Untitled Texas Attorney General Opinion ( 1939 )

Gerald C. Mann AEJSTKW aa. T-s
ED
Hon. 0. Kennedy Opinion No. 04658
County Attorney Re: Sufficiency of petition re-
Bee County questing local option elec-
Beeville, Texas tion.
Dear Sir:
This will acknowledge receipt of your letter of
November 6, 1939, in which you seek the opinion of this
Department on the question of whether or not a proposed
local option petition, a copy of which is attached to your
letter, is sufficient.
You advise that Bee County Is *‘wet” and that the
sale of all liquors, including beer and wine, is now legal
and that an election is to be held to determine whether
such county is to remain nwetN8.
You further advise that the “dry forces in this
county want to present to the commissioners’ court a peti-
tion to order a county-wide election to submit to the vot-
ers the question of whether or not the sale of all liquors
should be prohibited.” We assume that such proposal con-
templates the inclusion of beer, and it Is upon this assump-
tion that this opfnion is based.
A review of the definitions of llalcohollc bever-
age ‘I and 811iquorn contained in the Texas Liquor Control Act
reveals the necessfty of limiting the opinion to the assump-
tion just made.
t*Alcoholic beverage” as defined by the Act “shall
mean alcohol and any beverage containing more than one-half
of one per cent of alcohol by volume which is capable of
use for beverage purposes, either alone or when diluted.”
“Liquor” as defined by the Act, “shall mean any
alcoholic beverage containing alcohol in excess of four per
centum by weight* unless otherwise indicated.. Proof that
an alcoholfc beverage is alcohol spirits of wine, whiskey,
liquor, wine brandy, gin, tequilia, mescal habernero or
harreteago, shall be prima facie evidence i hat the same is
liquor as herein defined.‘”
. . . -.
Hon. 0. Kennedy, page 2
Thus, it Is clearly seen that alcoholic beverage
includes liquor, beer, wine &d all other alcoholic drinks
containing alcohol of more than one-half of one per cent by
volume.
The proposed petition reads:
“LOCALOPTIONELECTIONPETITION
“TO TRE HONORABLE
COMMISSIONERS’
COURTOF
BEE COUNTY,TEKAS:
“We, the undersigned, constituting at least
ten per cent (10%) of the qualified voters of
Bee County, Texas, according to the vote for Gov-
ernor of the State of Texas in the general elec-
tion next preceding this petition, respectfully
petition your honorable body to order an election
in Bee County, Texas, at which election there
shall be submitted te following question:
“!For prohibiting the sale of eJl alcoholic
liquors. V
UIAgainst prohibiting the sale of all alco-
holic liquors.’
Respectfully submitted,”
A close examination of the Texas Liquor Control Act
does not reveal a form to be used for the petition to the com-
missioners’ court.
Section 32 of such Act provides in part:
“The Commissioners Court of each county in
the State upon its own motion may order an elec-
tion to be held by the qualified voters in said
county, to determine whether or not the sale of
liquors shall be prohibited or legalized in such
county, and such Court shall order a local option
election whenever petitioned to do so by as many
as ten (10) per cent of the qualified voters of
said county, or of any justice precinct, city or
town, taking the votes for Governor at the last
preceding general election as the basis for de-
termining the qualified voters in any such county,
or political subdivision....@
. a,.
Hon. 0. Kennedy, page 3
Section 40 of the Act provides that the commission-
ers’ court may, as provided in Section 32, supra, order an
election for the purpose of determining whether alcoholic bev-
erages of various types may be legalized or prohibited. The
second provision of Section 40 of the Act reads:
“In areas where the sale of all alcoholic bev-
erages has been legalized one or more of the fol-
lowing issues shall be submitted in any prohibitory
election: I8
Under such orovision there. appear several propositions that may
be submitted, among which is sub-section (f) and reads:
“‘For prohibiting the sale of all alcoholic
beverages’ and ‘Against prohibiting the sale of
all alcoholic beverages. 111
Looking to the form of petition presented as herein-
above quoted, we believe the same to contain the requisites
pointed out in Section 32, supra, with exception that the word
“anI1 appearing in line 5 of the body of the petition should
be changed to “art and followed by “local option”, so as to here-
after read I(... respectfully petition your honorable body to
order a local option election.. ..w We likewise believe the
propositions to be submitted, bearing in mind the assumption
upon which this opinion is based, should read:
“For prohibiting the sale of all alcoholic
beverages” and “Against prohibiting the sale of
all alcoholic beverages. *‘
Trusting that we have satisfactorily answered your
inquiry, we are
APPROVED NOV 17, 1939 Very truly yours
/s/ Gerald C. Mann ATTORNEY GENERALOF TEXAS
ATTORNEY GNNNRALOF TEXAS BY /s/ Lloyd Armstrong
Lloyd Armstrong. Assistant
APPROVED:OPINIONCOMMITTNN
BY: BWB, CHAIRMAN
LA:AW:wb