# THE A~OIRNEY GENERAL **ow TEXAS** 

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### AX~STIN. TEXAU T'S711 A-RNEY OErummAL July 10, 1973 

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Honorable William J. Benardino Opinion No. H- 59 County Attorney Montgomery County Re: Local option election Dear Mr. Benardino:

You have submitted to us the original request you received from the Honorable Lynn Coker, County Judge of Montgomery County,for your opinion concerning local option elections; your response to Judge Coker; and your authorities submitted to us with your request for our opinion.

Based on these instruments it is our understanding that Montgomery County is divided into four precincts.

Precinct 1is wet for the legal sale ofall alcoholic beverages, including mixed beverages, the most permissive status allowed. [Article 

### 666-40 (b) (7), V. T. P. C. ]

Precinct No. 2is wet for the sale ofbeer. [Article 666-40 (b) (2)]. OnAugust 5, 1972, an election a.as held under Article 666-40 (b) (7) for or against the legal sale ofall alcoholic beverages including mixed beverages. The majority cast their votes against the proposition.

The only information given with reference to Precinct **No.** 3is that onApril 5, 1972, an election was held in the incorporated city of Magnolia under Article 666-40, $(b) (I), for or against the legal sale ofbeer foroffpremises consumption only, with a majority ofthe voters casting their votes against the propostition. However, Precinct No. 3is wet for the legal sale of all mixed beverages.

We have noinformation concerning Precinct No. 4.



### p.250Honorable William J. Benardino, page 2(H-59)

Apparently petitions have been circulated (1)in Montgomery County requesting the Commissioners Court to call acounty-wide election pursuant to Article 666-40 (b) (7) and pursuant to (2) in Precinct No. 3for the same purpose. Your questions concern whether certain precinct voters will be able to vote in the county-wide election and the effect ofthe election on the local option statuts ofparticular governmental subdivisions should the legalization issue pass or fail.

Question No. 1:

“Due to the fact that Justice Precinct No. 2 voted onthis same issue less than ayear ago, would the voters of Precinct No. 2be able to vote in the county-wide election? ” Which political subdivisions can hold local option elections isdetermined byArticle 16, 520, Constitution of Texas, as interpreted in Myers v.Martinez, 320 S.W. 2d 862, (Tex. Civ.App., San Antonio, 1959), err. ref., n.r.e., 326 S.W. 2d 171 (Tex. 1959), where the Court of Civil Appeals said:

0

. . . counties, justice’s precincts and incorporated cities or towns should be on equal footing, and that by complying with the provisions ofthe law either ofthem might hold an election at any time to either ‘legalize’ or ‘prohibit’ the sale of alcoholic beverages, in keeping with the provisions of Sec. 40, art. 666, Vernon’s Ann. Penal Code.
. . .” (320 S.W. 2dat 866). The only limitation is that an election for the same purpose in the same area must not be held oftener than once ayear as is provided by Article 666-32 which reads:

“No subsequent election upon the same issue shall be held within one year from the date ofthe last preceding local option election inany county, justice precinct, or incorporated city or town. ”

p. 251Honorable William J. Benardino, page 3(H-59)

There is no exception either constitutional or statutory that prohibits voters ofaprecinct who within the last year cast their votes against the legalization issue to vote on the same issue ina county-wide local option election. Infact, if only aportion ofthe county were permitted to vote in the county-wide election, such election would probably be void. See Patton v. Texas Liquor Control Board, 293 S.W. 2d 99 (Tex. Civ.App. 1956, error ref., n.r.e.).

Thus, under the plain language ofthe Texas Constitution and Statutes, the qualified voters resident in Precinct No. 2are entitled to vote in a county-wide local option election along with the other qualified voters of the county.

A,ttorney General Opinions No. WW-945 (1960) and WW-976 (1960) support the proposition that all eligible voters in Precinct No. 2would be able to vote in a county-wide election even though they voted on the same issue less than one year ago.

Question No. 2:

“If the election onacounty-wide basis carries for the legal sale of all alcoholic beverages including mixed beverages, would Precinct No. 2be wet for all purposes or would the Attorney General’s Opinion No. 286 apply and Precinct No. 2remain as is? IV The term “local option” is well understood by the voters of Texas. A local option election is aclear, valid declaration ofthe will ofthe voters. The Supreme Court in Houchins v. Plainos, 110S.W. 2d 549(Tex.I,937),held that the Constitution provides the exclusive means by which the issue of prohibition or legalization ofalcoholic beverages should be decided.

Under Texas case law, a local option law is enforced until ithas been voted out by amajority ofthe voters ofthe territory where the law was originally adopted. Myers v. Martinez, supra; Attorney General’s Opinion C-681 (1966); WW-945 (1960): WW-976 (1960).

p. 252Honorable William J. Benardino, page 4 (H-59)

However, under the Constitution and local option **statutes,** anegative vote on a legalization issue has no effect. The local option status ofthe governmental subdivision remains the same as it was before the election. See Attorney General’s Opinion No. WW-1104 (1961). Ittakes apositive vote in either a legalization or prohibitory election to establish alocal option statuts that can not be changed subsequently except by amajority ofthe voters in the same territory. The only prohibitory effect authorized by statute is that no subsequent election upon the same issue in the same political subdivision shall be held within one year from the date ofthe last preceding local option election, Article 666-32, Vernon’s Texas Penal Code.

InFox v. Burgess, 302 S.W. 2d405 (Tex. 1957), the Supreme **Court** held that avote on issue ‘E’ against the legal sale of all alcoholic beverages would not preclude another election within the same year onadifferent issue.

Further, Article 666-40 (i). provides:

“No local option election may affect the sale of mixed beverages unless the proposition specifically mentions mixed beverages. .In an’y legalization or prohibitory local option election where any shade or aspect ofthe issue submitted involves the sale of mixed beverages, any other type or classification ofalcoholic beverages which was legalized prior to such election shall remain legalized without regard to the outcome of said election on the question of mixed beverages. ” Since there is no local option status of Precinct No. 2which would prohibit the legalization of all alcoholic beverages including mixed beverages on acounty-wide basis, the local option **status** of Precinct No. 2 would be the same as the county until adifferent result was established by a subsequent precinct election should there ever be one.

Question No. 3:

“If the Precinct No. 3election was first and carried and the county-wide election last, what would be the status of Precinct No. 3?”

p. 253Honorable William J. Benardino, page 5(H-59)

Since the issue of the legalization ofall alcoholic drinks including mixed drinks, Article 666-40 (b) (7), has not been previously presented in Precinct 3and assuming all the **statutory** and constitutional provisions are complied with, Precinct No. 3would take onnew local option **status** independent ofthe county. As discussed in Question No. I, the voters in Precinct No. 3would be entitled to vote in the county-wide election. The county-wide election is constitutionally and statutorily authorized and should the election presenting the legalization issue containing Article 666-40 (b) (7) carry, the precinct would take on the status ofthe county until the qualified voters ofPrecinct 3elect to establish adifferent **status.**

Question No. 4:

“If either or both elections carry, will the incorporated city of Magnolia be wet for everything except beer off premises? ” As discussed under Question 2, a negative vote in alegalization election establishes no local option **status** nor does ithave any prohibitory effect. Just as Precinct No. 2and 3would take onthe **status** ofthe county, there being no binding local option status prohibiting such an effect, so would the city. Of course, the city in asubsequent election could change its local option status imposed by the county election by electing to do so by a majority vote.

Question No. 5:

“If the election onacounty-wide basis fails, would Precinct No. 1be dry for all purposes? ” Again, as previously discussed, the local option status ofthe county, justice precincts or incorporated city or town can only be changed by an affirmative vote ofthe majority ofthe people within the political subdivision. A “no” vote has no effect and the county and justice precinct and city would retain the same local option status existing before the election. The only way Precinct i’s local option sfatus, “wet for the legal sale ofall alcoholic beverages inc,luding mixed beverages, ” could be changed would be for the voters inthat precinct to change the status.

p. 254Honorable William J. Bena*di*o, page 6(H-59)

Ithas been called to**our** attention that inAttorney General Opinion No. H-34 (1973) itwas stated, contrary to what we have said above, that anegative vote on a “for” election will render the previously wet areas dry. We were incorrect and tothat extent Opinion H-34 is hereby modified. SUMMA,RY Where there is acounty-wide local option election, it is unimportant that certain precincts had had such elections within one year. All areas ofthe county participate inthe election. A negative vote on the election would not affect those areas of the county which were already wet. An affirmative vote would render the entire county wet. However, thevoters of any proper area could vote their area dry as a subsequent election for that purpose. Very truly yours,
Attorney General of Texas APPR(bVED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 255