ATTORSICX- GlcX~lxAr. 

August 25, 1969 

Honorable William M. Day Opinion No. M-457 

County Attorney of Calhoun County 

Calhoun County Courthouse Re: Status of sale or 

Port Lavaca, Texas 77979 dispensing of alcoholic beverages 

Precinct No. 3 of 

Calhoun County, Texas, 

under local option 

Dear Mr. Day: elections. 

You requested an opinion from this Office concerning the 

captioned question and furnished us with a history of local 

option elections in Calhoun County supplied by the County Clerk 

of Calhoun County. A letter submitted by you subsequent to 

your original request states a6 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 conciseness we have abstracted and numbered the 

numerous elections and shall hereinafter refer to each by 

its designated number. The dates of the filing of the petitions and canvassing of returns have been deleted. In all 

instances hereinafter, "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 elections held in Calhoun County or precinct(s) 

thereof furnished are 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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Honorable William M. Day, page 2 (M-457) 

(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 Precincts Nos. 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 Precincts Nos. 1, 3 and 5 

December 28, 1935 

For Legalizing Sale of All Liquors - 124 

Against Legalizing Sale of All 

Liquors - 65 

Justice Precinct No. 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 Precinct No. 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 

-2270- 
Honorable William M. Day, page 3 (M-457) 

(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 informed us that Precinct No. 3 has remained 

constant in land area at all material times herein. 

Although we may assume compliance with certain procedural 

safeguards in the elections presented for consideration, we 

cannot disregard substantive statutory requirements, including 

time limits imposed between local option elections and the 

combination of political subdivisions in voting in local option 

elections. 

With reference to elections numbered above as (I), (2), 

(3) and (4) we have reached the conclusions which follow: 

Election 1 established prohibition in Precinct No. 3 and 

Election rl 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. . .shall be held within 

the same prescribed limits in less than two 

years after an election. . .' Acts 29th Leg. 

1905, ch. 158, p. 378. 

Further consideration must be given to the exception provided 

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 

county until after prohibition has been defeated at a subsequent election for the same 

purpose, ordered and held for the entire county, 

in aczordance with the provisions of this title 

* . . Acts 23rd Leg. 1905, ch. 45, p. 48, as 

amended. (emphasis added) 

-2271- 
Honorable William M. Day, page 4 (M-457) 

Under the exception contained in Article 5726, Election (2) 

was valid; however, Election (3) is invalid in that it does 

not fall within said exception. Election (4) is invalid because of the express prohibition contained in Article 5726. 

The repeal of National Prohibition in 1933 and the 

passage by amendment of Article XVI, Section 20 of the Constitution of Texas, operated to restore to each county or 

'political subdivision its former status relative to prohibiting the sale of intoxicating beverage as it existed before 

the adoption of the amendment. Rockholt v. State, 136 Tex. 

Crim. 479, 126 S.W.2d 488 (1939). 

With reference to elections heretofore listed as 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 Precinct No. 3 in that the voters of Precinct No. 

3 voted against the sale of beer in Election (11) and could 

'validly do so as such Precinct was on an equal footing with 

Calhoun County as to prohibiting the sale of alcoholic beverages 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 Opinion Nos. C-715 (1966) and WW-g76f(lg60). 

Whether Justice Precincts Nos. 1, 3 and 5 combined as a unit 

to bind all jointly, or if each voted as a separate unit in 

Election (6), would be immaterial since Precinct No. 3 voted 

against the legal sale of beer in Election (11). 

With reference to elections listed above 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 

Precinct No. 3. Cf Coker v. Kmeicik, 87 S.W.2d 1076 (Tex. 

Comm.App. 1935). Rockholt v. State, supra; Attorney General 

Opinion No. v-262 (1 4 ) From all appearances, Precincts 

Nos. 1, 3 and 5 comb?nzd'to vote as a unit in Election (6) 

since other elections are designated as "countywide" and 

"Precinct No. 3”. With this assumption, we must conclude 

Election (6) is invalid. Combination of precincts was permissible under former Article 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 foregoing assumption. It 

should be observed here that if Election (8) concerns separate 

elections by each precinct in question, our conclusion would 

be different and we would be of the opinion that Precinct No. 

3 would be 'wet" ~ 

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

-2272- 
. . 

Honorable William M. Day, page 5 (M-457) 

defined in Article 666-3a, Subsection (5), Vernon's Penal 

Code. 

With reference to the remaining elections numbered (q), 

(10) and (ll), the 1935 Amendment to Article XVI, Section 20 

of the Constitution of Texas placed counties and political 

subdivisions on 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 Precinct No. 3 of Calhoun 

County. Election No. 11 was valid, in that Precinct No, 3 

was a dry precinct at the time of the elections Nos. (g), 

(10) and (ll), as Election No. 1 voted for prohibition, and 

the subsequent Election Nos. (1) through (8) did not affect 

such dry status. 

SUMMARY 

Under the factual matters presented, the sale 

or dispensing of any type of alcoholic beverage in 

Precinct No. 3, Calhoun County, is prohibited by 

vote under local option elections. 

Ver&?ruly yours, 

General of Texas 

Prepared by 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 Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

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