Untitled Texas Attorney General Opinion ( 1942 )

.. -
Honorable James Vi.Stravm
county attorney
'NillacyCounty
Raymondville, Texas
%ar Sir; Opinion No. O-4466
Re: Whet is the legal status of
a politioal subdivision in a
county when said political
subdivision is dry as to four
per cent beer and the county
is wet as to malt and vinous
beverages that do not contain
alcohol in excess of fourteen
per cent by volume?
Your letter requesting the opinion of this department on
the above stated question reads as followsr
"I would like an opinion on the following question:
'Illhatisthe legal status of a political subdivision in
a county when said political subdivision 1s dry to four
(4%) per cent beer, and the county is wet as to fourteen
(14%) per cent beer?'
"An unusual situation has again arisen in this
county and ,Iwould like to give you a little of the
history so you may answer this question. In 1937 all
alcoholic beverages were prohibited in the county; in
1936 four (4%) per cent beer was legalized within the
county; later an election to legalize all alcoholic
beverages failed to carry; in 1939 four (4%)per cent
beer was legalized in the aounty; in 1941 four (4%) vir
cent beer was prohibjted in the county: and in 1942 the
sale of fourteen (14%) per cent beer and wine was
legalized. tiring the time that the county was wet as
to the sale of (4%) per sent beer Precinct 2 and the
City of Lyford, by local option elections, voted to
prohibit the sale of four (4%) per cent beer.
"The situation is in short that we have a precinct
and a city in the county which are dry as to the sale
of four (4%) per oent beer, and the county is wet as
to fourteen (1496)per cent beer and wine. There have
Honorable James W. Strawn, page 2 O-4466
been no city or precinct elections to prohibit the
sale of fourteen (14%) per cent beer and nine.
"The law is well established in the casss show-
ing that a county wide election oan in no instanoe
have the effsot of legalising intoxioante in dry
precincts or cities. These cams ars set out in
numerous opinions handed down by you and for that
reason ars not pointed out. However, in all of those
oases there has never been a situation, in so far as I
am able to determine, whore the question of various
degrees of wetness wsre involved--it was just a question
of whether the subdivision was net or dry.
"You will notice in this instance that the
preoinot and oity in question are not dry as to
fourteen (14%) per cent beer and wine sinae that
issue and the issue on prohibiting all alcoholio
beverages have never been voted on by them as units.
It would therefore seem that the only question in-
volved is whether or not said subdivisions may sell
beer or four (4%) per sent and under, because it
seems alear that they oan sell beer and wine contain-
ing alaohol between four (4%) and fourteen (14%) per
cent. After considering the question very saricurly
I am inolined to the view that the status of said
subdivisions ae to four (4%) per cent beer has no
effect at this time because the entire county is
wet a8 to fcurteen (14%) per cent beverages. At
any time in the future when the county was wet ae
to only four (4) per cent beer, then the status would
be material and they would be dry as to the four (4%)
per cent beer. But, under the present oondition, the
status on four (4%) per cent bser is one whioh is not
to be oonsidered at this time.
"The argument oan be advanced that these sub-
divisions are dry ae to four (4%) per cent beer
and that no vote by the oounty, a6 a whole, ban in
any way have the effect of legaliring the eale of
light beers in said subdivision. This argument i8
sound and must be aooe ted ie the question 81)to the
statue on the four (4%P per sent issue Is considered
material.
"I am inclined to think that said subdivieion6
are wst for the sale of beer and wine up to fourteen
(14%) per oent and that they will remain so until suoh
time as they vote for prohibiting the sale of beer
and wine not to exoeed fourteen (14%) per oout."
Honorable James W. Strawn. page 3 O-4466
Ry virtue of the Texas Liquor Control Act (Article 868-32,
Vernon's Annotated Penal Code) any county in the State, justice precinct,
or any incorporated city or town, in compliance with said Act, may hold
a local option election to determine whether or not the sale of liquors
shall be prohibited or legalited in such county, justice precinct, or
incorporated city or town.
For the purposes of this.opinion, where you have referred tc
"Precinct 2" and the city of Lyford, we assume that you refer to a
justice precinct and an incorporated tomn.
Prcm the facts stated in your letter, as quoted above, it
is apparent that in 1941 by local option election the sale of beer not
containing alcohol in excess of four per oentum by weight was prohibited.
Therefore, it naturally followed that all alcoholic beverages mentioned
in the Texas Liquor Control Act could not be legally sold. However, in
1939, the county as a whole, by local option legalised the sale of beer
which did not contain alcohol in excess of four per centum by weight.
During the time the sale of beer not containing alcohol in excess of
four per centum by weight was legalized by a looal option eleotion, the
above mentioned justice precinct and the City of Lyford prohibited the
sale of such boor by a local option election and under the facts stated,
said precinct or city, as such, has not changed their status,
Vnder the facts stated, in 1942, the~oounty as a'whols legal-
ized the sale of malt and vinous beverages not containing aioohol in
excess of fourteen per centum by volume by local option election. Al-
though the ccuntyas awhole by virtue of said election was "met" with
reference to the sale of malt and vinous beverages not containing aloahol
in oxcoss of fourteen per aentum by volume the status of the precinct
and city above mentioned remained the same as established by the last
local option election held in such precinct and city. By virtue of the
last local option election hold in said precinct and oity, each was
"dry" as to all alcoholic beverages mentioned in the Texas Liquor Control
Act.
We think that it is well established that the status of the
above mentioned precinct and city mill remain dry as established by
the last looal option election in each, until the status of each is
changed by a local option election. The fact that the county as a
whole has legalieed the sale of malt and vinous beverages not contain-
ing alcohol in excess of fourteen per centum by volume does not alter
cr change the status of the precinct and city heretofore mentioned.
We think the conclusion reaohed herein is supported by the
following cases: Talley v. Binsan, 96 S. W. (Zd) 94; Rockholt v.
State, 126 S. W. (2d) 4881 Coker v. Kmoicik, 87 Si W. (Zd) 1076, and
Iicuohinsv. Plainos, 110 S. W. (2d) 549. Jackson V. State, 118 S. 'N.
(2d) 313.
Eonorable James W. Strawn, page 4 O-4466
Trustbe that the foregoing fully answem your inq,uiry,WC
are
Yours very truly
ATTORNEY G%;i%RAI.
OF TEXAS
Py s/Ardell Williams
Ardell.Williams
Asaj.stant
Approved Opinior:Committee By-~MB Chairman