THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Ralph M. Hall 

The Senate of Texas 

Senate Chambers 

Capitol Station 

Austin, Texas 

Dear Senator Hall: 

Opinion No. M-865 

Re: Constitutionality of 

S.B. 925, 62nd Legislature, Regular Session, 

1971, relating to the 

status of an area annexed 

to a wet justice precinct 

in certain counties. 

You have submitted for our consideration the constitutionality of Senate Bill 925, 62nd Legislature, Regular 

Session 1971, same being a proposed amendment to Section 

23,,Article I of the Texas Liquor Control Act, codified as 

Article 666-23, Vernon's Penal Code, the pertinent portion of which as originally introduced, reads as follows: 

"Provided, however, that whenever the Commissioners' 

Court of any county in the state of over 350,000 

population according to the last federal census 

shall annex areas to any justice precinct designated as a 'wet area', the annexed portion shall 

become wet if its prior status was that of a 

'dry area', and such order of the Commissioners' 

Court attaching such portion of a dry justice 

precinct to a wet justice precinct will not 

serve to prohibit the sale of alcoholic beverages 

in the attached portion." 

Article 16, Section 20r Subsection (b) and (c) of the 

Texas Constitution adopted in 1935 specifically repealed 

State wide prohibition and granted authority to the Legislature to return the State to a system of local option regulation, in the following language: 

"(b) The Legislature shall enact a law or laws 

whereby the qualified voters of any county, justice's 

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Honorable Ralph M. Hall, Page 2 (M-865) 

precinct or incorporated town or city, may, by 

a majority vote of those voting, determine from 

time to time whether the sale of intoxicating 

liquors for beverage purposes shall be prohibited 

or legalized within the prescribed limits; and 

such laws shall contain provisions for voting 

on the sale of intoxicating liquors of various 

types and various alcoholic content. 

"'(c) In all counties, justice's precincts or 

incorporated towns or cities wherein the sale 

of intoxicating liquors had been prohibited by 

local option elections held under the laws of 

the State of Texas and in force at the time 

of the taking effect of Section 20, Article 

XVI of the Constitution of Texas, it shall continue to be unlawful to manufacture, sell, barter 

or exchange in any such county, justice's precinct or incorporated town or city, any spirituous , vinous or malt liquors or medicated bitters 

capable of producing intoxication or any other 

intoxicants whatsoever, for beverage purposes, 

unless and until a majority of the qualified 

voters in such county or political subdivision 

thereof voting in an election held for such 

purpose shall determine such to be lawful; 

provided that this subsection shall not prohibit' ~~"" "'~ 

the sale of alcoholic beverages containing not 

more than 3.2 per cent alcohol by weight in cities,, 

counties or political subdivisions thereof in which 

the qualified voters have voted to legalize such 

sale under the provisions of Chapter 116, Acts 

of the Regular Session of the 43rd Legislature." 

Pursuant to this constitutional mandate the Legislature 

passed the Texas Liquor Control Act regulating the sale of 

intoxicating beverages and providing for the holding of local 

dption elections. These provisions pertaining to elections 

are codified as Article 666-32, et. seq., Vernon's Penal Code. 

The term "local option" is well understood by the Legislature and the voters of Texas. 

a clear, 

A local option election is 

valid declaration of the will of the voters, which 

under the Constitution and statutes they have a right to authoritatively establish. The Supreme Court in Houchins v. 

Plainos, 130 Tex. 413, 110 S.W.2d 549 (1937), ruled that 

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Honorable Ralph M. Hall, Page 3 (M-865) 

the Constitution provides the exclusive means by which the 

issue of prohibition or legalization of alcoholic beverages 

could be decided. That Court in the earlier case, State v. 

Texas Brewing Company, 106 Tex, 121, 157 S.W. 1166 (1913) 

at page 125 reached a similar conclusion when it stated: 

"All powers of government reside in the people, 

and the officials of the different departments 

exercise delegated authority; however, the 

Legislature can exercise all legislative power 

not prohibited by the Constitution. But the 

section of the Constitution quoted provides 

a method (a referendum) by which the voters 

of a given territory may exercise the sovereign 

power of legislating upon this subject, which 

places the law adopted by them above legislative 

authority, as if it had been embraced in the 

Constitution, and we must so consider the local 

option law adopted by the voters of Clay County, 

for that, like the Constitution, is the exercise 

of primary sovereignty; therefore, what is prohibited by the local option law to be done in 

Clay County, as to sale of intoxicating liquors, 

cannot be authorized by the Legislature to be 

done there." (at p. 125). 

Therefore, as held in Medford v, State, 74 S.W. 768, 

45 Tex.Crim, 80 (19031 d 

"Where local option has been legally put into 

operation within a specified territory, it 

must remain in force in that territory; that 

no power - Legislative or Judicial has the 

authority to change the boundaries of a local 

option territory so as to render inoperative 

the law as put into operation during its pendency in that territory. The same authority 

that put it into operation must annul, . J ," 

In line with this reasoning, numerous Texas cases have 

held that not withstanding the fact the Commissioners' Court 

has the clear legal right to define, redefine, change or 

alter the boundaries of precincts within the county, that 

it is beyond the power of the Commissioners' Court to so 

change the boundaries of a justice precinct as to repeal 

a law passed by a local option election in favor or against 

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Honorable Ralph M. Hall, Page 4 (M-865) 

prohibition. Bullington v. Lear, 230 S.W.Zd 290 (Tex.Civ.App. 

1950, no writ); Goodie Goodie Sandwich, Inc. v. State, 138 

S.W.2d 906 (Tex.Civ.App. 1940, error dism., judg. car.); 

Houchins v. Plainos, supra; Jackson v. State, 118 S.W.2d 313 

(Tex.Civ.App. 1938, no writ). In accord, Attorney General 

Opinion Nos. C-658 (1966), C-681 (1966), and O-6880 (1945). 

It was further held in Attorney General Opinion No. 

WW-1149 (1961) that when one justice precinct is wet and 

a portion of a dry precinct is merged with it, and even 

though that part of the dry precinct merged with the wet 

precinct has no residents, the portion of the dry precinct 

merged with wet precinct remains dry. 

Senate Bill 925 prescribes in certain counties another 

means for legislation of alcoholic beverages in a constitutionally established dry area, other than by local option, 

as required by the Constitution. 

It is our opinion that Senate Bill 925 violates the 

constitutional mandate for local option and therefore is 

unconstitutional. To hold otherwise would have the effect 

of taking the local option power prescribed by the Constitution 

away from the voter in the locality and lodge it with the 

Commissioners Court, who would be empowered to repeal 

local options in portions of the justice precinct by 

simply changing the boundaries of said precincts.~ Such " "" 

an effect is not in harmony with the Constitution and the 

laws of this State, as interpreted by the Supreme Court, 

and other courts of our State, in the cases and Attorney 

General Opinions cited above. 

SUMMARY 

Senate Bill 925, 62nd Legislature, Regular Session, 

1971, a proposed amendment to Section 23, Article 

I of the Texas Liquor Control Act, codified as 

Article 666-23, Vernon's Penal Code, providing that, 

in certain counties, an annexed "dry area" to a "wet 

area" shall occupy the same "wet" status as the 

annexing area violates the constitutional mandate 

of local option and is therefore unconstitutional. 

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I. . 

Honorable Ralph M. Hall, Page 5 

Prepared by Guy C. Fisher 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Jay Floyd 

W. 0. Shultz 

Ralph Rash 

James Quick 

MHADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-865) 

MARTIN 

General of Texas 

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