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Honorable JamesVi.Stravm countyattorney 'NillacyCounty Raymondville,Texas
%ar Sir; Opinion No. O-4466 Re: Whet is the legal status of a politioal subdivision in a countywhen 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 requestingthe 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 countywhen 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 situationhas again arisen in this county and ,I

would like to giveyou a little of the history so you may answer this question. In 1937 all alcoholicbeverageswere prohibited in the county; in 1936 four (4%) per cent beer was legalizedwithin 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 countywas 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 thatwe have a precinct and a city in the countywhich 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 haveHonorable JamesW. 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 iswell established in the casss showing that a countywide election oan in no instanoe have the effsot of legalising intoxioante in dry precincts or cities. These cams ars set out in numerous opinionshanded down by you and for that reason ars not pointed out. However, in all of those oases therehas never been a situation, in so far as I am able to determine, whore the question of various degrees ofwetness wsre involved--itwas just a question ofwhether the subdivisionwas net or dry.

"Youwill 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 prohibitingall alcoholio beverages have never been voted on by them as units. Itwould therefore seem that the only question involved is whether or not said subdivisionsmay sell beer or four (4%) per sent and under, because it seems alear that they oan sell beer and wine containing alaoholbetween four (4%) and fourteen (14%) per cent. After consideringthe questionvery saricurly I am inolined to the view that the status of said subdivisionsae 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 futurewhen the countywas wet ae to only four (4) per cent beer, then the statuswould bematerial and they would be dry as to the four (4%) per cent beer. But,under the present oondition,the status on four (4%) per centbser is onewhioh is not to be oonsideredat this time.
"The argument oan be advanced that these subdivisions are dry ae to four (4%) per centbeer and that no vote by the oounty,a6 a whole, ban in any way have the effect of legaliringthe eale of lightbeers in said subdivision. This argument i8 sound and must be aooe statue on the four (4% Pted ie the question 81)to the per sent issue Is considered material.

"I am inclinedto think that said subdivieion6 are wst for the sale of beer and wine up to fourteen (14%) per oent and that theywill remain so until suoh time as they vote for prohibiting the sale of beer and wine not to exoeed fourteen (14%)per oout."Honorable JamesW. Strawn. page 3 O-4466

Ryvirtue of the Texas Liquor ControlAct (Article 868-32, Vernon's Annotated Penal Code) any county in the State, justice precinct, or any incorporated city or town, in compliancewith saidAct, may hold a local option election to determinewhether or not the sale of liquors shallbe prohibitedor legalited in such county, justiceprecinct, or incorporated city or town.

For the purposes of this.opinion,where you have referredtc "Precinct 2" and the city of Lyford, we assume that you refer to a justice precinct and an incorporatedtomn.

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 containingalcohol in excess of four per oentumby weightwas prohibited. Therefore, it naturally followed that all alcoholic beveragesmentioned in the Texas Liquor ControlAct could not be legally sold. However, in 1939, the countyas a whole, by local option legalisedthe sale of beer which did not containalcohol in excess of four per centum by weight. During the time the sale of beer not containingalcohol in excess of four per centumby weight was legalizedby a looal option eleotion, the abovementioned 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 ofmalt andvinous beveragesnot containingaioohol in excess of fourteenper centumby volume by local option election. Although the ccuntyas awhole by virtue of said electionwas "met"with reference to the sale of malt and vinous beverages not containingaloahol in oxcoss of fourteen per aentum by volume the status of the precinct and city abovementioned remained the same as establishedby the last local option election held in such precinct and city. Byvirtue of the last local option election hold in said precinct and oity, each was "dry" as to all alcoholicbeveragesmentioned in the Texas Liquor Control Act.
We think that it is well established that the status of the abovementioned precinct and citymill remain dry as establishedby the last looal option election in each, until the status of each is changedby a local option election. The fact that the county as a whole has legalieedthe sale ofmalt andvinous beveragesnot containing alcohol in excess of fourteen per centum by volume does not alter cr change the status of the precinct and city heretoforementioned.

We think the conclusionreaohed herein is supportedby the following cases: Talleyv. Binsan, 96 S. W. (Zd) 94; Rockholtv. State, 126 S. W. (2d) 4881 Coker v. Kmoicik, 87 Si W. (Zd) 1076, and Iicuohins

v. Plainos, 110 S. W. (2d) 549. JacksonV. State, 118 S. 'N. (2d) 313.Eonorable JamesW. 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/ArdellWilliams Ardell.

Williams Asaj.stant

Approved Opinior:

Committee By MB Chairman

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