August 3, 1961

Honorable Doug Crouch DistrictAttorney Tarrant County Fort Worth, Texas

Dear Mr. Crouch: Opinion No. WW-1104
Re: In an area which has legalized the sale of beverages containingalcohol not in excess of fourteen per centum (14%)by volume can a "prohibitory" election be called by the presenting of any issue other than those set out as (ml, (n), (0) and (p) in Art. 666-40 of the Penal Code?
You have requested an opinion of this Department on the above subjectmatter on issues involving local option elections. Your letter reads in part as follows:

"(1) In an areawhich has legalized the sale of beverages containingalcoholnot in excess of fourteen per centum (14%)by volume can a 'prohibitory'electionbe calledby the presentin out as (m of any issues other than those set of the Pe!~l(~kebo) and (p) inArt. 666-40

"(2) In an area where the sale of beverages containingalcohol not in excess of fourteen per centum (14%)by volume has been legalizedwould not a petition for an election on the issues of 'forthe legal sale of all alcoholicbeverages' and 'againstthe legal sale of all alcoholic beverages'be construed exclusively as a 'legalizing' election so that an affirmative%te would result in increasine leealiaation and a ne ative vote in retaininz the status quo? 

# F--- Emphasis added.) "My questions are prompted by a situationwhich has arisen in Tarrant County. On about September 10, 1960, the voters of Precinct 7 in this county at anHonorable Doug Crouch, Page 2 (w-w-11041 election called for that purpose pursuant to all statutoryprovisions voted to legalize the sale of beer and wine for off-premises consumptiononly. Residents of the precinct seeking the prohibitory-- nota legalizing -- electionhave presented to the County Judge and Commissioner'sCourt of Tarrant County a petition for an election upon the issues of 'forthe legal sale of all alcoholicbeverages' and 'againstthe legal sale of all alcoholic beverages."' (Emphasisadded,) The uestions presented are controlledby the provisions of Articles %66-32, 666-35 and 666-40 of Vernon's Penal Codewhich were passed pursuant to ArticleXVI, Section 20 of the Constitution of Texas.

Article 666-40 is the law controlling the submissionof issues in an electionof this kind, and we agreewith your analysis of this statutewhich we quote from your letter as follows:

"'In areas where any type or classification of alcoholicbeverages is prohibited and the issue submittedpertains to lepalization of the sale of one ormore such prohibited types or classifications, one of the following issues shall be submitted: "(a) 'For the legal sale of beer' and 'Against the legal sale of beer.' "(b) 'For the legal sale of beer for offpremise consumption only' and 'Against the legal sale of beer for off-premise consumptiononly.' "(Cl 'For the legal sale of beer and wine' and 'Againstthe legal sale of beer and wine.' "(d) 'Forthe legal sale of beer and wine for off-premise consumption only' and 'Against the legal sale of beer and wine for off-premise consumptiononly.' beveran!;i 'Forthe legal sale of all alcoholic R and 'Againstthe legal sale of all alcoholicbeverages,' "(f) 0 0 c."*-

.

Honorable Doug Crouch, Page 3 (ww-1104) "The second portion of the statute is to be applied to those areas where the sale of & alcoholic beverageshas previously been legalized and sets out issues (g) through (1). The third portion of the statute is that applicableto Precinct 7 of Tarrant County, quoted above, and setting out issues (ml through (p). The fourth portion of the statute is applicable only to areas where the sale of beer containing alcoholnot exceeding four per centum by weight has been legalized and sets out issues (q) and (r). The first part of the statute, therefore is legalizing -- the other three parts are prohibiting. The legalizing issues are Peneral -- the prohibitory issues are specific andmust be worded 'to suit nre-existinz situations in the area involved.' "The issuepresented in the petition to the County Judge and Commissioners'Court of Tarrant County -- ' for the legal sale of all alcoholic beverages' and 'againstthe legal sale of all alcoholic beverages' -- is identicalwith issue (e) in Part One of the statute and is therefore available as a legalizing issue. The samephraseology is also contained in the second part of the statute as issue (k)and is, therefore, available as a prohibitory election issue but only in areas 'where the sale of all alcoholic beverageshas been legalized.' That is n,otthe situation in Precinct 7 of Tarrant County. Obviously if it had been the intent of the Legislature to permit the issue -- 'for the legal sale of all alcoholic beverages' and 'againstthe legal sale of all alcoholicbeverages'

-- to be used in an area where the sale of beverages containing alcoholnot in excess of fourteen per centum by volume has been legalized, then obviously the Legislaturewould have included those issues in the third part of the statute. Since the statute is exclusive and mandatory as to the issueswhich may be submitted the omission of thosephrases from the third and fourth portions of the statutemake the issuesunavailable for a prohibitory election in any area defined in either the third or the fourth part of the statute. "The above construction of the statute is not only in conformitywith previous opinions issuedby the office of the Attorney General, it is the only lo ical constructionwhich can be given to Art. 66&O." (Emphasisours.)Honorable Doug Grouch, Page 4 (WW-1104) This construction is consistentwith a previous construction of this statute b in Opinion No. MS-149 (1954 7 Attorney GeneralJohn Ben Shepperd and prior opinionsby Attorneys General GeraldMann (Nos.O-2114 and O-5244)and Grover Sellers (No.O-6917) dealing with the statute priorto its amendment in 1953.

Your analysis also harmonizeswith the followin court decisions hearing upon the subject:. Smith v. Counts, 8 2 2 S.W.2d 422 Civ.App. 1955); Fox v. Burgess, I 157 Tex. 292, 302 S.W.2d 405 1957); Sumrow v.,Sterrett, 304 S.W.Zd 609 (Civ.App.,1959); andMyers v0 Martinez, 320 S.W.2d 862 (Civ.App.1959).

In answer to your first question,you are therefore advised that a prohibitory local option election in Precinct 7 of Tarrant County, in which area the sale of alcoholicbeverages containing alcohol not in excess of fourteenper centum (14%) by volume for off-premise consumptiononlyhas been heretofore legalized,may be held only under Section (p)of Article 666-40, V.P.C.
In answer to your second question,you are further advised that an election on the issues "for the legal sale of all alcoholicbeverages" and "agafnstthe legal sale of all alcoholic beverages"held upon the presentation of a petitionvalidly calling for such a legalizing election in an areawhere the sale of beverages containing alcohol not in excess of fourteenper centum (14%) has been legalized could, upon an affirmativevote, produce the effect of greater legalizationbut a negativevote couldnot have a prohibitory effect and would, therefore,mean that the preelection status of the area would be retained.
SUMMARY (1) A prohibitory local option election in Precinct 7 of Tarrant County, inwhich area the sale of alcoholicbeverages containin ho1 not in excess of fourteen per centum ?1$Oby volume for off-premises consumptiononly has been heretofore legalized,may be held only under Section (p) of Article 666-40,V.P.C, (2) An election on the issues "for the legal sale of all alcoholicbeverages"and "against the legal sale of all alcoholicbeverages" held upon the presentationof a petition validly calling for such a legalizingelection in an area where the sale of beveragescontaining alcohol not in excess of fourteenper centum (14%)has been legalized could,upon an affirmative vote, produce the effect of greater legal-I- -

Honorable Doug Crouch, Page ~5 (ww-1104) isationbut a negative vote couldnot have a prohibitory effect and would, therefore,mean that the pre-election status of the area would be retained.
Yours very truly,
WILL WILSON Attorney General of Texas

By/& /c Harris Toler AssistantAttorney General
HT:ca APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman John Stienberger L. P. Lollar Elmer McVey John Leonars
REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.