. . - 

Honorable James Vi. Stravm 

county attorney 

'Nillacy County 

Raymondville, Texas 

%ar Sir; Opinion No. O-4466 

Re: Whet is the legal status of 

a politioal subdivision in a 

county when said political 

subdivision is dry as to four 

per cent beer and the county 

is wet as to malt and vinous 

beverages that do not contain 

alcohol in excess of fourteen 

per cent by volume? 

Your letter requesting the opinion of this department on 

the above stated question reads as followsr 

"I would like an opinion on the following question: 

'Illhat is the legal status of a political subdivision in 

a county when said political subdivision 1s dry to four 

(4%) per cent beer, and the county is wet as to fourteen 

(14%) per cent beer?' 

"An unusual situation has again arisen in this 

county and ,I would like to give you a little of the 

history so you may answer this question. In 1937 all 

alcoholic beverages were prohibited in the county; in 

1936 four (4%) per cent beer was legalized within the 

county; later an election to legalize all alcoholic 

beverages failed to carry; in 1939 four (4%)per cent 

beer was legalized in the aounty; in 1941 four (4%) vir 

cent beer was prohibjted in the county: and in 1942 the 

sale of fourteen (14%) per cent beer and wine was 

legalized. tiring the time that the county was wet as 

to the sale of (4%) per sent beer Precinct 2 and the 

City of Lyford, by local option elections, voted to 

prohibit the sale of four (4%) per cent beer. 

"The situation is in short that we have a precinct 

and a city in the county which are dry as to the sale 

of four (4%) per oent beer, and the county is wet as 

to fourteen (1496) per cent beer and wine. There have 
Honorable James W. Strawn, page 2 O-4466 

been no city or precinct elections to prohibit the 

sale of fourteen (14%) per cent beer and nine. 

"The law is well established in the casss showing that a county wide election oan in no instanoe 

have the effsot of legalising intoxioante in dry 

precincts or cities. These cams ars set out in 

numerous opinions handed down by you and for that 

reason ars not pointed out. However, in all of those 

oases there has never been a situation, in so far as I 

am able to determine, whore the question of various 

degrees of wetness wsre involved--it was just a question 

of whether the subdivision was net or dry. 

"You will notice in this instance that the 

preoinot and oity in question are not dry as to 

fourteen (14%) per cent beer and wine sinae that 

issue and the issue on prohibiting all alcoholio 

beverages have never been voted on by them as units. 

It would therefore seem that the only question involved is whether or not said subdivisions may sell 

beer or four (4%) per sent and under, because it 

seems alear that they oan sell beer and wine containing alaohol between four (4%) and fourteen (14%) per 

cent. After considering the question very saricurly 

I am inolined to the view that the status of said 

subdivisions ae to four (4%) per cent beer has no 

effect at this time because the entire county is 

wet a8 to fcurteen (14%) per cent beverages. At 

any time in the future when the county was wet ae 

to only four (4) per cent beer, then the status would 

be material and they would be dry as to the four (4%) 

per cent beer. But, under the present oondition, the 

status on four (4%) per cent bser is one whioh is not 

to be oonsidered at this time. 

"The argument oan be advanced that these subdivisions are dry ae to four (4%) per cent beer 

and that no vote by the oounty, a6 a whole, ban in 

any way have the effect of legaliring the eale of 

light beers in said subdivision. This argument i8 

sound and must be aooe 

statue on the four (4% P 

ted ie the question 81) to the 

per sent issue Is considered 

material. 

"I am inclined to think that said subdivieion6 

are wst for the sale of beer and wine up to fourteen 

(14%) per oent and that they will remain so until suoh 

time as they vote for prohibiting the sale of beer 

and wine not to exoeed fourteen (14%) per oout." 
Honorable James W. Strawn. page 3 O-4466 

Ry virtue of the Texas Liquor Control Act (Article 868-32, 

Vernon's Annotated Penal Code) any county in the State, justice precinct, 

or any incorporated city or town, in compliance with said Act, may hold 

a local option election to determine whether or not the sale of liquors 

shall be prohibited or legalited in such county, justice precinct, or 

incorporated city or town. 

For the purposes of this.opinion, where you have referred tc 

"Precinct 2" and the city of Lyford, we assume that you refer to a 

justice precinct and an incorporated tomn. 

Prcm the facts stated in your letter, as quoted above, it 

is apparent that in 1941 by local option election the sale of beer not 

containing alcohol in excess of four per oentum by weight was prohibited. 

Therefore, it naturally followed that all alcoholic beverages mentioned 

in the Texas Liquor Control Act could not be legally sold. However, in 

1939, the county as a whole, by local option legalised the sale of beer 

which did not contain alcohol in excess of four per centum by weight. 

During the time the sale of beer not containing alcohol in excess of 

four per centum by weight was legalized by a looal option eleotion, the 

above mentioned justice precinct and the City of Lyford prohibited the 

sale of such boor by a local option election and under the facts stated, 

said precinct or city, as such, has not changed their status, 

Vnder the facts stated, in 1942, the~oounty as a'whols legalized the sale of malt and vinous beverages not containing aioohol in 

excess of fourteen per centum by volume by local option election. Although the ccuntyas awhole by virtue of said election was "met" with 

reference to the sale of malt and vinous beverages not containing aloahol 

in oxcoss of fourteen per aentum by volume the status of the precinct 

and city above mentioned remained the same as established by the last 

local option election held in such precinct and city. By virtue of the 

last local option election hold in said precinct and oity, each was 

"dry" as to all alcoholic beverages mentioned in the Texas Liquor Control 

Act. 

We think that it is well established that the status of the 

above mentioned precinct and city mill remain dry as established by 

the last looal option election in each, until the status of each is 

changed by a local option election. The fact that the county as a 

whole has legalieed the sale of malt and vinous beverages not containing alcohol in excess of fourteen per centum by volume does not alter 

cr change the status of the precinct and city heretofore mentioned. 

We think the conclusion reaohed herein is supported by the 

following cases: Talley v. Binsan, 96 S. W. (Zd) 94; Rockholt v. 

State, 126 S. W. (2d) 4881 Coker v. Kmoicik, 87 Si W. (Zd) 1076, and 

Iicuohins v. Plainos, 110 S. W. (2d) 549. Jackson V. State, 118 S. 'N. 

(2d) 313. 
Eonorable James W. Strawn, page 4 O-4466 

are 

Trustbe that the foregoing fully answem your inq,uiry, WC 

Yours very truly 

ATTORNEY G%;i%RAI. OF TEXAS 

Py s/Ardell Williams 

Ardell. Williams 

Asaj.stant 

Approved Opinior: Committee By MB Chairman 

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