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 containaloohol in 8x0886of 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 opinionconcemlng the abovematter, reada in part as follower

"Citizens

of a particular

justice precinct

or tm or oity of my countyare interested In call- an election under Article 

### 666,

Seotlone32, 

### 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 purposeof~detelmining whether 6r not the eale of%eer
that'aoes not containaloohol In em&e of four 

### (45) per centumby weight',shall be legalIre in such polltioal 

### eubaivislon.

"Freeetone

County is a dry area, having prohibited the sale of 'beerthat does not containaloohol in exdese of four ,(4$)

per oentumby weight'on Deoember21, 1940, by BP election

called for that purpose. *Question: Does 9. B. 117, Chapter 325, page 

### 509, Acte of the 48th Legislature, authorize

an eleotionin a juatiae pmdnot or inOorp022eea turn or city located within the limitsof a dry oounty for the,purpoee of aetemlnlng whether or not the sale of 'beerthat doee not containalcohol in exoeeaof four 

### (4%) per centmu by weight' shallbe 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 citieswherein 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 takingeffectof Section 20, Artiole XVX of the Constitdion of Texas, it shall continue to be unlawfulto manufacture,

sell, barter or exchangein any such county, justloe'a

precinct

or incorporated

town or city, any spiritUWB) 

### vinoua or malt liquors or medicated

bitter8capable

### of produoing

intoxication

or any other lntoxicante whatsoever, fbr beverage

purposes,

unless and until a majorityof the qualified

voters in such countyor political subdivision thereof

voting in an election held for such purposeshell determine

such to be lawful;

provided

that this subsection shallnot prohibit

the sale of alcoholio beverages

containing not more than 3.2 per cent alcohol by weight in cities, counties

or political

subdivlalona

thereofin which the qw.llffed

votershave voted to legalize suoh sale under the provisions

of Chapter 

### 116,

Acta of the Regular Sessionof 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 givenby Constitution ana means by which, '7::

mamer ln which, ft is to be exerolaed is prescribed,

suchmeans 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
e1~32 4im a

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

for the SupremeCourt of Texas, saidl
‘Prior to the adoption of section20, 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 countyvoted to prohibitthe sale of intoxicating iiquors,

it continued

to be unlawfulto 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)

103S.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 supportof this holding.

"The constitutional amendment

aet out above by express 

### words adopted this rule of law. The languageis that in any county or any political eubaivision

thereof

where the sale of intoxicating liquors had been prohibited prior to the adoption

of section20, article 

### 16, it shouldremain unlawfulto sell same (including beer) in said county or political

subdivision'until

a majorityof the quallfled voters in 

### sfda countyor political subdivision

thereof voting in an election held for such purpose shall determine it to be lawfulto 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

providedthat if local optionprevailed in the county

where he sou&t to obtain

his licenseit 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 countyhas never done, but on the contraryit had for the second time voted in favor of local option 80 far as beer x88 coucernea. It necessarily

follows that as Childress Countyhad prohibited the sale of intoxicating liquors within its boundaries prior to the adoption

of section20, article 

### 16,by virtue of subdivision (a) set out above, it was uulawfulto sell beer within any part of saia countyuntilvotere of the whole countydetermined

otherwise. Local optionwithin 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 adoptedthat the 8Bme cannotbe 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 opinionof this department

that SenateBill 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 limitsof a dry county, to determine whetheror not tie sale of beer that does not containalcohol in exoeaeof 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-