Honorable Bert Ford, page 3 (o-4440) 

consideration andthat.therefore it is sufficient to confine ourselves here to a short oondensation of this case. 

The faots in substance were these% John Plain08 end Save 

Plainos were 6ngaged in the business of selling vinous and malt 

beverages confiaining alcohol in excess of one-half of one perosnt by 

volume in a part of the City of Houston that on September 15, 1912 was 

a separate municipality known as the City of Houston Heights. On said 

last named date at a valid local option sleotion the qualified voters 

of the City of Houston Heights adopted local option and prohibited 

the sale of liquor within said territory. On February 20, 1918 the 

people of Houston Heights voted to dissolve said municipality and 

since that time the area comprising Houston Heights has been an intbgral part of the City of Hou8ton. Since the adoption of local option 

on September 15, 1912, there had never been held a local option election in and for the territory which xas formerly the City of Houston 

Heights, legalizing the sale of alaoholio beverages and thereyhbd nbt 

been a local option election inand for the City of &u&on. The area 

which was formerly the City of Houston Heights is not oo-extensive with 

a justice's prebinat, a Commissioner*8 precinct, a city, town or county. 

Under these hots it was agreed that the sole question of law 

involved in the cause nasr 

*Is that territorywhiohras formerly the City of Houston 

Heights, and now being a part of the City of Houston, Harris 

County, Texas, a,mt or a dry area?" 

The ease in nhioh the above faots appeared began when, upon the 

affidavit of otis 0. H. Houohins, the Honorable Rlllism McGraw, then the 

A%ttornay General of Texas, filed suit in the District Cou& of Harris 

Couiity, Texas against John and Save Plainos to enjoin thcPn fran selling 

or distributing vinous or malt beverages containing aloohol in exoess of 

one-half of one per sent in the territory comprised within the area of 

what w$s onoe the City of Hous,tin Heights, in Harris County, Texas. The 

District Court granted the injunction &s prayed for by the Attomsy General; 

Plainos being unsuuooassful in an attempt to dissolve the temporary injunotion in the District Court, appealed to the Galveston County of Civil 

Appeals, which reversed the judgment of the District Court and dissolved 

the temporary injunotion. (106 S.W. (2) 745). The Supreme Court of Texas 

granted a writ of arror, and on kvember 24, 1937 handed down its opinion, 

written by Justice Crits, reversing the judement of the Court of Civil 

Appeals and affirming the judgment of ths trial court. The rules laid 

dew inthis opinion by the Supreme Court are substantiallyto the following sffeat; the language is mostly from the syllabi, but for the sake of 

brevity, it is not quoted directly. 
Eonorpbls Bert Ford, page 4 (0-4~) 

1. Hhere City of h&on Heights votedto beoonze adry 

area in 1912, end in 1918 was dissolved and annexed to mut city of 

Em&on, its area remained dry in 1919 when prohibition am&dment 

was adopted, and was saved as a dry ama, nith right to bsoane wet 

by l&al option election, by 1933 and 1935 amendments (citing Texas 

Constitution, Arts. 666-l et seq. and 667-l et seq. of Vernon's 

Annotated Penal Code). 

2. The dry city of Houston Heights did not vote to Broome 

e wet area by voting to ix0oms.a pert of tha wet city of Houston 

(ottlng Constitution, Art. 18, Sec. 20, es amended in 1891, 1919 and 

1933). 

3. Where power is given by Constitution, and means by which, 

or manner in which it is to be exercised is pmsoribed, suoh Iwane or 

manner is exclusive. 

4. Under local option amendment of 1933, the area of any county, 

justice's pmainct, town, or city that was dry when entire state became dry 

under prohibition, remained dry with the privilege of beoaming wet, as 

respects light liquors, by so voting et an election held in and for the 

exact ama that had originally voted dry. (Citing.1933 amendment to Art. 

16, Sac. 20, Constitution of Texas.) 

5. Though towns and oities em not ordinarily olassed es pol- 

$tical subdivisions of aounties, the amas of justi- preoincts, towns, 

and cities em included in the pip-ase "p9y political eu%dIvision~~thsreof" 

in local option amendment. (Citing the 1933 amendmeiit tc Art. 16, Sec. 

26 of the Constitution). hd, courts will not follow the letter~of the 

&,atuj&s~~here to do so would violate its purpose and lead to a oonolusion contrary to evident governing intent. 

6. 'Under 1935 amendment of intoxio&ting liquor law, the area 

of any oounty, justioe's pmoinot, city or tom that wana dry when amendment went into affect remains dry with right to became wet by so voting 

at election under present local option statutes held in 8~ area that 

origtielly voted dry (citing 1936 amendment to Art. 18, Sec. 20 of the 

Constitution and Vernon's Texas Penal Code, 1938, $rts. 666-l et seq, and 

667-l et seq.) end, where oity has ceased to exist as a municipal oorporation, it still exists for purpose of holding local option election to 

make ama thereof wet either as respects all intoxicating liquors or only 

as respects mine and beer. (Citing Vernon's Texas Penal Code 1936, Arts. 

666-l et seq. and 967-l et seq. and the X936 amendment of Art. 16, Sec. 20 

of the Constitutiona). -~, 

The court cites many authorities in addition to those herainabove oited supporting the prinoiple laid down in arch of the above paragraphs. &id citations may be found upon refemncs to this opinion es 

printed in the reports. 
_ .-c 

Honorable Bert Ford, page 5 (o-4440) 

You apI) advised that in accordance with the Constitution 

and the Statutes of this Stats as expounded bythe Supreme Court in 

the ease above oited and digested and the authorities thorn oited, 

it is the opinion of this department'that the area 16cated within 

the former City 00 ldrgnolia Park, a part nor of the City of fbuston, 

is a dry area, and 'till so remain unless and until the qualPfied 

voters of suoh arm et e local option election held for suoh purpose 

vote in favor of the sale of alooholio beverages within one of the 

clessifioations permitted by law. 

'Re trust that this satisfaotorily auswers your inquiry. 

Yery truly yours 

ATTORWEY GEXERU OF TEXAS 

_ 

By' 

s/Rob% F. Cherry 

Robert F. c2ls-y 

Assistanf 

/DPFiOVEDAPR 8, 1942 

s/Grover Sellers 

FIRSTASSISWEC 

ATTQRWSY GENERAL 

Apprtid: OpinitiIi Co&ittee 

By:. ?m f2w.- 

. ._.