county Attorney 

Free&one County 

Fairf leld, Texas 

Dear Sir: ,opinion Bo. O-5487 

Rei xmal option eleotim -- May an 

eleo~ion, to determine whether 

or not the eale of beer that doee 

not contain aloohol in 8x0886 of 

4% by weight ehallbe legalized, 

be held ln a justice preolnct, 

inoorporatea town or city looatea 

within a dry county? 

Your lettar, Uatd July 27, 1943, requesting an opinion concemlng 

the above matter, reada in part as follower 

"Citizens of a particular justice precinct or tm 

or oity of my county are interested In call- an election 

under Article 666, Seotlone 32, 33, 35, 37, 38, 39 and 40, 

Vernon'e Anuotsted Penal Code, (LB amenfLed by 9. B. 117, 

Chapter 325, page 509, Acts of the 48th Legielature, for 

the purpose of~detelmining whether 6r not the eale of%eer 

that'aoes not contain aloohol In em&e of four (45) per 

centum by weight', shall be legalIre in such polltioal 

eubaivislon. 

"Freeetone County is a dry area, having prohibited 

the sale of 'beer that does not contain aloohol in exdese 

of four ,(4$) per oentum by weight' on Deoember 21, 1940, 

by BP election called for that purpose. 

*Question: Does 9. B. 117, Chapter 325, page 509, 

Acte of the 48th Legislature, authorize an eleotion in a 

juatiae pmdnot or inOorp022eea turn or city located 

within the limits of a dry oounty for the,purpoee of 

aetemlnlng whether or not the sale of 'beer that doee 

not contain alcohol in exoeea of four (4%) per centmu 

by weight' shall be legalize&? 
Honorable Bowlen Bond, page 2 (0-5487) 

Artiele XVI, Section 206, Conetltuticm of the State of Texasr 

"In all counties, justice'8 precincts or incorporated 

towns or cities wherein the sale of intoxicating liquors 

had been prohibited by local option elections held un&er 

the laws of the State of Texas and in foroe at the time of 

the taking effect of Section 20, Artiole XVX of the Constitdion of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange in any such county, 

justloe'a precinct or incorporated town or city, any spiritUWB) vinoua or malt liquors or medicated bitter8 capable of 

produoing intoxication or any other lntoxicante whatsoever, 

fbr beverage purposes, unless and until a majority of the 

qualified voters in such county or political subdivision 

thereof voting in an election held for such purpose shell 

determine such to be lawful; provided that this subsection 

shall not prohibit the sale of alcoholio beverages containing not more than 3.2 per cent alcohol by weight in cities, 

counties or political subdivlalona thereof in which the 

qw.llffed voters have voted to legalize suoh sale under the 

provisions of Chapter 116, Acta of the Regular Session of 

the 43-a Legislature." 

In the ca8e of Houchine v. Plednos, 110 S.W.2d 549, the Supreme 

Court of Texas held that where power is given by Constitution ana means by 

which, '7:: mamer ln which, ft is to be exerolaed is prescribed, such means 

ana wner is exIdti8ive. 

~z Opinion NO. 0-2114, this aepartauent held, among other things, 

shoula a oosnty as a whole vote for prohibiting the sale of all alcoholic 

-xTeragee > %e '. ~zounty would be dry regarding all alooholic beverages, ena the 

varfo~s pr-e>ticts WOUM have no authority to call and hold any local option 

e 1~32 4 im a 

L- the case of Walling v. King, 67 S.W.2d 1074, Judge German, 

apeaking for the Supreme Court of Texas, saidl 

‘Prior to the adoption of section 20, article 16, it 

haad hem the law of this state for many years that when a 

ccurrty, justice's precinct, or ot$er political subdivision 

of a county voted to prohibit the sale of intoxicating 

iiquors, it continued to be unlawful to sell such liquors 

within the prohibited territory until the voters of the 

identical territory which had adopted prohibition voted 

.to repeal it. In Ex Parte Pollard, 51Tex. Cr. R. 488, 
Honorable Bowlen Bond, page 3 (O-5487) 

103 S.U. 878, Juage Davidson, epeaking for the Court of 

Criminal Appeals, said: 'Wherever a local optlou law 

is once legally put into operation In a given territory, 

it must remain in force until it has been voted out by 

,the voters of the territory where such law was originally 

vftalized. (

"Several cases are cited in support of this holding. 

"The constitutional amendment aet out above by express 

words adopted this rule of law. The language is that in 

any county or any political eubaivision thereof where the 

sale of intoxicating liquors had been prohibited prior to 

the adoption of section 20, article 16, it should remain 

unlawful to sell same (including beer) in said county or 

political subdivision 'until a majority of the quallfled 

voters in sfda county or political subdivision thereof 

voting in an election held for such purpose shall determine it to be lawful to manufacture, sell, barter and exchange in said county or political aubdivleion thereof 

vinous or malt liquors containing not more than three and 

two-tenths per cent (3.2s) alcoholic coutent by weight'. 

"The very couatitutional amendment by which appellant 

is accorded his right to a license expressly provided that 

if local option prevailed in the county where he sou&t 

to obtain his license it was necessary for the voters of 

that county to authorize the sale of the 3.2 per oent~beer 

before he could obtain a license. This the county has never 

done, but on the contrary it had for the second time voted 

in favor of local option 80 far as beer x88 coucernea. It 

necessarily follows that as Childress County had prohibited 

the sale of intoxicating liquors within its boundaries prior 

to the adoption of section 20, article 16, by virtue of subdivision (a) set out above, it was uulawful to sell beer 

within any part of saia county untilvotere of the whole 

county determined otherwise. Local option within the county 

as a whole could. not be repealed by piecemeal." 

Tlze law is well settled In this State that where local option within 

the ec.zty aa a whole has been adopted that the 8Bme cannot be repealed except 

by E comtywlde election. We *mume from the facts stated in your letter that 

Freestme County is ci dry county. 

In view of the authorities above cited, it in the opinion of this 

department that Senate Bill 117 does not, an8 could not, authorize au election 
-.. 

Honorable Bowlen Bond, page 4 (O-5487) 

to be held in a justice precinct, Incorporated town or city loaated within 

the limits of a dry county, to determine whether or not tie sale of beer 

that does not contain alcohol in exoeae of 4$ by wei&t ehallbe legalized. 

Yours very truly 

/a/Jeeee Owene 

BY 

Jesse Owena 

Aseistent 

JO:db 

APPROVED AUG X, 1943 

/s/Grover SelLx:: 

APPROVED 

0PmIOm 

C-