Untitled Texas Attorney General Opinion ( 1975 )

February 4. 1975
The Honorable George E. McCrea Opinion No. H- 515
Tom Green County Attorney
301 Courthouse Re: Scope of local option
San Angelo, Texas 76901 election where dry area
redistricted into wet
precinct.
Dear Mr. McCrea:
You have submitted a series of questions having to do with local
option liquor elections. Your first question is:
Does the tract of land presently in Justice
Precinct No. 2, which had been in Justice
Precinct No. 3 prior to redistricting, re-
tain its status as being dry for the sale of
beer?
110 S. W. 2d
549 (Tex. Sup. 1937); Goodie Goodie Sandwich,~ IInc. V. State, 138 S. W. 2d
906 (Tex. Civ. App. --Dallas 1940, writ dism. jdmt. co=.); Attorney
General Opinion H-97 (1973).
Your next three questions ask if voters living in any part of the
newly expanded Justice Precinct 2 are authorized to apply for a local
option election, sign the petition therefor, and vote in a local option
p. 2322
. .
The Honorable George E. McCrea page 2 (H-515)
election to legalize the sale of beer on the tract in question.
Our answer to each of the above questions is “yes. ” Justice
Precinct 2 is a new voting unit wholly contained, we understand, within
the City of San Angelo. At present, part of it is wet and part dry because
each part retains its previous local option status. Now, however, they
compose an indivisible voting unit for liquor local option purposes, and
any local option election will affect all parts alike. Article 16, section
20(b) of the Texas Constitution, reads in part:
The Legislature shall enact a law or laws
whereby the qualified voters of any county, justice’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,for
beverage purposes shall be prohibited or legalized
within the prescribed limits . . . . (Emphasis added)
In Griffin v. Tucker, 118 S. W. 635 (Tex. Sup. 1909), the Texas
Supreme Court in considering a different but similarly couched version
of article 16, section 20 of the Texas Constitution, said:
It implies that the determination of the question of
prohibition in a county or a subdivision once made
is not to be perpetually binding, and that provision
shall be made whereby the voters therein shall have
opportunity to vote upon it from time to time; but it
prescribes no rule from which the effect of an elecl
tion in one subdivision upon the right of the voters
in another is to be determined. The framing of the
law so that the right intended to be secured to the
voters in the localities may be exercised is expressly
committed to the Legislature, and we must look to the
statutes in order to determine as to the validity of
such elections as that in question. 118 S. W. at 638.
p. 2323
The Honorable George E. McCrea page 3 (H-515)
Article 666-32, of the Penal Auxiliary Laws, is the statutory
provision which now governs local option elections. It was amended
in 1973 inter alia “to determine and clarify which political subdivision
shall prevail when there are conflicting results from local option
elections in differing and/or over-lapping political subdivisions. ” Acts
1973, 63rd Leg., ch. 799, p. 508. This provision was added:
Any authorized voting unit, that is, any county,
justice precinct, or incorporated city or town which
has at any time heretofore exercised or may at any
time hereafter exercise the right of local option, shall
retain the status adopted, . . . until that status is
changed by a subsequent local option election in the
same authorized voting unit; provided, however, that . . .
in order to insure that each voter shall have the maximum
possible control over the status of the sale of alcoholic
beverages in the area of his residence, it is specifically
provided that the status which resulted from or is the
result of a duly called election for an incorporated city
or town shall prevail as against the status which resulted
from or is the result of a duly called election in a
justice precinct or county in which such incorporated city
or town, or any part thereof, is contained: and provided,
further, that the status which resulted from or is the
result of a duly called election for a justice precinct
shall prevail as against the status which resulted from
or is the result of a duly called election in an incorporated
city or town in which such justice precinct is wholly
contained or in a county in which such justice precinct
is located.
We believe this statute requires that the local option status of a
county, justice precinct, or incorporated town or city, once determined
by election, cannot be changed except by a subsequent election in&e same
voting unit which made the earlier determination, assuming the boundaries
of the county, precinct, town or city remain the same. If a county, precinct,
town or city ceases to exist after having determined its local opinion status
by election, or if a part of a county, precinct, town or city that has
p. 2324
The Honorable George E. McCrea page 4 (H-515)
previously determined its local option status by election ceases to be a
part thereof, or becomes a part of a different unit, the area retains the
local option status of its former identity, and cannot acquire a different
status until its occupants have an opportunity to vote on the question at
the same voting unit level at which its status was acquired or at a more
“local” voting unit level. Thus, a portion of a dry precinct which was
redistricted into another precinct could change its local option status by
an election in the new precinct or in a city or town contained therein.
There is dictum in Houchins which suggests a different conclusion,
but Houchins was decided under a different statutory framework and held
no more than that a dry~ city could not be made into a wet city by simply
dissolving the city and transferring the territory into another city that
was wet. Warren v. Moore, 337 S. W. 2d 395 (Tex. Civ. App. --Amarillo
1960, writ dismd.); Myers v. Martinez, 320 S. W. 2d 862 (Tex. Civ. App.
--San Antonio, 1959, writ ref., n. r. e., 326 S. W. 2d 171). It has also been
held that since the Constitution limits local option elections to counties,
justice precincts, and incorporated towns and cities, an election held in
only a portion of a justice precinct was void. Patton v. Texas Liquor
Control Board, 293 S. W. 2d 99 (Tex. Civ. App. --Austin 1956, writ ref.,
n.r.e.).
Thus, if a legalizing election is held on the question of “wet-for-
beer” and carries, the entire newly constituted precinct will be wet for
beer. Attorney General Opinion M-335 (1969); Cf. Attorney General
Opinion c-681 (1966). If it fails, the status of each part of the precinct
will remain as it is at present because a negative vote in a legalizing
election has no prohibitory effect. Attorney General Opinions H-130
(1973), H-59 (1973). Note, however, that article 666-40b requires newly
created political subdivisions to be in existence at least 18 months before
a local option election can be held. Attorney General Opinion M-991 (1971).
Your last question asks whether a local option election may be held
in conjunction with and at the same time as a general election, and, if SO,
whether separate election officials, ballot boxes, lists and returns must
be used.
p. 2325
The Honorable George E. McCrea page 5 (H-515)
In Attorney General Opinion O-2853 (1940), written by the Honorable
Zollie C. Steakley, now Associate Justice of the Supreme Court of Texas,
it was concluded that the commissioners court of a county might order a
local option liquor election to be held on general election day, at the same
time, at the same polling places and under the supervision of the same
election officers. But it was considered indispensable to the integrity
of the ballot that different boxes be used for the two elections to receive
those ballots to be locked and sealed. On the matter of “lists” the opinion
said it would not appear necessary that separate voter lists be furnished,
but that the tally and poll lists of the votes cast in each election, and the
returns of each, would necessarily have to be separate and distinct.
Attorney General Opinion C-162 (1963) could be interpreted as
suggesting a different result in some respects; however, the statute on
which that opinion was based has been repealed, and thus we see no
reason to question the conclusion of Attorney General Opinion O-2853.
SUMMARY
When a portion of a justice precinct is
redistricted it does not lose its local option
status. Its status may be changed in an elec-
tion held in the new precinct or in a city or
town contained therein.
ery truly yours,
Attorney General of Texas
LL, First Assistant
C. ROBERT%EA TH, Chairman
Opinion Committee
LS
p. 2326