August 3, 1961 

Honorable Doug Crouch 

District Attorney 

Tarrant County 

Fort Worth, Texas 

Dear Mr. Crouch: 

Opinion No. WW-1104 

Re: In an area which has legalized the sale of beverages 

containing alcohol 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 subject matter on issues involving local option elections. 

Your letter reads in part as follows: 

"(1) In an area which has legalized the 

sale of beverages containing alcohol not in 

excess of fourteen per centum (14%) by volume 

can a 'prohibitory' election be called by the 

presentin 

out as (m 

of any issues other than those set 

of the Pe!~l(~kebo) 

and (p) in Art. 666-40 

"(2) In an area where the sale of beverages 

containing alcohol not in excess of fourteen per 

centum (14%) by volume has been legalized would 

not a petition for an election on the issues of 

'for the legal sale of all alcoholic beverages' 

and 'against the 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 situation which 

has arisen in Tarrant County. On about September 10, 

1960, the voters of Precinct 7 in this county at an 
Honorable Doug Crouch, Page 2 (w-w-11041 

election called for that purpose pursuant to all 

statutory provisions voted to legalize the sale 

of beer and wine for off-premises consumption only. 

Residents of the precinct seeking the prohibitory-- 

nota legalizing -- election have presented to the 

County Judge and Commissioner's Court of Tarrant 

County a petition for an election upon the issues 

of 'for the legal sale of all alcoholic beverages' 

and 'against the legal sale of all alcoholic 

beverages."' (Emphasis added,) 

The uestions presented are controlled by the provisions 

of Articles % 66-32, 666-35 and 666-40 of Vernon's Penal Code which 

were passed pursuant to Article XVI, Section 20 of the Constitution 

of Texas. 

Article 666-40 is the law controlling the submission of 

issues in an election of this kind, and we agree with your analysis 

of this statute which we quote from your letter as follows: 

"'In areas where any type or classification 

of alcoholic beverages is prohibited and the issue 

submitted pertains to lepalization of the sale of 

one or more 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 consumption only.' 

"(Cl 'For the legal sale of beer and wine' 

and 'Against the legal sale of beer and wine.' 

"(d) 'For the legal sale of beer and wine 

for off-premise consumption only' and 'Against 

the legal sale of beer and wine for off-premise 

consumption only.' 

beveran!;i 'For the legal sale of all alcoholic 

R and 'Against the legal sale of all 

alcoholic beverages,' 

"(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 beverages has previously been legalized 

and sets out issues (g) through (1). The third 

portion of the statute is that applicable to 

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 alcohol not 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 and must be worded 'to suit nre-existinz situations in the area involved.' 

"The issue presented in the petition to the 

County Judge and Commissioners' Court of Tarrant 

County -- ' for the legal sale of all alcoholic 

beverages' and 'against the legal sale of all 

alcoholic beverages' -- is identical with issue 

(e) in Part One of the statute and is therefore 

available as a legalizing issue. The same phraseology 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 beverages has been 

legalized.' That is n,ot the 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 

'against the legal sale of all alcoholic beverages' 

-- to be used in an area where the sale of beverages 

containing alcohol not in excess of fourteen per 

centum by volume has been legalized, then obviously 

the Legislature would have included those issues in 

the third part of the statute. Since the statute 

is exclusive and mandatory as to the issues which 

may be submitted the omission of those phrases from 

the third and fourth portions of the statute make 

the issues unavailable 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 conformity with previous opinions issued by 

the office of the Attorney General, it is the only 

lo ical construction which can be given to Art. 

66&O." (Emphasis ours.) 
Honorable Doug Grouch, Page 4 (WW-1104) 

This construction is consistent with a previous construction of this statute b 

in Opinion No. MS-149 (1954 7 

Attorney General John Ben Shepperd 

and prior opinions by Attorneys 

General Gerald Mann (Nos. O-2114 and O-5244) and Grover Sellers 

(No. O-6917) dealing with the statute prior to its amendment 

in 1953. 

Your analysis also harmonizes with the followin court 

decisions hearing upon the subject:. Smith v. Counts, 2 8 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); 

and Myers 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 alcoholic beverages 

containing alcohol not in excess of fourteen per centum (14%) 

by volume for off-premise consumption only has 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 

alcoholic beverages" and "agafnst the legal sale of all alcoholic 

beverages" held upon the presentation of a petition validly calling 

for such a legalizing election in an area where the sale of beverages containing alcohol not in excess of fourteen per centum (14%) 

has been legalized could, upon an affirmative vote, produce the 

effect of greater legalization but a negative vote could not 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, in which area 

the sale of alcoholic beverages containin 

ho1 not in excess of fourteen per centum ?1$Oby volume for off-premises consumption only 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 alcoholic beverages" and 

"against the legal sale of all alcoholic beverages" held upon the presentation of a petition 

validly calling for such a legalizing election 

in an area where the sale of beverages containing alcohol not in excess of fourteen per centum 

(14%) has been legalized could, upon an affirmative vote, produce the effect of greater legal- 
I- - 

Honorable Doug Crouch, Page ~5 (ww-1104) 

isation but a negative vote could not 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 

Assistant Attorney 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.