Untitled Texas Attorney General Opinion ( 1942 )

HonorableBert Ford, page 3 (o-4440)
considerationandthat.thereforeit is sufficientto confineour-
selveshere to a short oondensation
of this case.
The faots in substancewere these% John Plain08end Save
Plainoswere 6ngagedin the businessof sellingvinous and malt
beveragesconfiaining alcoholin excess of one-halfof one perosntby
volume in a part of the City of Houstonthat on September15, 1912 was
a separatemunicipalityknown as the City of Houston Heights. On said
last named date at a valid local optionsleotionthe qualifiedvoters
of the City of HoustonHeightsadoptedlocal option and prohibited
the sale of liquorwithin said territory. On February20, 1918 the
peopleof HoustonHeightsvoted to dissolvesaidmunicipalityand
since that time the area comprisingHoustonHeightshas been an intb-
gral part of the City of Hou8ton. Since the adoptionof local option
on September15, 1912, there had never been held a local option elec-
tion in and for the territorywhich xas formerlythe City of Houston
Heights,legalizingthe sale of alaoholiobeveragesand thereyhbdnbt
been a local option electioninand for the City of &u&on. The area
which was formerlythe City of HoustonHeightsis not oo-extensive with
a justice'sprebinat,a Commissioner*8 precinct,a city, town or county.
Under these hots it was agreedthat the sole questionof law
involvedin the cause nasr
*Is that territorywhiohras formerlythe City of Houston
Heights,and now being a part of the City of Houston,Harris
County,Texas, a,mt or a dry area?"
The ease in nhioh the above faots appearedbegan when, upon the
affidavitof otis0. H. Houohins,the HonorableRlllismMcGraw, then the
A%ttornayGeneral of Texas, filed suit in the DistrictCou& of Harris
Couiity,Texas againstJohn and Save Plainosto enjointhcPnfran selling
or distributingvinous or malt beveragescontainingalooholin exoess of
one-halfof one per sent in the territorycomprisedwithin the area of
what w$s onoe the City of Hous,tinHeights,in Harris County,Texas. The
DistrictCourt grantedthe injunction&s prayedfor by the Attomsy General;
Plainosbeing unsuuooassful in an attemptto dissolvethe temporaryinjuno-
tion in the DistrictCourt, appealedto the GalvestonCounty of Civil
Appeals,which reversedthe judgmentof the DistrictCourt and dissolved
the temporaryinjunotion. (106 S.W. (2) 745). The SupremeCourt of Texas
granteda writ of arror,and on kvember 24, 1937 handed down its opinion,
writtenby JusticeCrits,reversingthe judementof the Court of Civil
Appealsand affirmingthe judgmentof ths trial court. The rules laid
dew inthis opinionby the SupremeCourt are substantiallyto the follow-
ing sffeat;the languageis mostly from the syllabi,but for the sake of
brevity,it is not quoted directly.
EonorpblsBert Ford, page 4 (0-4~)
1. Hhere City of h&on Heightsvotedto beoonze a dry
area in 1912, end in 1918 was dissolvedand annexedto mut city of
Em&on, its area remaineddry in 1919 when prohibitionam&dment
was adopted,and was saved as a dry ama, nith right to bsoane wet
by l&al optionelection,by 1933 and 1935 amendments(citingTexas
Constitution,Arts. 666-l et seq. and 667-l et seq. of Vernon's
AnnotatedPenal Code).
2. The dry city of HoustonHeightsdid not vote to Broome
e wet area by voting to ix0oms.apert of tha wet city of Houston
(ottlngConstitution, Art. 18, Sec. 20, es amendedin 1891, 1919 and
1933).
3. Where power is given by Constitution,and means by which,
or manner in which it is to be exercisedis pmsoribed, suoh Iwane or
manner is exclusive.
4. Under local option amendmentof 1933, the area of any county,
justice'spmainct, town, or city that was dry when entire state became dry
under prohibition,remaineddry with the privilegeof beoamingwet, as
respectslight liquors,by so voting et an electionheld in and for the
exact ama that had originallyvoted dry. (Citing.1933amendmentto Art.
16, Sac. 20, Constitutionof Texas.)
5. Though towns and oitiesem not ordinarilyolassedes pol-
$ticalsubdivisionsof aounties,the amas of justi- preoincts,towns,
and citiesem includedin the pip-ase"p9y politicaleu%dIvision``thsreof"
in local option amendment. (Citingthe 1933 amendmeiittc Art. 16, Sec.
26 of the Constitution).hd, courtswill not follow the letter~ofthe
&,atuj&s``hereto do so would violate its purposeand lead to a oonolu-
sion contraryto evidentgoverningintent.
6. 'Under 1935 amendmentof intoxio&ting liquor law, the area
of any oounty,justioe'spmoinot, city or tom that wanadry when amend-
ment went into affect remainsdry with right to becamewet by so voting
at electionunder presentlocal option statutesheld in 8~ area that
origtiellyvoted dry (citing1936 amendmentto Art. 18, Sec. 20 of the
Constitution and Vernon'sTexas Penal Code, 1938,$rts. 666-let seq, and
667-l et seq.) end, where oity has ceasedto exist as a municipaloorpor-
ation, it still exists for purposeof holdinglocal optionelectionto
make ama thereofwet either as respectsall intoxicatingliquorsor only
as respectsmine and beer. (CitingVernon'sTexas Penal Code 1936, Arts.
666-l et seq. and 967-l et seq. and the X936 amendmentof Art. 16, Sec. 20
of the Constitutiona). -~,
The court citesmany authoritiesin additionto those herain-
above oited supportingthe prinoiplelaid down in arch of the above para-
graphs. &id citationsmay be found upon refemncs to this opiniones
printedin the reports.
_ .-c
HonorableBert Ford, page 5 (o-4440)
You apI)advisedthat in accordancewith the Constitution
and the Statutesof this Stats as expoundedbythe SupremeCourt in
the ease above oited and digestedand the authoritiesthorn oited,
it is the opinionof this department'that the area 16catedwithin
the former City 00 ldrgnoliaPark, a part nor of the City of fbuston,
is a dry area, and 'tillso remain unlessand until the qualPfied
voters of suoh arm et e local option electionheld for suoh purpose
vote in favor of the sale of alooholiobeverageswithin one of the
clessifioations permittedby law.
'Retrustthat this satisfaotorily
auswersyour inquiry.
Yery truly yours
ATTORWEYGEXERU OF TEXAS
_
By'
s/Rob% F. Cherry
RobertF. c2ls-y
Assistanf
/DPFiOVEDAPR8, 1942
s/Grover Sellers
FIRSTASSISWEC
ATTQRWSYGENERAL
Apprtid: OpinitiIi
Co&ittee
By:. ?m f2w.-
.._.