Untitled Texas Attorney General Opinion ( 1975 )

The Honorable Royce C. Johnston Opinion No. H- 718
County Attorney
Kenedy County Re: Local option status of a
P. 0, Box 1226 county which has never con-
Kingstille, Texas 78363 ducted a local option election.
Dear Mr. Johnston:
You have requested our opinion concerning the wet-dry status of a
county which has never held a local option election.
Article 16. section 20 of the Texas Constitution empowers the Legislature
to provide for elections whereby the voters of various political subdivisions
m=Y “determine . . . whether the sale of intoxicating liquors for beverage
purposes shall be prohibited or legalized. . , . ” Article 666-23, Penal
Axdiary Laws provides that all areas which are not “dry” pursuant to a
local option election shall be “wet!‘. Thus neither the Constitution nor the
statutory law would prohibit the sale of intoxicating liquor unless an area
is “dry” pursuant to a local option election. It is well established that “no
act or omission is a crime unless made so by the written law of the state.”
16 Tex. Jur. 2d, Criminal Laws 5 1, and authorities cited therein. Accordingly,
in our opinion the sale of intoxicating beverages is illegal only in an area
which is “dry”pursuant to a local option election. Where there has been no
such election the sale of intoxicating beverages is not illegal and the area
involved is therefore “wet”.
We are supported in our view by dicta from two Texas cases. In Sanders
v. State, 157 S.W.2d 910 (Tex. Grim. App. 1941), the court stated:
. . . under the terms of Art, 666-23, Vernon’s
Annotated Penal Code, all area of the state is
‘wet, ’ except that which has been determined to
be ‘dry. ’ Unless the proof shows that the area
is ‘dry, ’ it is by law ‘wet. ’
p. 3079
The Honorable Royce C. Johnston, page 2
In Stell v. State, 496 S.W.2d 623 (Tex. Grim. App. 19731, the court stated:
Under the State Constitution. . . (Article XVI 5 20,
as amended 1933, 1935). all of the State is ‘wet’
except those parts which have been declared ‘dry’
by local option elections.
SUMMARY
Where a political subdivision has never held a
local option election, the area it encompasses is
“wet”.
Very truly yours,
/ / Attorney General of Texas
APPROVED: u
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 3080