## T~~EAITONNEY~GENERAI. OF TEXAS

PRICE DANIEL ATTORNEY

GRNERAL ‘iUllTlN 11, - June 22, 1948

Hon. Clarence D* Cain Opinion No, V-614. Countykttorney Liberty County Re: Length of time PollswLiberty, Texas ing final judgment in a local option contest in whioh sale .ofalcoholic beverage must oease,

Dear Sir:

Your requestfor an opinion datedMay 27, 1948, stated that on January 3, 1948, ,alocal option eleotion
was held in Liberty County; that the Commissioners'Court declared the resultof the election to be against prohibiting the sale of all alcoholicbeverages; that an election contestwas filed, and the District Court of Liberty County held that the election resulted in prohibitingthe sale of all alcoholicbeverages; this decisionwas affirmed by the Court of Civil Appeals and that a motion for rehearing is now pendingbefore said Court:

Your q,uestion

is:

"0 " 0whether or not the sale of alcoholic beveragesmust cease from thedate upon which the jud~gment(in the election contest) becomes final sforprohibiting the sale of alcoholicbeverages' or do the persons holding permits to sell alcoholicbeverages in this countyhave thirty days from the date when such judgmentbecomes final to continue the sale of same and arrange for the disposition of their stock on hand."

We are of the opinion thatwhen the judgment in the electfon contestbecomes final and in the event such final judgment is for prohibiting the sale of all alcoholic beverages, local option is in effect immediatelyand the holders of permits to sell alcoholic beverages camot sell such beveragesafter the date of such final judgment.

Texas JurisprudenceSupplement, 1941,Vole 2, at page 1071, in discussing contestsef local option elections says:

.. .

lion 0 ClarenceD. Cain, Page 2, V-614,

"Local option becomes effective upen the date of the rendition of a jiidament determin--- i g th t the vote was 1 favor of prohibition'~* (&derzcoring ours throighout)

(26) not, In Brooks v- State, 138 T&K, Grin. 526, 137 S-WI. 768, therewas involved the question of whether or in a contest of a local option eIectien, there nust be publication of the result of the judgment. The Court said:

"0 D .therewas no statute requiring notice of the judgment of the District Court to be published,and noticewas not a prerequisite inmaking effeotivethe judgment of said Court. The judgment itselfwas notioe to the world, as it was very properly held to be in Bicke'rs v. Lacy, Tex. Civ. App., 134 S. W. 763. We copy Prom the opinion in said case the following: OThe case of Chenowith v, State, 50 Tex. Grim, Rep, 238, 96 S. W, 19, and others.citedby appellant,holding that a local option prohibition law does not go into effect until the county judge has caused publicationof the result of the election as prescribedby the articlebefore cited,
are cases in which the commissionersPcourt had declared the resultof the election to be in favor of prohibition,and not cases in which that resultwas declaredby a judgmentmf a district court in a contest proceedingbrought for that purpose, An electioncontest is a proceed--" ing in rem, and a judgment in such proceeding ‘fsbin n 3 ~-
Under Brooks v0 State, supra, no notice or publication of a judgment in a local option contest is necessary. Had there been no contest, then Art, 606-37 and Art, 666-38,V, P, C., pertaining to publishing of notice by the CommissionersPCourt and providing for a 30-day period inwhich liquor could be sold after the Commissioners? Court had declared the results of a local option eleetion to be against the sale of liquor,would apply- HOWever,we find no authorityholding that once a contest has been filed and tried and judgment entered in favor of prohibition, alcoholicbeveragesmay continue to be sold for
an additional period of 30 days after the date of the final judgment.Hon, Clarence D. Cain, Page 3, V-614.

In fact the Brooks v. State case holds that
once an election contest is filed, the statuteswhich set out the duties of the CommissionersPCourt in a local option election no longer apply,

The quotation above frcm Texas Jurisprudence Supplement, 1941, specifically states that when an electioncontest is filed, local option bewmes effective upon’the date of final judgment.

Bickers v. Lacy, Tex. Civ,App., 134 S. !V,763, in discussing the judgment in an election contest on local option,said:

“The judgmentwas effectivewithout any publication,and not havingb)eenappealed from or set aside, but being in full force and ~effect,the local option prohibition law against the sale of i ntoxicating liquors thereby became operative in Leon County, * 0n
Since the above authoritieshold that in aa election contest there is no necessity of notice of the final judgment and that local option becomes effe&tive upon the rendition of such judgment, It follows that the sale of all alcoholicbeveragesniustcease ‘uponthe date of final judgmentiArt0 666-37,V. P, Co, which provides that the CommissionerssCourtmust make an order declaring the results of the election and prohibiting the sale of alcoholicbeverages after 30 days Prom such order does not apply,

It is painted out that Rule 442 of the Texas Rules of Civil Procedure provides that the Clerk of the Court of Civil Appeals shall issue themandate after the expiration of thirty days after the motion for rehearing is overruledv The District Clerkwill not issue execution on the judgmentuntil the mandate has been received from the Court of CivilAppeals, Rule 436. These rules have the effect of delaying enforcement of theDistrict Court judgmentuntil thirty days after the judgment of the Court of Civil Appeals has become final,

When the judgment in a local option election contest suit, declaring the result to be for prohfbiting the sale of allHon. ClarenceD. Cain, Page 4, V-614.

alcoholic beverages,becomes final, the local option prehibition law becomes speratire immediatelyand ne,alcoholicbever-. ages can be lawfully sold after the date of such judgment.

Yours very truly,

ATl'OFNPXGE%!3RALOFTEXAS

Clinton Foshee Assistant

APPROVED:

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