the qualifiedvoters in such countyor poli-
tical subdivisionthereofvoting in an electionheld for such
purpose shall determinesuch to be lawful;providedthat this
subsectionshall not prohibitthe sale of alcoholicbeverages
containingnot more than 3.2 per cent alcoholby weight in
cities,countiesor politicalsubdivision8 thereof in which
the qualifiedrotere have voted to legalizesuch sale under
the provisionsof Chapter1.16,Act# of the Regular Sessionof
the 43rd Legislature.”
This amendment,commonlyreferredto as the repealamendment,
is the conetitdionalproviuionwith reepectto local optionwhich ia
in effect at the presenttime. It is also the provisionunder which the
1936 county-wideelectionin ChambersCountywas held. We again refer
to languagein the case of Flouchins
v. Plainos,supra,interpretingthe
amendmentof 1935:
“By the terms of this amendmentthe entire State,as
such, is again made wet as to all,Wcoxicating liquors;but
with certainexceptionsand limitations. In effect,this
amendmentcontainsprovisionswhich make any county,jus-
tice’s precinct,or city, or town dry which was dry at the
time it became effective. In other words, this amendment
preservesthe status quo as to dry areas a8 they existed
at the time it became effective. lt thereforepreserved
as dry any county,justice’sprecinct,or city, or town
which was dry when it went into effect. Of course,, any
such area has the right to become wet by 80 voting at an
electionlegallyorderedand held for that purposeunder
presentlocal option statutes. In this connection,how-
ever, we again note that such electionmust be held &
the same area that originallyvoted dry.” (Emphasis
added.)
Hon. c. A. Pounds,page 5 (v-262)
In November,1935, less than three months after the adoption
of ArticleXVI, Section20, an non in effect,the Legislaturepassed the
Texas LiquorControlAct. Article I, Section23 of this Act, codified
a6 Article 666-23,Vernon'sPenal Code, defines"dry", end "wet" areas
as follows:
"Wheneverthe term 'dryarea" is used in this Act it
shall mean and refer to all counties,justiceprecincts,
incorporatedcitiesor towns whereinthe aale of alcoholic
beverageshad been prohibitedby valid local optionelec-
tions held under the laws of the State in force at the time
of the taking effect of Section20, ArticleXVI, Constitu-
tion of Texas in the year 1919. It likewiseshallmean and
refer to any such areas where sale of such alcoholicbever-
ages shallbe prohibitedunder the terms of this Act.
"The term 'wet area' shall mean and refer to all other
areas of the State . . . ."
Under the constitutional
and statutoryprovisionsabove set
out and under the Interpretation
given these variousprovisionsby the
courte,it appearsbeyond questionthat after the electionof 1933,
JusticePrecinctNo. 1 remaineda "dry" area. The next questionfor us
to determineis the effecton JusticePrecinctlo. 1 of the county-wide
electionheld in 1936.
The appellatecourtsof Texas have uniformlyconstruedthe local
option electionprovisionsto protectthe "dry',statusof the smallersub-
divisionsof the whole. The earliestauthoritywe have found supporting
this contentionis the case of Aaron v. State, decidedby the Supreme
Court in 1895 and reportedin @ S. W. 267. Judge Hurt, speakingfor
the court in this case, used this language:
"It appearsfrom the recordthat before the Bale was
made an electionhad been held under the act of 1893 for
the entire county,which resultedin the defeat of prohi-
bition. It la contendedthis defeat abrogatedthe law in
Precinct8. In otherwords, If local option is legallyin
force in a precinct,made so by electionin that precinct,
that a subsequentelection,held for the entire county,
resultingagainstprohibition,has the effectto repeal or
abrogatelocal option in that said precinct. To this propo-
sitionwe cannotagree. By referenceto the variousprovi-
sions of the local option statuteswe are informedthat the
people of the entire county cannot expresstheir views upon
this subjectso as to defeator repeallocal option in any
sliodivisionof the county. Nor can the people of a precinct
by a vote defeatprohibitionin any subdivisionof that pre-
cinct,town or city. The countymay force prohibitionby a
HOG. c. A. pounds,page 6 (v-262)
vote over precinctswhich are not in favor of it, and 80 may.
precinctover cities,towns, or nubdivisionathereofthat max
not be in favor of it, but cannotforce,by vote, repeal of
it, in any town, city, or subdivieionthereof. The pe~ople of
the county,outaideof the territoryto be affected,have no
right to vote at all a8 to the law in that subdivieion.. s ."
(&uphaaisours.)
The Aaron caee hae been cited frequentlyin recent caaea. The
above languagewas quoted in the cane of Jacksonv. State, decidedby
the Court of CriminalAppeals in 1938 and reportedin 1.18S. V. (2d) 313.
Judge Graves,speakingfor the Court, eaid:
"It has long been recognizedby this court'sdecisions
that when the voters of any justiceprecincthave, through
the medium of an electionproperlycalledin and for such
precinct,or politicalsubdivisionof any county,determined
by a majorityvote that the eale of intoxicatingliquor6
ehallbe prohibitedin such precinctor other subdivieion,
that it shall continueto be thue unlawfuluntil the voters
of such precinctor qubdivisionmhall determineotherwiee.
In other wordrr.intoxicatingliauors.once havingbeen voted
out, can only be voted back-bya'majorityvote 02 the identi-
cal territorythat had voted much liquor6out. To this ef-
fect ie our holdingin the early case of Aaron v. State, 34
Tex. Cr. R. 103, 29 S. U. 267, in which Judge Hurt said
. . . ." (Emphasisours.)
To the same effectare the ca8es of Griffinv. Tucker, decided
by the SupremeCourt in 1909 and reportedin 102 Tex. 420, 118 S. W. 635;
Go0dl.eGoodie Sandwich,Inc., v. State, decidedby the Dallas Court of
Civil Appeals in 1940, and reportedin,138 S. U. (2d) 906; Coker,County
Judge v. Kmeicik,decidedby the Commiseionof Appeals in 1935 and reported
in 87 S. W. (2d) 1076; Powell ve Smith,decidedby the Fort Worth Court of
Civil Appeals in 1936, and reportedin 90 S. W. (2d) 942.
It is, therefore,the opinionof thin departmentthat the county-
wide local option electionof 1936 resultingin chambersCounty legalizing
all alcoholicbeveragesdid not affectthe "dry" status of JusticePre-
cinctX0. 1, and said precinctremained"dry'".
Your letterwith respectto JusticePrecinctNo. 2 of Chambers
County is as follows:
"In the year 1916 a local option election~a8 he.1.d
in
JusticePrecinctNo. Two of ChambersCounty,Texas, which re-
sultedin the sale of intoxicatingliquorsbeing prohibited
therein;in 1933, a local option electionwas held in said
PrecinctHo. Two to determinewhether or not the sale of 3.2
Hon. C. A. Pounds,page 7 (v-262)
beer shouldbe legalized,Which electionresulteti. in,legaliz-
ing the sale of such beer, and in 1936 a county-w& election
was held in said Chamber8Countyto determinewhether or not
the sale of all alcoholicbeveragesshouldbe legalized in
said County,which electionresultedin legalizingthe sale
of such beverages.
"Pleaeebe kind enoughto adviseme whetheror not aaid
PrecinctNo. Two shouldbe classeda8 a wet area or a dry area."
Subsection(c) of Section20 of ArticleXVI expresslyetatee
that the sale of alcoholicbeveragescontainingnot more than 3.2 per
cent alcoholby weight shall not be prohibitedin politicalsubdivisions
which had ~votedto legalizeeuch eale. This languageis quotedas fol-
lows:
11
. . . . providedthat this subsectionshall not prohibit
the sale of alcoholicbeveragescontainingnot more than 3.2
per cent alcoholby weight in cities,countieeor political
subdivieions thereof in which the qualifiedvotershave voted
to legalizesuch sale under the provieionsof Chapter11.6,
Acts of the Regular Sessionof the 43rd Legislature."
In additionto Article 666-23,Vernon'sPenal Code, already
quoted,the Texas LiquorControlAct containeda furtherprovisionwith
regardto local option status. This provisionia Article II, Section
2 of the above Act, codifi,ed
as Articl~e
667-2 of Vernon'sPenal Code and
is,,in.part, as follows:
1%
. . .
"lr.s,hallcontinueto be unlawfulto manufacture,sell,
'barter, or exchangein any county,,justice precinct,or in-
:cc,porated ,z:j,ty or town any beer ex-ept in counties,justice
pI-eCl.nCt,B, or incorporated ci.t!,esor towns whereinthe voters
thereofhad not adoptedprohibit:ion 3y local optionelections
held ,ILnder the l~awsof the State of Texas a,n,d. in,force at the
rime of taking effect of Section20, Arttrl~e 1.6of the Consti-
tu+ion of Texas in,.1919;exceptthat '.ncounties,juet;ice pre-
!'3nct. 8) or in.~o:rporwt.ed cit.i.esCITfown8wherei,n a majorit~y of
the v&em h,ii,ve voted tro legdiw :.hesale of beer in accord-
ar;.ze wit.'rt~h~1.oca.l optiorl,prov,;sions of Chapter1.16,Acts cf
the Regu.:.ar Sessi,c:n of the Forty-t,hird Legislature,or in ac-
cr,,rdance vi?h the 7,:) :a1 opt.:on prr,vi,si~+ns, 32 t,o 40,
sect';.:,xs
I,:,.?l !58~i,W)C,l.f Arki.,3e I:,'of ELolmeBill No. ‘7, General Iavs of
T~.x~s,Se-on.:1 ~a,lle,d SessIw of t&t-. Fort:?-Pourt:L:
:~?g,lElat
'r:re
,
i;rar:,v ame:dmentsthereof,beer as hereIn def?.ned may be manu-
fac~tured, distributedan3 sold as hereinprovi.ded. e . ell
Hon. c. A. Pounds,page 8 (v-262)
This provieion,aa does the constitutionalamendmentof 1935,
recognizesthe BtatuB of those Bubdivieionswhich had legalized3.2 beer
under the 1933 amendmentof the TeXaB Constitution.
We direct your attentionto the case of Tilleraonv. State,
decidedby the Court of CriminalAppeals in 1942, and reportedin 159
s. w. (2d) 502. In this caee, a county-widelocal option electionhad
legalizedthe sale of 3.2 per cent beer in the county. The court used
thia language:
“The definitionof a ‘dryarea’ and of a ‘wetarea’
Seem to be relativeterma a8 Bet out in Subdivision23 of
Art. 666, Vernon’sAnnotatedPenal Code, and from the
facts stated in the foregoingquotationfrom the court’s
qualificationof the bill it would appearto be the cor-
rect conclusionthat Dallas County is a 'dryarea' &B to
the Bale of whiskeyand other alcoholicbeveragescon-
tainingmore than 3.2 per cent alcoholby weight. At the
Bame time, it is a ‘wetarea’ a8 to beer and those liq-
UOrB which do not containmore then 3.2 per cent of al-
coholby weight.’
In the case of Whitmirev. State, 94 S. W. (2d) 742, the Court
of CriminalAppeals,speakingthroughJudge Hawkins,said:
"We call.attentionof proaecutoraand trial judges
to tae fart ,that: the descriptionin the indictmentor in-
furmationof‘the i.iq:i s.)fsr as the sale, etc., of
6 pi P :~i;~.i,5:a i,r,i~,.oxicat;i,~7,g I,-? rpor j~s concerned, and at the
saue t;me '70"wet. area" as it relatesto sales,etc., of
m%lt l.iquor, sl,t.hough such li'$iormay be intoxicating,'
From the facts preser&edi,nyour letterar:dunder the reaaon-
i.ngabove, it appearsthat JusticePrecinctNo. 2, under the amendment
of 1933 was preserveda8 a “dry-area” 3~ vj,rtu,eof an el~ection
held in
1916, and that at an el.ectionheld i,r:
1933, under authorityof the 1933
amendment,that 3.2 per cent 'beerwas :.egalized.
I:t. is, therefore,the op.fnion of this Departmentthat JUstiCe
PrecinctRo. 2 of ChambersCounty ie a “dry area” as to the sale of whiskey
and other alrobolic beveragescontai~ni.ngmore than 3.2 per cent alcohol
hy weight,and i.a a "wet area" as to beer and those beverageswhich do
not c,:on?:aln,
more than 3.2 per cent of iilcohol by weight.
Your letter settingforth the facts with respectto Justice
PrecinctNo. 5 of ChambersCounty is as follows:
r.. I
Eon. C. A. Pounds,page 9 (v-262)
"In the year 1913 a local optionelectionwa6 held in
JusticePrecinctNo. Five of Chamber8County,Texas, which
resultedin the Bale of intoxicatingliquorsbeing prohibi-
ted therein;in 1933 a local optionelectionwas held in
aaid PrecinctNo. Five to determinewhetheror not the Bale
of 3.2 beer shouldbe legalized,which electionresultedin
legalizingthe sale of such beer, and in 1936 a countywide
electionwas held in eaid ChambersCountyto determine
whether or not the aale of all alcoholicbeveragesshould
be legalizedin aaid County,which electionreeulted In le-
galizingthe eale of much beveragea.
"Pleasebe kind enoughto adviseme whetheror not
8aid PrecinctNo. Five shouldbe ClaBBedas a wet area or a
dry area."
Under the same reasoningappliedin the case of JusticePrecinct
No. 2, we are of the opinionthat JusticePrecinctNo. 5 of Chambers County
is a 'dry" area as to the aale of whiskeyand other alcoholicbeverages
containingmore tban 3.2 per cent alcoholby weight,and a "wet" area a8
to beer and those beverageswhich do not containmore than 3.2 per cent
of alcoholby weight.
Your letter concerningJusticePrecinctNo. 6 of ChambersCounty
is a8 follows:
"In the year 1916, a local optionelectionwas held in
JusticePrecinctNo. Six of ChambersCounty,Texas, which re-
sultedin the sale of intoxicatingliquorsbeing prohibited
therein;in 1933 a local optionelectionwas held in said
PrecinctNo. Six to determinewhetheror not the sale of 3.2
.beer should'belegalized,which electionresultedin legaliz-
ing the sale of such beer, and in 1936 a countywideelection
was held in said ChambersCountyto determinewhetheror not
the sale of all alcoholicbeveragesshouldbe legalizedin
said County,which electionresultedin legalizingthe sale
of such beverages.
"Pleasebe kind enoughto adviseme whetheror not said
PrecinctNo. Six shouldbe classedaa a wet area or a dry
area."
It is the opinionof this departmentunder the authoritiescited
above that JusticePrecinctNo. 6 of Ch,anibersCounty,Texas, is a "dry"
area a8 to the sale of whiskeyand other alcohol~icbeveragescontaining
more than 3.2 per cent of alcoholby we,igh,ht,
and a "wet" area as to beer
and those beverageswhich do not containmore than 3.2 per cent alcohol
by weight.
Hon. C. A. Pounds,page 10 (v-262)
SUMMARY
The county-wideelectionin ChambersCounty
in 1936 which resultedin legalizingthe sale of all
alcoholicbeveragesdid not affect the "dry" statusof
JusticePrecinctNo. 1 of said County.
JusticePrecinctsNoe. 2, 5 and 6 of Chambers
Countywere "dry" areae as to the lraleof whiskeyand
other alcoholicbeveragescontainingmore than 3.2 per
cent alcoholby weight and "wet" areaa as to beer and
those beverageswhich do not containmore than 3.2 per
cent alcoholby weight,and the county-wideelection
in ChambersCounty in 1936 did not affectthe Btatus
of JusticePrecinctsNos. 2, 5 and 6.
Yours very truly,
AWORNEY GENERALOFTEXAS
By /s/ ClarenceY. Mills
ClarenceY. Mills
Assistant.
CYM:rt:lm
APPROVED:
/s/ Price Daniel
ATTORNEYGENERAL.