Untitled Texas Attorney General Opinion ( 1971 )

LL%TOEWEY 'GENERAL
P%-JEXAS
AUSTXN. TEXAS 7S711
CRAWFORD c. RaaRTXN
*-rrOHxYRY GENERAL
August 13, 1971
The Honorable Tom Hanna
Criminal District Attorney
Jefferson County, Texas
Beaumont, Texas 77701
Opinion No. M-931
Re: Whether a'Loca1 Option Election
to legalize the sale of "mixed
alcoholio beverages" may be held
in any of the incorporated cities
of Precinct No. 7, Jefferson
County, Texas, within one year
after the local option election
of May 10, 1971, authorized by
Senate Bill 346, 62nd Leg., R.S.
1971, without violating Art. 666-
32 or 666-32 l/2, Vernon's Penal
Code.
Dear Mr. Hanna :
YOU have requested an opinion on the following question which we
rephrase as follows:
Whether a local option election to legalize the sale of
"mixed alcoholic beverages" may be held in any of the incor-
porated cities of Precinct No. 7, Jefferson County, Texas,
within one year after the local option election of May 18,
1971, authorized by Senate Bill 346, 62nd Leg., R.S., 1971,
without violating Articles 666-32 or 666-32 l/2, Vernon's
PenslCode.
Your recent letter to us indicates that pursuant tclSec. 27 of
Senate BiW346, 62nd Legislature, Regular Session, 1971 , and in
comoliance with the.April 21 ti23. 1971, directives from the Secretary
1
Sec. 27 of S.B. 346, is a new provision to the
Texas Liquor Control Act, codified by Vernon's
as Art. 666-40 note, Vernon's Penal Code.
-4540-
Honorable Tom llama, page 2 (M-931)
of State, State of Texas, that "mixed alcoholic beverage elections",
were held in all justice precincts of Jefferson County on May 18, 1971,
and that the elections were canvassed as instructed by the Secretary
of State, such that the results would reflect the votes in each justice
precinct.
The returns of these elections "for and against the sale of mixed
alcoholic beverages" as filed by the County Clerk of Jefferson County,
Texas, with the Secretary of State reflect that all justice precincts
approved of mixed alcoholic beverages with the exception of Justice
Precinct No. 7, previously wet for alcoholic beverages, which defeated
the issue by six (6) votes. No contest has been filed to any of these
elections; therefore, under the provisions of Article 666-40-A, Vernon's
Penal Code, it is conclusively presumed that the elections as held and
the results thereof as declared are in all respects valid and binding.
The liquor election history for Jefferson County provided by your
office reveals that no incorporated city within Precinct No. 7 has
ever held a local option election and as a result has never chosen to
establish a separate liquor status from its precinct. Therefore, the
only political subdivision wet for alcoholic beverages on May 18, 1971,
which was authorized to vote upon the mixed beverage issue was the
precinct itself. Consequently, no local option election to date has
been held solely to determine the issue of "mixed alcoholic beverages"
in any of the incorporated cities within Precinct No. 7.
The question of which political subdivisions can hold a local
option election is established by Article XVI, Section 20, Constitution
of Texas, and as interpreted in the case of M ers v. Martinez, 320 S.W.
2d 862, 866 (Tex. Civ. App., error ref. n.r.e.
%O Tex. 102, 326 S.W.
171, 19591, wherein the Court of Civil Appeals held:
with the provisions of Sec. 40, Art. 666, Vernon's Ann.
Penal Code..." (Emphasis added.) (320 S.W. 2d 862, 866).
2
Note 1, supra.
-4541-
Honorable Tom Hanna, page 3 (M-931)
One of the limitations on any political subdivision holding a
local option election is that an election on the same issue must
not be held mare often than once a year in the same political
subdivision. Art. 666-32, Vernon's Penal Code.
Another limitation is found in Article 666-32 l/2, Vernon's
Penal Code, which relates to~payment for the expense of holding an
election and provides a penalty for issuance of ,a petition for au
election under certain circumstances.
In view of the fact that no local option election to legalize
"mixed alcoholic beverages* has ever been held in any of the incor-
porated cities of Precinct No. 7, Jefferson County, Texas, and since
it appears that neither of the limitations as provided in Articles
666-32 or 666-32 l/2 Vernon's Penal Code, are applicable, it is
the opinion of this office that by complying with the provisions of
Article 666-32, et seq., a local option election legalizing the sale
of "mixed alcoholic beverages" may be held in any of the incorporated
cities of Precinct No. 7, Jefferson County, Tgxas, within one year
after the local option election May 18, ,197l.
SUMMARY
A local option election legalizing the sale of mixed
alcoholic beverages may be held in any of the incor-
porated cities of Precinct No. 7, Jefferson County,
Texas, within one year after the local option elec-
tion of May 18, 1971, authorized by Section 27 of
Senate Bill 346, 62nd Regular Session,
1971, without 666-32 or 666-32 l/2
Vernon's Penal Code.
?%i!E5-
.
General of Texas
3 Note 1, supra.
-4542-
Honorable Tom Hanna, page 4 (M-931)
Prepared by Guy C. Fisher
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Lonqy Zwiener
Howard Fender
Harold Kennedy
Bob Lattimore
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-4543-