R-445
RNEY GENE
F EXAS
PRICE DANIEL
ATTORNEY GENERAL
June 12, 1947
Honorable Perry Lr Jones Opfnion No, v-250
County Attorney
Travis 6%tnty R8l Loeal option status of
Austin, Tsrae GammonSc?$aol Dlatricrt
~0~ 43 w 00ntaima lin
JufstSal?is' Prsolmts NQSp
6 end 0 in Travla Cowatrr
Deer Mro Jonest
Honorable Perry L. Jones, Page 2
"On March 25, 1939, in a local
option election Justice Precinct No.
5 voted WET, permitting the sale of
all alcoholic beverages.
"On October 24, 1946, in a local
option election, Justice Precinct No.
6 voted against sale of all alcoholic
beverages.
"On November 16, 1946, in a local
option election, Justice Precinct No.
5, voted WET.
"You will note there has not been a local
option election in the original Common Sohool
District No. 43, St. Elao and Longview Consoli-
d$efg;;hools since it was voted DRY on January
In view or this fact and under the
Suireme r!!ourt'e
holding in the case of HOUCHINS
VS. PLAINOS, ET AL.,,110 S.W. (2d) 549, is the
Common School District No. 43 dry until an elec-
tion is held in the exact saae area that orig-
inally voted DRY? Or, did that part of Common
School District No. 43 situated in Justice
Precinct No. 5 become 'wet area' when Justice
Precinct No. 5 became 'wet area'?"
We assume throughout this opinion that all e-
lections set forth in your letter were held in accord-
ance with all statutory and constitutional provisions
in efiect at the time of the elections, and that such
elections were valid in all respects,
The authority under which the 1918 election in
Common School District No. 43 was held was Article XVI,
Section 20 of the Constitution of Texas as amended in
1891, and as quoted below:
"The legislature shall at its first session
enact e law whereby the qualified voters of any
county, justice's precinct, town, city (or such
subdivision of'a county as may be designated by
the commissionerss court of said county) may by
e majority vote determine from time to time
whether the sale of intoxicating liquors shall
be prahibited .withFn the prescribed Ifruits."
Article XVI, Section 20 of the Texas Constitution
as adopted in 1891 and as quoted above remained unchanged un-
.
Hmorable Perry L, Jonesp Page 4
.
Honorable Perry L. Jones, Page 6
the State of Texas and in force at the time of
the taking effect of Section 20, Article XVI .
of the Constitution of Texas, it shall oontinue
to be unlawful to manufacture, sell, barter or
exchange in any such county, justice’s precinct’
or incorporated town or oity, any spirituous
vinous or malt liauors or medicated bitters can-
able of producing -intoxication or any other in-
toxicants whatsoever, for beverage purposes, un-
less and until a majority of the.quali.fied voters
in such county or .politi&al subdivision thereof
votinu in an election held for such ouroose shall
determine such to be lawful;. provided that this
subsection shall not .prohibit the sale of alco-
holic beverages~ containing not more than 3.2 per
cent alcohol by weight in cities, counties or- poli-
tioal subdivisions thereof in which the qualified
voters have voted. to leaallze such sale under the
provisions of Chapter 1x6, A&s of the Regular
Session of the 43rd Legislature.” (Emphasis added).
This constitutional provision is the one now in
effect in this state, and the one, under which the question
presented by you must. be decided. The effect of this re-
peal amendment is to legalize the sale of intoxicating
liquors anywhere in Texas except in those specific areas
named in subsection (c) which had voted to prohibit the
sale of intoxicating liquors prior to the bakiw effect
OS Section 20 of Article XVI. In support of this conten-
tion we quote again from the Houchins case, supra:
“By the terms of this amendment, the entire
State, as such is again made wet as to all in-
toxicating liquors; but with certain exceptions
and limitations. In effect, this amendment con-
tains provisions which make any county, justice’s
precinct, or city, or town, dry whioh was dry at
the time it became effective. In other words,
this amendment preserves the status quo as to dry
areas as ther existed at the time .it became ef-
fective. It-therefore preserved as dry any coun-
ty, j ustice’s oreoinct, or city, or town, which
was dry when it went into effect.* (Emphasis
added. )
Under the maxim expressio unius est exclusio al-
terius, (the expression of one thing is exclusive of ano-
ther) , it is ours opinion that, any subdivision not a coun-
ty, justice’s precinot, or ~a11inoorporated town or aity
at the time it voted “dry” was not preserved as a ndryn
area by this section of the Constitution. We are aware
Honorable Perry L. Jones, Page 7
that in the latter part 0r subseotion (0) after the spe-
cific enumeration of counties, justice's preancts, and
incorporated towns and cities this language fs used:
"in such county or politioal subdlvlsionw and woltles,
counties, or political subdivisions thereof.' However,
we think it clear that the words upolltloal subdivision*
refer to those political subdivisions specifically set
forth in the first part of subeeotion (o), namely ooun-
ties, justice9 precincts and incorporated towns ati
cities. The Supreme Court of Texas inthe.language al-
ready quoted interpreting the 1933 provision construed
the words npolltloal subdivision* as lnoluding the ar8a
of any justice's precinct, or town, or.oitg. Such a
contention is further supported by the dootrine of eju%-
dem generis, to the effect that when general words fol-
low specific words in an enumeration, the general words
are construed to embrace only objeots slmiIar in nature
to those.objects enumerated by the preceding specific
words.
That the Legislature interpreted the oonatita- .
tional provision as preserving the dry status only in
counties,, justioe's pracinots and inoorporated oities
.or towns which had VOt8d dry prior to 1919, is shown in
two provisions 0r the Texas Liquor Control Bat.
Artlole 1, Section 23,of the Texas Liquor Con-
trol Act, codified as Arti 666-23 Of V8rnOn'%. Penal
Code, .reads in part 'as follows:
"Whenever th8 term *dry area' Is used in
this Aot,.it shall mean and refer to all ooun-
ties, jostlce'precincts, inoOrpOrat8d cities
or towns wherein'the sale of alooholio b8V8r-
ages,'had been prohibited by valid local option
elections held under the laws of the State in
force at then time of the taking effect of geo-
'tion 20, Article XVI, Constitution of Texas in
the year 1919."
Article 2, Seotion 2 of the abOV8 Act, oodified
as Article 66~7-2 of Vernon's Penal Code, 1% in'part as
r 0110ws:
"It shall continue to be unlawful to manu-
facture, sell, barter or eXChalIg8 in any county,
justice precinct, or inoorporated city or town
any beer exoept in counties, justiae precinots,
or incorporated cities or towns wherein the
voters thereof had not adopted prohibition by
I >. .,.. ‘,
:>,. :’ .Y
Honorable Perry L. Jones, Page 8
local option elections held under . the
. . laws
. . of -
the State of T8xa% and in,force at tne time or
taking effect of Section 20, Article 16 of the
Constitution of T8xasin'lQlQ; . . ."
Both the constitutional provision of 1935 and
the legislative interpretation of that provision as con-
tained in the above quoted language of the Texas Liquor
Control Act contains no language which could possibly
be construed as preserving the Idry" status of a common
school district.. Wa have carefully considered the lan-
guage in the Houohins case to the effect that when an
area voted dry it'remained dry until it was voted w8t
at a subsequent election held in and for the same iden-
tical area which,.had theretofore voted ndry". How8v8r,
in the Houchins case the subdivision considered was an
area which had originally,voted "d.ry9" as.811 incorporated
city and later dissolved its corporate existence and
was aM8Xed t0 a "W8t".Oity. W8 think the language Of
the Houohins case insofar a% It lays down a requirement
for an election in the same identical area which had o-
riginally vote ?dryw is restrioted to the areas orig-
inally voting P"dry" as count s, justice's precinct% or
incorporated towns
It is, therefore, the opinion 0s this depaX'tm8nt
that Article XVI, Section 20 88, adopted in.1919 abolished
all local option area% in Texas, and that the repeal amend
ment of 1935, now in effeot,.preserved only those areas
as "dry" which had voted ndryw prior to 1919 a% a county~,
justice’s precinct or as an incorporated town or city.
Since CommonSchool Distriot No. 43 did not vote in 1918
as one of the subdivis1,on.s speoifically mentioned, th8
area embraced within it% original boundaries must depend
for its local option status on the ooMty, the justice's
preoinot or the incorporated city or town in which it is
located. Since you have stated in your request that Jus-
tice Precinct No.,,6 whioh Includes the East St. Blmo box
and has in its last election voted against the sale of
all alcohloic beverages we are of the opinion that East
St. Elmo is a "dry" area. You have also stated that Jus-
tice Precinct No. 5 which includes the West St. Elmo box
has in its last election voted to legalize the sale of
intoxicating liquors. We are, therefore, of the opinion
that West St. Elmo is a "wet" area.
1. Article.XVI, Section 20, of the Texas Con-
Honorable Perry L. Jones, Page 9
stitution as adopted in 1935 and now in effect
did not preserve Coamon School District No. 43 as
a "dry* area. This constitutional provision pre-
served as "dry" only those areas which had voted
ndryfrprior to 1919 as a county, justhess pre-
cinct, or as an incorporated town or city,
2, East St. Elno is a *dryH area by vfr-
tue of the fact that Justice Precinct No, 6,
of which it is a part, is "dry".
3. West St. Elmo is a Rwetn area by
virtue of the fact that Justice Precinct No,
5, of which it is a part, is "wet."
Yours very truly
ATTORNEYGENERAL OFTEXAS
APPROVED
gL/ aGiLq
ATTORNEY GEI'IERAL
CYM/Jbk:jrb