,



## TEXEA'PI'QENEY GENERAL OF EXAS

Honorable G. L. Kelly, Jr. Opinion No. C-681 CountyAttorney County of Bastrop Re: When a smallerent1t.v has Bastrop, Texas

Dear Xr. Kelly: voted “dry” under a prior local option election and has been consolidated Into a "wet" entity, a Justice Precinct;and an application has been presented to the County Clerk for a petition for a local option election to legalize the sale of all intoxicating liquors In the “dry”area only, Is it necessary for the election to be held for the entire Justice Precinct
as it now exists, or only for the lesserentity, i.e. the smallerprior precinct which is dry and a related question.

Your letterrequesting an as follows: opinion of this office reads

Vhls Is a request for an Attorney Goneral*s Opinion concerningArt. 666-32 of the Texas Penal Code, as amended, speclf';itally concerningLocal Option Elections under the Texas Liquor Act.
“Prior to 1948, this Countywas co osed of eight (8) Justice Precincts. $8 In 19 these eightwere consolidatedinto four (4) Justice Precincts.
“Prior to 1948, one of the Justice Precinctswhich Is new consolidated into a larger Precinct, voted ‘dry!and exlnts presently as such. The remainder of the present Justice Precinct (and the larger portion, axea and populationwise) Is -3274-Honorable G. L. Kelly, Jr., Page 2 (C-681)

'wet'. Application Isbeing made under the above quoted Act for a Petition for
a Local Option Election to legalize the sale of all alcoholicbeverages In the dry area, It being the Intent only to affect the area now 'dry'and not to affect, in any manner, the rest of the presently existing Justice Precinctwhich Is 'wet'. Inasmuch as the subdivisions listed In said act are limited to 'county, recinct or Incorporatedtown or c y!k--rw e specific areas towhich an election canbe defined, this is the question:
"QUESTION: When a smallerentity has voted Idry'under a prior local option election, and has been consolidatedInto a predominantly 'wet'larger entity, a Justice Precinct; (which Is the smallest subdivision in the Texas Liquor Control Act in rural areas) and an application has been presented to the County Clerk for a Petition for a local option election to legalize the sale of all Intoxicating liquors in the 'dry'area only, Is It necessary for the election to be held for the entire JusticePrecinct as it now exists, or only for the lesser entity, I.e. the smallerprior precinct,which is 'dl-y'?

"A second question exists also. This made existent since ourVoter Registration Law of 1966. The Local Option Election portion above quoted states that If a petition is issued, It requires 25s of the qualified voters of said subdivision (whatever the subdivisionmay be, according to your answer to the Question above.) before an election can be orderedby the Commlssioners Court. It further states 'taking the votes for Governor at the last preceding General Election at which presldentlal electors were elected as the basis for determining the qualifiedvoters! In said subdivision. Obviously, the number of Oquallfledvoters' et saidpreceding 'Oanera1 Election'will not be the same as the 'qualifiedvoters' under theVoter Reglstratlon Law of 1966. -3275-Honorable G. L. Kelly, Jr., Page 3 (C-681)

"QUESTTON:Which criteria shouldbe used in determiningwhether 25% of the qualified voters of a subdivision, In a local option election have signeda petition for such an election: 1) The votes for Governor at the lastpreceding General Election at which presidentialelectorswere elected; or, 2) The qualifiedvoterswho have qualified to vote by registerin

1962 under theVoter Reglstrationmaw of ?'
Attorney General's OpinionNo. o-6917 (1946) states in part as follows (a copy of which is attachedhereto):

"It is a well settledrule under the Texas cases thatwhenever a local option law Is once legallyput into operation in
a given territory, itmust remain In force untll It has been voted out by the voters of the territorywhere such lawwas origlnally vitalized. See Ex Parte Pollard, 103 S.W. 878, and Walllng vs. King, County Judge, 87 S.W. (2d) 1074. ArticleXVI, Section 20 of the Texas ConstitutionDrovldes for elections only In the counti tlce'sprecinct or incorporatedtown

- -- "Havingdetermined that the exclusive method of changing the status of a ldryl 'wet'area is by an election izoceed to the question of the ;orrn zFwthe ballot to be used In an election In an incorporated citypart of which Is 'wet' and part of which is 'dry'.

"Pursuant to Section 20 of ArticleXVI of the Texas Constitution,previously set forth In this opinion, the .,Forty-fourth Legislature In 1935 passed the Texas Llquor ControlAct which Is to be found In Articles 666 and 667 of Vernon's Annotated Penal Code, 1925. Article 666-23 deflnes a 'dryarea' and a 'wetarea' as follows:

beveragesmeen prohibitedby valid local -3276-Honorable G. L. Kelly, Jr., Page 4 (C-681)

optlon electionsheld under the laws of the State in force at the time of the taking effect of Section 20, Article XVI, Constitutionof Texas in theyear 1919. It likewise shallmean and refer to any such areas where sale of such alcoholic beverages shall be prohibited under the terms of this Act.
"iThe term "wetarea" shallmean and refer to all other areas of the State.' (Emphasisadded)

"An examlnatlon of the above underscored language In Article 666-33 (sic) forces us to the conclusion that the determlnatlon of the status of one of the polltlcal rrubdlvlslons mentioned In Article XVI, Section x) of the Texas Constitutiondepends upon a considerationof the status of the county, justiceprecinct, or inaorporated town or city as a whole, and that one of the above subdlvlalonsmay not be part 'dry'and part 'wet' :;&the purposes of a local option elec-

. It 18 our further opinion that If any part of the subdivision Is 'wet'then the entire subdlvlslon Is *wet'for QUrposes of a local option election. The City of Pasadena, despite the fact that the entire citywas originally a 'dry area'. Is now a *wetarea' by virtue of the fact that liquormay now be legally sold In a portion of the lncgrporated city."

In view of the above Attorney General's Opinionand

-__-.___ ___~ ----~ ~-~. ~~_~.~.,. - 'Sls-th6 oplnlok of Ns office that It Is necessary for the election to be held for the entire JusticePrecinct as it now exists. Patton v. Texas Liquor Control Board. 293 S.U.2d 99 (Tex. CIY.ADD. 1956 error ref. n.r.e. I. If tl

It Is further the opinion of this office that for the limitedpurposes of a local option election, the Justice Precinctas It presently existe shall be considered
as a "wet area" within the meaning of the Texas Liquor Control Act.

-3277-,

Honorable 0. L. Kelly, Jr., Page 5 (C-681)

In anawer toyour second question,Attorney General’s Opinion No. C-332 holds that the languageof Article 666- 32,Vernon’s Penal Code,which Qrescrlotis the form of a petition for a local option election, Is mandatory,not directory.

Ye here reaffirm and concur in the correctnese of Attorney General’s OpinionNo. C-332 

### (1964) and the necessary implicationsof’suchopinion. Article 666-32 specifically sets forth the criterion to be followed in determining the qualllled voters In the county, justice18precinct

### or inCOrpOrated town or city and is not affectedby theVoter RegistrationLaw of 

### 1966.

It shouldbe noted that the StateLegislaturemay aet any reasonable standard that must be met in any Qetitlon calling for an election. In Article 666-32,Vernon’8 Penal Code, the criterion tobe followed 18 25 per cent of’ the qualified voters in the jueticelsprecinct ‘takingthe votes for Governor at the lastpreceding General Election at which presidentialelectorswere elected a8 the basis for determining the qualifiedvoters In such

. . . justice’s precinct.

. . .”
SUMMkRY

When a prior Justice Precinct has voted “dry” under a prior local option election and has been consolidated into a “wet” Justice Precinct, In order for the Frlor Justice Precinct to become “wet it Is necessary for an election tobe held for the entire Justice Precinct as It now exists; the criterion to be used In determiningwhether 25s of the qualified voters have signeda petition, For a local option election, 1s the votea cast for Governor at the last precedingGeneral Election at which QPXidential electorswere elected. Article 666-32,V.P.C.

Yours very truly,

WAGGONER CARR Attorney General of Texas

-3278-Honorable G. L. Kelly, Jr., Page 6 (C-681)

Assistant'kttorneyGeneral
DHC/'dt

APPROVED

OPINION COMMITTEE

W. V. Geppert, Chairman Mary K. Wall John Reeves Phllllp Crawford Ronald Luna

APPROVED FOR THE ATTORNEY GENERAL BY T. B. Wright

-3279-