Untitled Texas Attorney General Opinion ( 1973 )

THE AVTORNEY GENERAL
OF’ TEXAS
October 16. 1973
Mr. Jerry L. Calhoon Opinion No. H- 130
County Attorney
Anderson County Re: Whether area annexed
Palestine, Texas 75801 subsequent to local option
election becomes “wet”
upon the holding of another
Dear Mr. Calhoon: local option election
Your request for our opinion involves the local option laws of the
State of Texas. According to the facts which you have given us, a local
option election was held on April 7, 1962, in the City of Palestine on a
petition to legalize the sale of alcohol for off-premises consumption.
The city voted “wet” in that election.
In Texas, the ballot proposition in a local option liquor election is
always the same whether the election is to legalize or to prohibit liquor
sales. Article 666-40, V. T. P. C. The effect of the vote is determined
by the reason for it -- that is, by whether it is an election to legalize the
sale of liquor or an election to prohibit it.
Subsequently, on August 13. 1962, a “dry” area was annexed by the
City of Palestine. On November 16, 1966, a petition for a local option
election to prohibit the sale of alcoholic beverages for off-premises con-
sumption was filed in exactly the same language as that involved in the
1962 election. The election was held January 7. 1967. and the majority
of the voters, including those of the annexed area, voted “for” the legal
sale of all alcoholic beverages for off-premises consumption only.
Your question is whether, once annexed, the dry area in question
became “wet” by the local option election of January 7, 1967.
It is the law of this State that annexation does not change the local
option status of the area annexed. A dry area annexed by a wet city re-
mains dry. Houchins v. Plainos, 110 S.W.2d 549 (Tex. 1937).
p. 626
The Honorable Jerry L. Calhoon, page 2 (H-130) ’
The situation you present is similar to one involved in Attorney
General Opinion M-335 (1969), with one important distinction. There,
the vote after annexation was one for the legalization of the sale of alco-
holic beverages. Here, it was one for the prohibition o’f such sale. This
is a distinction which cannot be ignored. It is required that those petition-
ing for the election indicate whether it is to be one to legalize or to pro-
hibit the sale of alcoholic beverages. See Article 666-32 and Article 666-
40, Vernon’s Texas Penal Code, setting out the various propositions which
may be submitted. An “against” vote in a legalizing election does not have
a prohibitory effect and similarly a “for” vote in a prohibitory election has
no legalizing effect. Attorney General Opinions H-59 (1973), WW-1104
(19611.
Since, as you state, the election in January of 1967 was one to pro-
hibit the sale of alcoholic beverages for off-premises consumption, and
the voters voted -for such consumption, the election was without any effect
and could not affect the status of any area. Consequently, the annexed area
did not become wet by reason of the election on January 7. 1967.
SUMMARY
Under the local option laws, the status of an area
from dry to wet can only be accomplished by a “for”
vote on a legalizing proposition and, similarly, trans-
formation of a wet area to a dry area can only be accom-
plished by an “against” vote on a prohibitory proposition.
A city prohibitory election which does not result in a vote
unfavorable to the sale of alcoholic beverages has no effect
at all upon the status of the city or any part of it.
Very truly yours,
A
L. HILL
Attorney General of Texas
p. 627
.
,
The Honorable Jerry L. Calhoon, page 3 (H-130)
APP$O’+D:
Opinion Committee
p. 620