# 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 awet justice precinct in certain counties.
You have submitted for our consideration the constitutionality of Senate Bill 925, 62nd Legislature, Regular Session 1971, samebeing aproposed amendment to Section 23,,Article I of the Texas Liquor Control Act, codified as Article 666-23, Vernon's Penal Code, thepertinent portion ofwhich **as originally**  introduced, reads as follows: "Provided, however, thatwhenever 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 'wetarea', the annexed portion shall become wet if itsprior status was that of a 'dryarea', and such order of the Commissioners' Court attaching suchportion of adry justice precinct to awet justice precinct will not serve toprohibit 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 Article 16, Section 20r Subsection (b)and (c)of the Texas Constitution adopted in 1935 specifically repealed State wide prohibition and granted authority to the Legislature to return the State to a system of local option regu**lation,** in the following language: "(b) The Legislature shall enact a lawor laws whereby the qualified voters of any county, justice's

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precinct or incorporated town or city, may, by amajority vote of those voting, determine from time to timewhether the sale of intoxicating liquors forbeverage purposes shall beprohibited or legalized within theprescribed limits; and such laws shall contain provisions forvoting on the sale of intoxicating liquors ofvarious 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 tobe unlawful tomanufacture, sell, barter or exchange in any such county, justice's precinct or incorporated town or city, any spirituous,vinous ormalt liquors ormedicated bitters capable ofproducing intoxication or any other intoxicants whatsoever, forbeverage purposes, unless and until amajority of the qualified voters in such county or political subdivision thereof **voting** in an election held for such purpose shall determine such tobe lawful; provided that this subsection shall not prohibit' ~~"" "'~ the sale of alcoholic beverages containing not more than 3.2per cent alcohol byweight in cities,, counties orpolitical subdivisions thereof inwhich the qualified voters have voted to legalize such sale under theprovisions 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 andproviding for theholding of local dption elections. These provisions pertaining to elections are codified asArticle 666-32, et. seq.,Vernon's Penal Code. The term "local option" iswell understood by the Legislature and the voters of Texas. a clear, A local option election is

valid declaration of thewill of thevoters, which under the Constitution and statutes theyhave a right to authoritatively establish. The Supreme Court inHouchins v. Plainos, 130Tex. 413, 110 S.W.2d 549 (1937),ruled that

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the Constitution provides the exclusive means bywhich the issue ofprohibition or legalization of alcoholic beverages could be decided. That Court in the earlier case, State v. **Texas** Brewing Company, 106Tex, 121, 157 S.W. 1166 (1913) atpage 125 reached a similar conclusion when it stated: "Allpowers of government reside in thepeople, 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 amethod (areferendum) bywhich thevoters of agiven territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if ithad been embraced in the Constitution, andwe must so consider the local option law adopted by the voters of Clay County, for that, like the Constitution, is the exercise ofprimary sovereignty; therefore, what isprohibited by the local option law tobe done in Clay County, as to sale of intoxicating liquors, cannot be authorized by the Legislature tobe done there." (atp. 125). Therefore, asheld inMedford v, State, 74 S.W. 768, 45Tex.Crim, 80 (19031d "Where local option has been legally put into operation within a specified territory, it must remain in force in that territory; that nopower - Legislative or Judicial has the authority to change theboundaries of a local option territory so as to render inoperative the law asput into operation during itspendency in that territory. The same authority thatput it into operation must annul,
. J ,"
In linewith this reasoning, numerous Texas cases have held that notwithstanding the fact the Commissioners' Court has the clear legal right to define, redefine, change or alter theboundaries ofprecincts within the county, that it isbeyond thepower of the Commissioners' Court to so change theboundaries of a justice precinct as to repeal a lawpassed by a local option election in favor or against

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prohibition. Bullington v. Lear, 230 S.W.Zd 290 (Tex.Civ.App. 1950, nowrit); 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, nowrit). In accord, Attorney General Opinion Nos. C-658 (1966),C-681 (1966), and O-6880 (1945).
Itwas further held inAttorney General Opinion No. WW-1149 (1961)thatwhen one justice precinct iswet and aportion of adry precinct ismerged with it, and even though thatpart of the dry precinct merged with thewet precinct has no residents, theportion of the dryprecinct merged with wet precinct remains dry.
Senate Bill 925prescribes 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. Tohold otherwise would have the effect of taking the local option power prescribed by the Constitution away from the voter in the locality and lodge itwith the Commissioners Court, who would be empowered to repeal local options inportions of the justice precinct by simply changing theboundaries of saidprecincts.~ Such " "" an effect isnot inharmony with the Constitution and the laws of this State, as interpreted by the Supreme Court, and other courts of our State, in the cases andAttorney General Opinions cited above. SUMMARY Senate Bill 925, 62nd Legislature, Regular Session, 1971, aproposed 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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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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