, 

TEXEA'PI'QENEY GENERAL 

OF EXAS 

Honorable G. L. Kelly, Jr. Opinion No. C-681 

County Attorney 

County of Bastrop Re: When a smaller ent1t.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 lesser entity, i.e. 

the smaller prior precinct 

which is dry and a related 

question. 

Your letter requesting an 

as follows : 

opinion of this office reads 

Vhls Is a request for an Attorney Goneral*s Opinion concerning Art. 666-32 of 

the Texas Penal Code, as amended, speclf';itally concerning Local Option Elections under the Texas Liquor Act. 

“Prior to 1948, this County was co osed 

of eight (8) Justice Precincts. In 19 $8 

these eight were consolidated into four (4) 

Justice Precincts. 

“Prior to 1948, one of the Justice Precincts which 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 population wise) Is 

-3274- 
Honorable G. L. Kelly, Jr., Page 2 (C-681) 

'wet'. Application Is being made under 

the above quoted Act for a Petition for 

a Local Option Election to legalize the 

sale of all alcoholic beverages 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 Precinct which Is 'wet'. 

Inasmuch as the subdivisions listed In 

said act are limited to 'county, 

recinct or Incorporated town or c y 

!k--rw 

e specific areas to which an election 

can be defined, this is the question: 

"QUESTION: When a smaller entity has 

voted Idry' under a prior local option 

election, and has been consolidated Into 

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 Justice Precinct as it now 

exists, or only for the lesser entity, 

I.e. the smaller prior precinct, which is 

'dl-y'? 

"A second question exists also. This 

made existent since our Voter 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 subdivision may be, according to 

your answer to the Question above.) before 

an election can be ordered by 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 qualified voters! In said 

subdivision. Obviously, the number of 

Oquallfled voters' et said preceding 'Oanera1 Election' will not be the same as the 

'qualified voters' under the Voter Reglstratlon Law of 1966. 

-3275- 
Honorable G. L. Kelly, Jr., Page 3 (C-681) 

"QUESTTON: Which criteria should be used 

in determining whether 25% of the qualified 

voters of a subdivision, In a local option 

election have signed a petition for such an 

election: 1) The votes for Governor at the 

last preceding General Election at which 

presidential electors were elected; or, 2) 

The qualified voters who have qualified to 

vote by registerin 

196 2 

under the Voter Reglstration maw of ?' 

Attorney General's Opinion No. o-6917 (1946) states 

in part as follows (a copy of which is attached hereto): 

"It is a well settled rule under the 

Texas cases that whenever a local option 

law Is once legally put into operation in 

a given territory, it must remain In force 

untll It has been voted out by the voters 

of the territory where such law was origlnally vitalized. See Ex Parte Pollard, 

103 S.W. 878, and Walllng vs. King, County 

Judge, 87 S.W. (2d) 1074. Article XVI, 

Section 20 of the Texas Constitution Drovldes for elections only In the counti 

tlce's precinct - or incorporated town -- 

"Having determined 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 city part of which Is 'wet' 

and part of which is 'dry'. 

"Pursuant to Section 20 of Article XVI 

of the Texas Constitution, previously set 

forth In this opinion, the .,Forty-fourth 

Legislature In 1935 passed the Texas Llquor Control Act which Is to be found In 

Articles 666 and 667 of Vernon's Annotated 

Penal Code, 1925. Article 666-23 deflnes 

a 'dry area' and a 'wet area' as follows: 

beverages meen prohibited by valid local 

-3276- 
Honorable G. L. Kelly, Jr., Page 4 (C-681) 

optlon elections held under the laws of 

the State in force at the time of the 

taking effect of Section 20, Article XVI, 

Constitution of Texas in the year 1919. 

It likewise shall mean and refer to any 

such areas where sale of such alcoholic 

beverages shall be prohibited under the 

terms of this Act. 

"iThe term "wet area" shall mean and 

refer to all other areas of the State.' 

(Emphasis added) 

"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 Constitution depends upon a consideration of 

the status of the county, justice precinct, or inaorporated town or city as a 

whole, and that one of the above subdlvlalons may 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 city was originally a 'dry 

area'. Is now a *wet area' by virtue of 

the fact that liquor may 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 Justice Precinct 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 limited purposes of a local option election, the Justice Precinct as 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 to your second question, Attorney General’s 

Opinion No. C-332 holds that the language of 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 Opinion No. C-332 (1964) and the necessary 

implications of’ such opinion. Article 666-32 specifically 

sets forth the criterion to be followed in determining the 

qualllled voters In the county, justice18 precinct or inCOrpOrated town or city and is not affected by the Voter 

Registration Law of 1966. 

It should be noted that the State Legislature may 

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 to be followed 18 25 per cent of’ 

the qualified voters in the jueticels precinct ‘taking the 

votes for Governor at the last preceding General Election 

at which presidential electors were elected a8 the basis 

for determining the qualified voters 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 

to be held for the entire Justice Precinct as It now exists; the criterion 

to be used In determining whether 25s 

of the qualified voters have signed a 

petition, For a local option election, 

1s the votea cast for Governor at the 

last preceding General Election at 

which QPXidential electors were 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'kttorney General 

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-