ATTORSICX- GlcX~lxAr. August 25, 1969

HonorableWilliam M. Day OpinionNo. M-457 County Attorney of Calhoun County Calhoun County Courthouse Re: Status of sale or Port Lavaca, Texas 77979 dispensing of alcoholic beverages PrecinctNo. 3 of Calhoun County, Texas, under local option Dear Mr. Day: elections.

You requestedan opinion from this Office concerning the captioned question and furnishedus with a history of local option elections in Calhoun County suppliedby the County Clerk of Calhoun County. A letter submittedby you subsequentto your original request statesa6 follows:

"I am requesting that you base your opinion upon the assumption that all of these local option elections as stated in the County Clerk's letter, are legal and valid."

For concisenesswe have abstracted and numbered the numerous elections and shall hereinafter refer to each by its designatednumber. The dates of the filing of the petitions and canvassing of returns have been deleted. In all instanceshereinafter, "area"will designate the precinct(s) within or the County of Calhoun, "date"will refer to the election date, and 'vote"will refer to the results of said election.

The electionsheld in Calhoun County or precinct(s) thereof furnishedare as follows:
(1) Area: Justice Precinct No. 3 Date: January 3, 1914 Vote: For Prohibition - 35

Against Prohibition - 0
(2) Area: County of Calhoun Date: October 12, 1915 Vote: For Prohibition - 280

Against Prohibition - 279

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(3) Area: Date: Vote: County of Calhoun (countywide)

December 20, 1915 For Prohibition - 296 Against Prohibition - 322
(4) Area: Date: Vote:

(5) Area: Date: Vote:

(6) Area: Date: Vote:

(7) Area: Date: Vote:

(8) Area: Date: Vote:

(9) Area: Date: Vote:

(10) Area: Date: Vote: Justice Precincts Nos. 1, 3 and 5

December 14, 1916 For Prohibition - 300 Against Prohibition - 274
County of Calhoun (countywide) October 28, 1933 To Permit Sale of Beer - 267 To Prohibit Sale of Beer - 11.8
Justice PrecinctsNos. 1, 3 and 5 October 28, 1933 To Permit Sale of Beer - 195 To Prohibit Sale of Beer - 94
County of Calhoun (countywide) December 28, 1935 For Legalizing Sale of All Liquors - 192 Against Legalizing Sale of All Liquors - 97
Justice PrecinctsNos. 1, 3 and 5 December 28, 1935 For Legalizing Sale of All Liquors - 124 Against Legalizing Sale of All Liquors - 65
Justice PrecinctNo. 3 July 9, 1960 For the Legal Sale of Beer for OffPremises Consumption Only - 180 Against the Legal Sale of Beer for OffPremises Consumption Only - 238
Justice PrecinctNo. 3 June 6, 1964 For the Legal Sale of Beer for OffPremises Consumption Only - 194 Against the Legal Sale of Beer for OffPremises Consumption Only - 278

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(11) Area: Justice Precinct No. 3 Date: July 19, 1966 Vote: For the Legal Sale of Beer - 148

Against the Legal Sale of Beer - 293

You further informedus that PrecinctNo. 3 has remained constant in landarea at all material timesherein. Althoughwe may assume compliancewith certain procedural safeguards in the elections presented for consideration,we cannot disregard substantive statutoryrequirements, including time limits imposedbetween local option electionsand the combination of political subdivisions in voting in local option elections.
With reference to electionsnumbered above as (I), (2), (3) and (4) we have reached the conclusionswhich follow: Election 1 establishedprohibition in PrecinctNo. 3 and

rl Election 2

. if valid, did not change this status,but established prohibition **in** the entire County of Calhoun. Resort must be had to Article 5724,Vernon's Sayles'Texas Statutes of 1914, in order to determine the validity of Elections (2), (3) and (4),which Article provided, in part, as follows:

. . .No election.

. .shallbe held within the same prescribed limits in less than two years after an election.

. .'Acts 29th Leg. 1905, ch. 158, p. 378.

Further considerationmust be given to the exceptionprovided in Article 5726, Vernon's Sayles'Texas Statutes of 1914, which provided, in part, as follows:

II

. . .nor shall the holding of an election in a justice's precinct in any way prevent the holding of an election immediately thereafter for the entire county in which the justice precinct is situated;but, when prohibition has been carried **at** an election for the entire county, no election on the question of prohibition shall be thereafter ordered in any justice precinct, town or city of said countyuntil after prohibitionhas been defeated at a subsequent election for the same purpose, ordered and held for the entire county, in aczordancewith the provisions of this title *

. . Acts 23rd Leg. 1905, ch. 45, p. 48, as amended. (emphasisadded)

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Under the exception contained inArticle 5726, Election (2)
was valid; however, Election (3) is invalid in that it does not fallwithin said exception. Election (4) is invalidbecause of the express prohibition contained inArticle 5726.

The repeal of National Prohibition in 1933and the passageby amendment of Article XVI, Section 20 of the Constitution of Texas, operated to restore to each county or 'politicalsubdivision its former status relative to prohibiting the sale of intoxicatingbeverage as it existedbefore the adoption of the amendment. Rockholtv. State, 136 Tex. Crim. 479, 126 S.W.2d 488 (1939).
With reference to electionsheretofore listedas numbers (5) and (6) we have reached the following decision. It is unnecessary to discu,ss the effect of Election (5) upon the status of PrecinctNo. 3 in that the voters of PrecinctNo. 3 voted against the sale of beer in Election (11)and could 'validly do so as such Precinctwas on an equal footingwith Calhoun County as to prohibiting the sale of alcoholicbeverages at the time of Election (11). Myers v. Martinez, 320 S.W.2d 862 (Tex.Civ.App.1959, error ref. n.r.e,). C Attorney General OpinionNos. C-715 (1966)and WW-g76f(lg60). Whether Justice PrecinctsNos. 1, 3 and 5 combined as a unit to bind all jointly, or if each voted as a separateunit in Election (6),would be immaterial since Precinct No. 3 voted against the legal sale of beer in Election (11).
With reference to elections listedabove as nu;rn;r;,i:) and (81, we have concluded as hereinafter stated. that Calhoun County voted to legalize the sale of all liquors in Election (7) would not repeal prohibition in Justice PrecinctNo. 3. Cf Coker v. Kmeicik, 87 S.W.2d 1076 (Tex. Comm.App. 1935).Rockholt v. State, supra;Attorney General OpinionNo. v-262 (1 4 ) From all appearances, Precincts Nos. 1, 3 and 5 comb?nzd'tovote as a unit in Election (6) since other electionsare designatedas "countywide"and "PrecinctNo. 3”

. With this assumption,we must conclude Election (6) is invalid. Combination of precincts was permissible under formerArticle 5715,Vernon's Sayles' Texas Civil Statutes of 1914; however, there was no provision in the 1933 Amendment to Article XVI, Section 20 of the Constitution of Texas which allowed any two or more of any political subdivisions of a county to combine and vote, Our ultimate conclusion herein is based on the foregoingassumption. It should be observedhere that if Election (8) concerns separate electionsby each precinct in question, our conclusionwould be differentand we would be of the opinion that Precinct No. 3 would be 'wet"

~ for the sale of "liquor",as that term is

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HonorableWilliam M. Day, 

### page5 (M-457)

defined in Article 666-3a, Subsection (5),Vernon's Penal Code.
With reference to the remaining electionsnumbered (q), (10)and (ll),the 1935Amendment to Article XVI, Section 20 of the Constitution of Texas placed counties and political subdivisionson equal footing in local option elections. Myers v. Martinez, supra. It is n&necessary to discuss the effect of Elections (9)and (10)because Election (11) prohibited the sale of beer in PrecinctNo. 3 of Calhoun County. Election No. 11 was valid, in that PrecinctNo, 3
was a dry precinct at the time of the electionsNos. (g), (10)and (ll),as ElectionNo. 1 voted for prohibition,and the subsequentElectionNos. (1) through (8)did not affect such dry status.

SUMMARY

Under the factualmatters presented,the sale
or dispensing of any type of alcoholic beverage in Precinct No. 3, Calhoun County, is prohibitedby vote under local option elections. Ver&?ruly yours,

General of Texas
Preparedby Jay Floyd Assistant Attorney General

APPROVED:

OPINION COMMITTEE Kerns Taylor, Chairman George Kelton,Vice Chairman

John Banks Neil Williams Tom Bullington Roland Allen
W.V. GEPPERT Staff LegalAssistant

HAWTHORNE PHILLIPS ExecutiveAssistant

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