Honorable Bert Ford, page 3 (o-4440)

consideration

andthat.therefore

it is sufficient

to confine

ourselveshere to a short oondensation of this case. The faots in substance were these% John Plain08end Save Plainos

were 6ngagedin the business of selling

vinous and malt beverages

confiaining

alcohol in excessof one-half of one perosntby volume in a part of the City of Houston that on September

15, 1912 was a separate

municipality

known as the City of HoustonHeights. On said last named date at a valid local optionsleotion the qualified

voters of the City of HoustonHeightsadoptedlocal optionand prohibited the sale of liquor

within said territory. On February20, 1918 the peopleof HoustonHeights voted to dissolvesaidmunicipality 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 electioninand for the City of &u&on. The area which was formerly the City of Houston Heightsis 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 causenasr *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 beganwhen, upon the affidavit

of otis 0. H. Houohins,

the Honorable

Rlllism

McGraw, then the A%ttornay

Generalof Texas, filed suit in the District Cou& of Harris Couiity,

Texas againstJohn and Save Plainosto enjointhcPn 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 grantedthe injunction &s prayedfor 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 SupremeCourt of Texas granted

a writ of arror,and on kvember 24, 1937 handed down its opinion, writtenby JusticeCrits,reversing the judement

of the Court of Civil Appealsand affirming the judgment

of ths trial court. The rules laid dew inthis opinionby the SupremeCourt are substantiallyto the following sffeat;the language is mostly from the syllabi, but for the sake of brevity,

it is not quoteddirectly.Eonorpbls Bert Ford, page 4 (0-4~)

1. Hhere City of h&on Heights votedto beoonze

a dry 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 optionelection, by 1933 and 1935 amendments (citing Texas Constitution,

Arts. 666-l et seq. and 667-let 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 amendedin 1891, 1919 and 1933). 3. Where power is givenby 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 statebecamedry 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 oitiesem not ordinarily olassed

es pol- $ticalsubdivisions of aounties,

the amas of justi- preoincts, towns, and citiesem includedin 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 evidentgoverning 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 remainsdry with right to becamewet 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-let seq, and 667-let seq.)end, where oity has ceasedto exist as a municipaloorporation, it stillexists for purposeof holdinglocal optionelection to make ama thereof

wet either as respects all intoxicating

liquorsor only as respects

mine and beer. (Citing Vernon's

Texas Penal Code 1936,Arts. 666-let 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 opiniones printedin the reports._ .-c

Honorable Bert Ford, page 5 (o-4440)

You apI)

advisedthat in accordance with the Constitution and the Statutes

of this Stats as expounded bythe SupremeCourt 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 formerCity 00 ldrgnolia Park, a part nor of the City of fbuston, is a dry area, and 'tillso remainunlessand until the qualPfied voters of suoh arm et e local optionelection held for suoh purpose vote in favor of the sale of alooholio beverages

within one of the clessifioations

permitted

by law.
'Re trustthat this satisfaotorily auswers

your inquiry. Yery trulyyours ATTORWEY

GEXERU OF TEXAS

_ By' s/Rob% F. Cherry RobertF. c2ls-y Assistanf /DPFiOVEDAPR

8, 1942 s/Grover Sellers FIRSTASSISWEC **ATTQRWSY**GENERAL

Apprtid: OpinitiIi Co&ittee By:. ?m f2w.-

.._.