T~~EAITONNEY~GENERAI. 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GRNERAL 

‘iUllTlN 11, - 

June 22, 1948 

Hon. Clarence D* Cain Opinion No, V-614. 

County kttorney 

Liberty County Re: Length of time PollswLiberty, Texas ing final judgment in a 

local option contest in 

whioh sale .of alcoholic 

beverage must oease, 

Dear Sir: 

Your request for an opinion dated May 27, 1948, 

stated that on January 3, 1948, ,a local option eleotion 

was held in Liberty County; that the Commissioners' Court 

declared the result of the election to be against prohibiting the sale of all alcoholic beverages; that an election contest was filed, and the District Court of Liberty 

County held that the election resulted in prohibiting the 

sale of all alcoholic beverages; this decision was affirmed by the Court of Civil Appeals and that a motion for rehearing is now pending before said Court: 

Your q,uestion is: 

"0 " 0 whether or not the sale of alcoholic beverages must cease from the date upon 

which the jud~gment (in the election contest) 

becomes final sfor prohibiting the sale of 

alcoholic beverages' or do the persons holding 

permits to sell alcoholic beverages in this 

county have thirty days from the date when 

such judgment becomes final to continue the 

sale of same and arrange for the disposition 

of their stock on hand." 

We are of the opinion that when the judgment in 

the electfon contest becomes final and in the event such 

final judgment is for prohibiting the sale of all alcoholic 

beverages, local option is in effect immediately and the 

holders of permits to sell alcoholic beverages camot sell 

such beverages after the date of such final judgment. 

Texas Jurisprudence Supplement, 1941, Vole 2, at 

page 1071, in discussing contests ef local option elections 

says: 

. 
. . 

lion 0 Clarence D. 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, there was 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 .there was no statute requiring 

notice of the judgment of the District Court 

to be published, and notice was not a prerequisite in making effeotive the judgment 

of said Court. The judgment itself was 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.cited by appellant,holding that a local option prohibition law does 

not go into effect until the county judge has 

caused publication of the result of the election as prescribed by the article before cited, 

are cases in which the commissionersP court 

had declared the result of the election to be 

in favor of prohibition, and not cases in which 

that result was declared by a judgment mf a district court in a contest proceeding brought for 

that purpose, An electioncontest is a proceed--" 

ing in rem, and a judgment in such proceeding 

‘fs 3 bin n ~- 

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 CommissionersP Court and providing for a 30-day 

period in which 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 authority holding that once a contest has 

been filed and tried and judgment entered in favor of prohibition, alcoholic beverages may 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 statutes which 

set out the duties of the CommissionersP Court in a 

local option election no longer apply, 

The quotation above frcm Texas Jurisprudence 

Supplement, 1941, specifically states that when an election contest 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 judgment was effective without 

any publication, and not having b)een appealed 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 authorities hold 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 alcoholic beverages niust cease ‘upon the date 

of final judgmenti Art0 666-37, V. P, Co, which provides 

that the Commissionerss Court must make an order declaring the results of the election and prohibiting the sale 

of alcoholic beverages 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 the mandate after the 

expiration of thirty days after the motion for rehearing 

is overruled v The District Clerk will not issue execution on the judgment until the mandate has been received 

from the Court of Civil Appeals, Rule 436. These rules 

have the effect of delaying enforcement of the District 

Court judgment until 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 all 
Hon. Clarence D. Cain, Page 4, V-614. 

alcoholic beverages, becomes final, the 

local option prehibition law becomes speratire immediately and ne, alcoholic bever-. 

ages can be lawfully sold after the date 

of such judgment. 

Yours very truly, 

ATl'OFNPXGE%!3RALOF TEXAS 

Clinton Foshee 

Assistant 

APPROVED: 

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