Untitled Texas Attorney General Opinion ( 1940 )

.,-- .
Gerald C. Mann
Hon. ,A. E. Hickerson Opinion No. O-2834
County Auditor Re: It would be legal to pay the
Montgomery County expense of a county-wide local
Conroe, Texas option election mentioned herein.
Dear Sir:
Your letter of October 17, 1940, requesting an opin-
ion of this Department upon the question as herein stated has
been received.
We quote from your letter as follows:
“On October 14, 1940, the Commissioners’
Court of Mont,gomery County sitting in Regular
Session received a petition calling for a
county wide local. option for or against the
sale of beer. This election was called for
November 2, 1940.
“My attention has been called to the fact
that the following local option elections have
been called and held in the following Just ice
Precincts of Montgomery County:
“J. P. Precinct 4, Nlection held April 27 1940.
J. P, Precinct 8, Xlection held May 4, 1440.
J. P. Precinct.2, mlection held Sept. 28, 1940.
“In view of the above elections? would
. it - be
legal to pay the expense of the local- optlon elec-
tion called for county wide November 2, 1940?”
This Department held in Cpinion No. O-286 that “a
local option election may be held in a justice precinct to
determine whether to prohibit or legalize the sale of beer
containing in excess of 4% by weight, regardless of the fact
there is within the precinct a city which voted less than one
year ago to prohibit the sale of’ this type of beer. If the
election results in a majority of the voters of the entire
precinct favoring the prohibition, the entire justice precinct
will be dry insofar as the type of beverage is concerned; if
a majority vote favorable to sale of such alcoholic beverage,
.-.
Hon. A. 1’. Hickerson, page 2
the dry status of the city will remain as it now is, until and
unless another election be held within and for said city chang-
ing its status. In such event, that part of the justice’s pre-
cinct outside of the limits of such city will be wet to the
extent that sales of beer not exceeding 4% alcohol by weight
will be legal.”
Montgomery County as a whole is now wet as far as the
sale of beer is concerned. However, there are certain precincts
within the county which are dry.
The election provisi.ons of the present Ii uor Control
Act are contained in Sections 32 and 40 of Article %66, Vernon’s
Annotated Penal Code, based on paragraph (c) of Section 20,
Article AVI of the Constitution. The constitutional provision
sanctions local option elections in the following olitical sub-
divisions of a county: (1) the entire county; (27 a justice
precinct; (3) an incorporated city or town.
E,ection 32 of the Liquor Control Act provides the
commissioners1 court of each county in the State upon its own
motion may order an election for the whole county; but upon
petition of 10 per cent of the qualified voters of the county
or of any justice precinct, city or town, it shall order such
election for such political subdivision. Provided, however,
after the first local option election held as provided in this
Act in any county, justice precinct, incorporated town or city,
no subsequent election upon the same issue in the same politi-
cal subdivision shall be held within one (1) year from the
date of the preceding local option election in said county or
said political subdivision of said county.
Xe construe your question to be whether or not a
county-wide local option election can be legally held for the
county on November 2, 1940, and if the county can legally pay
the expense of such an election since certain justice precincts
in the county have held similar elections within the respective
precincts less than a year prior to the time for which the
county-wide local option election is to be held.
In the case of Griffin v. Tucker, 118 .s.:J:. 635, the
Supreme Court held a larger subdivision might hold an election
irrespective of the status of the smaller subdivisions therein.
;yn;at case local option had prevailed in a justicels pre-
but an election was subsequently called in a commission-
ers’ &ecinct which embraced within its territorial limits
the justice’s precinct. The Court said:
Hon. A. E. Hickerson, page 3
"It is true that, when the prohibitory
rule is put in force it cannot be repealed
or displaced except iiy the vote of the dis-
trict which adopted it. It is quite as true
that an election however resulting, in a
larger including subdivision, has no such ef-
feet. If it results in the defeat of prohi-
bition, the rule remains unaffected in the
territory that has before adopted. If it re-
sults in the adoption of prohibition, that
rule is extended to the whole, where before
it was enforced only, in part of the terri-
tory. We see nothing in the statutes
or the ~o&~itution by force of which the
right of a subdivision to have the election
thrown out throughout its extent may be taken
away by the action of part of its territory
constituting a smaller one. . . .'I
In a local option "stock law" election it was held a
commissioners' precinct included a city which had theretofore
adopted the ":ztoCk law" did not render the election void. Lam-
bert v. .:;c.ur3.oc.:,, 285 S.W. 679; Bishop v. State, 167 S.':!. 363.
In view of the foregoing authorities you are respect-
fully advised that it is the opinion of this Department that the
above mentioned county-wide local option election can be legally
held notwithstanding the fact that justice precincts have held
similar elections within one year prior to the county-wide elec-
tion and thtit the county can legally pay the expense of such
election.
tie are enclosing herewith a copy of our Opinion No.
O-286, above referred to.
Trusting that the foregoing fully answers your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF TUAS
By /s/ Ardell Williams
Ardell Williams, Assistant
&PRoVE;DOCT 25, 1940
/s/ Gerald C. i%nn
ATTORNEY GENUUUOF TEXAS
APPROVEiD: OPINIONCOMMITTEE
BY: BWB. CH,AIRMAN
AW:BBB:wb '
ENCLOSURE