THE A~OIRNEY GENERAL 

ow TEXAS 

aoEN L amA. 

AX~STIN. TEXAU T'S711 

A-RNEY OErummAL 

July 10, 1973 w /f$y? 

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

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

Precinct No. 2 is wet for the sale of beer. [Article 666-40 (b) (2)]. 

On August 5, 1972, an election a.as held under Article 666-40 (b) (7) for or 

against the legal sale of all alcoholic beverages including mixed beverages. 

The majority cast their votes against the proposition. 

The only information given with reference to Precinct No. 3 is that 

on April 5, 1972, an election was held in the incorporated city of Magnolia 

under Article 666-40, $ (b) (I), for or against the legal sale of beer foroffpremises consumption only, with a majority of the voters casting their votes 

against the propostition. However, Precinct No. 3 is wet for the legal sale 

of all mixed beverages. 

We have no information concerning Precinct No. 4. 

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

Apparently petitions have been circulated (1) in Montgomery County 

requesting the Commissioners Court to call a county-wide election pursuant 

to Article 666-40 (b) (7) and pursuant to (2) in Precinct No. 3 for the same 

purpose. Your questions concern whether certain precinct voters will be 

able to vote in the county-wide election and the effect of the election on the 

local option statuts of particular governmental subdivisions should the legalization issue pass or fail. 

Question No. 1: 

“Due to the fact that Justice Precinct No. 2 

voted on this same issue less than a year ago, would 

the voters of Precinct No. 2 be able to vote in the 

county-wide election? ” 

Which political subdivisions can hold local option elections is determined 

by Article 16, 5 20, 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 of the law either of them 

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. 2d at 866). 

The only limitation is that an election for the same purpose in the 

same area must not be held oftener than once a year 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 of the last 

preceding local option election in any county, 

justice precinct, or incorporated city or town. ” 

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

There is no exception either constitutional or statutory that prohibits voters of a precinct who within the last year cast their votes 

against the legalization issue to vote on the same issue in a county-wide 

local option election. In fact, if only a portion of the 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 of the Texas Constitution and Statutes, 

the qualified voters resident in Precinct No. 2 are 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. 2 would 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 on a county-wide basis carries 

for the legal sale of all alcoholic beverages including 

mixed beverages, would Precinct No. 2 be wet for all 

purposes or would the Attorney General’s Opinion No. 

286 apply and Precinct No. 2 remain as is? IV 

The term “local option” is well understood by the voters of Texas. 

A local option election is a clear, valid declaration of the will of the voters. 

The Supreme Court in Houchins v. Plainos, 110 S. W. 2d 549(Tex.I,937),held 

that the Constitution provides the exclusive means by which the issue of 

prohibition or legalization of alcoholic beverages should be decided. 

Under Texas case law, a local option law is enforced until it has 

been voted out by a majority of the voters of the 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. 252 
Honorable William J. Benardino, page 4 (H-59) 

However, under the Constitution and local option statutes, a negative 

vote on a legalization issue has no effect. The local option status of the 

governmental subdivision remains the same as it was before the election. 

See Attorney General’s Opinion No. WW-1104 (1961). It takes a positive 

vote in either a legalization or prohibitory election to establish a local 

option statuts that can not be changed subsequently except by a majority 

of the 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 of the last 

preceding local option election, Article 666-32, Vernon’s Texas Penal Code. 

In Fox v. Burgess, 302 S. W. 2d 405 (Tex. 1957), the Supreme Court 

held that a vote on issue ‘E’ against the legal sale of all alcoholic beverages 

would not preclude another election within the same year on a different 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 of the 

issue submitted involves the sale of mixed beverages, 

any other type or classification of alcoholic 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. 2 which would 

prohibit the legalization of all alcoholic beverages including mixed beverages on a county-wide basis, the local option status of Precinct No. 2 

would be the same as the county until a different result was established 

by a subsequent precinct election should there ever be one. 

Question No. 3: 

“If the Precinct No. 3 election was first and 

carried and the county-wide election last, what would 

be the status of Precinct No. 3?” 

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

Since the issue of the legalization of all alcoholic drinks including 

mixed drinks, Article 666-40 (b) (7), has not been previously presented 

in Precinct 3 and assuming all the statutory and constitutional provisions 

are complied with, Precinct No. 3 would take on new local option status 

independent of the county. As discussed in Question No. I, the voters in 

Precinct No. 3 would 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 of the county 

until the qualified voters of Precinct 3 elect to establish a different 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 a legalization election 

establishes no local option status nor does it have any prohibitory effect. Just 

as Precinct No. 2 and 3 would take on the status of the county, there being no 

binding local option status prohibiting such an effect, so would the city. Of 

course, the city in a subsequent 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 on a county-wide basis fails, 

would Precinct No. 1 be dry for all purposes? ” 

Again, as previously discussed, the local option status of the county, 

justice precincts or incorporated city or town can only be changed by an affirmative vote of the majority of the 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 of all alcoholic beverages inc,luding 

mixed beverages, ” could be changed would be for the voters in that precinct to 

change the status. 

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

It has been called to our attention that in Attorney General Opinion 

No. H-34 (1973) it was stated, contrary to what we have said above, that 

a negative vote on a “for” election will render the previously wet areas 

dry. We were incorrect and to that extent Opinion H-34 is hereby modified. 

SUMMA,RY 

Where there is a county-wide local option 

election, it is unimportant that certain precincts 

had had such elections within one year. All areas 

of the county participate in the 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, 

the voters 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