February 4. 1975 

The Honorable George E. McCrea 

Tom Green County Attorney 

301 Courthouse 

San Angelo, Texas 76901 

Opinion No. H- 515 

Re: Scope of local option 

election where dry area 

redistricted into wet 

precinct. 

Dear Mr. McCrea: 

You have submitted a series of questions having to do with local 

option liquor elections. Your first question is: 

Does the tract of land presently in Justice 

Precinct No. 2, which had been in Justice 

Precinct No. 3 prior to redistricting, retain its status as being dry for the sale of 

beer? 

<You explain that the owner of a store on a tract of recently redistri~cted 

land in San Angelo wants to sell beer. Before the redistricting the tract 

was in Justice Precinct 3 which &as dry for all purposes, but it is now in 

Justice Precinct 2 which was, and is, wet for the sale of beer. 

We answer your first question in the affirmative. In the absence 

of an election changing its status, the tract remains dry even though it is 

now attached to a wet-for-beer precinct. vouchins v. Plainos, 110 S. W. 2d 

549 (Tex. Sup. 1937); Goodie Goodie Sandwich,~ II nc. V. State, 138 S. W. 2d 

906 (Tex. Civ. App. --Dallas 1940, writ dism. jdmt. co=.); Attorney 

General Opinion H-97 (1973). 

Your next three questions ask if voters living in any part of the 

newly expanded Justice Precinct 2 are authorized to apply for a local 

option election, sign the petition therefor, and vote in a local option 

p. 2322 
. . 

The Honorable George E. McCrea page 2 (H-515) 

election to legalize the sale of beer on the tract in question. 

Our answer to each of the above questions is “yes. ” Justice 

Precinct 2 is a new voting unit wholly contained, we understand, within 

the City of San Angelo. At present, part of it is wet and part dry because 

each part retains its previous local option status. Now, however, they 

compose an indivisible voting unit for liquor local option purposes, and 

any local option election will affect all parts alike. Article 16, section 

20(b) of the Texas Constitution, reads in part: 

The Legislature shall enact a law or laws 

whereby the qualified voters of any county, justice’s 

precinct or incorporated town or city, may by a 

majority vote of those voting, determine from time 

to time whether the sale of intoxicating liquors,for 

beverage purposes shall be prohibited or legalized 

within the prescribed limits . . . . (Emphasis added) 

In Griffin v. Tucker, 118 S. W. 635 (Tex. Sup. 1909), the Texas 

Supreme Court in considering a different but similarly couched version 

of article 16, section 20 of the Texas Constitution, said: 

It implies that the determination of the question of 

prohibition in a county or a subdivision once made 

is not to be perpetually binding, and that provision 

shall be made whereby the voters therein shall have 

opportunity to vote upon it from time to time; but it 

prescribes no rule from which the effect of an elecl 

tion in one subdivision upon the right of the voters 

in another is to be determined. The framing of the 

law so that the right intended to be secured to the 

voters in the localities may be exercised is expressly 

committed to the Legislature, and we must look to the 

statutes in order to determine as to the validity of 

such elections as that in question. 118 S. W. at 638. 

p. 2323 
The Honorable George E. McCrea page 3 (H-515) 

Article 666-32, of the Penal Auxiliary Laws, is the statutory 

provision which now governs local option elections. It was amended 

in 1973 inter alia “to determine and clarify which political subdivision 

shall prevail when there are conflicting results from local option 

elections in differing and/or over-lapping political subdivisions. ” Acts 

1973, 63rd Leg., ch. 799, p. 508. This provision was added: 

Any authorized voting unit, that is, any county, 

justice precinct, or incorporated city or town which 

has at any time heretofore exercised or may at any 

time hereafter exercise the right of local option, shall 

retain the status adopted, . . . until that status is 

changed by a subsequent local option election in the 

same authorized voting unit; provided, however, that . . . 

in order to insure that each voter shall have the maximum 

possible control over the status of the sale of alcoholic 

beverages in the area of his residence, it is specifically 

provided that the status which resulted from or is the 

result of a duly called election for an incorporated city 

or town shall prevail as against the status which resulted 

from or is the result of a duly called election in a 

justice precinct or county in which such incorporated city 

or town, or any part thereof, is contained: and provided, 

further, that the status which resulted from or is the 

result of a duly called election for a justice precinct 

shall prevail as against the status which resulted from 

or is the result of a duly called election in an incorporated 

city or town in which such justice precinct is wholly 

contained or in a county in which such justice precinct 

is located. 

We believe this statute requires that the local option status of a 

county, justice precinct, or incorporated town or city, once determined 

by election, cannot be changed except by a subsequent election in&e same 

voting unit which made the earlier determination, assuming the boundaries 

of the county, precinct, town or city remain the same. If a county, precinct, 

town or city ceases to exist after having determined its local opinion status 

by election, or if a part of a county, precinct, town or city that has 

p. 2324 
The Honorable George E. McCrea page 4 (H-515) 

previously determined its local option status by election ceases to be a 

part thereof, or becomes a part of a different unit, the area retains the 

local option status of its former identity, and cannot acquire a different 

status until its occupants have an opportunity to vote on the question at 

the same voting unit level at which its status was acquired or at a more 

“local” voting unit level. Thus, a portion of a dry precinct which was 

redistricted into another precinct could change its local option status by 

an election in the new precinct or in a city or town contained therein. 

There is dictum in Houchins which suggests a different conclusion, 

but Houchins was decided under a different statutory framework and held 

no more than that a dry~ city could not be made into a wet city by simply 

dissolving the city and transferring the territory into another city that 

was wet. Warren v. Moore, 337 S. W. 2d 395 (Tex. Civ. App. --Amarillo 

1960, writ dismd.); Myers v. Martinez, 320 S. W. 2d 862 (Tex. Civ. App. 

--San Antonio, 1959, writ ref., n. r. e., 326 S. W. 2d 171). It has also been 

held that since the Constitution limits local option elections to counties, 

justice precincts, and incorporated towns and cities, an election held in 

only a portion of a justice precinct was void. Patton v. Texas Liquor 

Control Board, 293 S. W. 2d 99 (Tex. Civ. App. --Austin 1956, writ ref., 

n.r.e.). 

Thus, if a legalizing election is held on the question of “wet-forbeer” and carries, the entire newly constituted precinct will be wet for 

beer. Attorney General Opinion M-335 (1969); Cf. Attorney General 

Opinion c-681 (1966). If it fails, the status of each part of the precinct 

will remain as it is at present because a negative vote in a legalizing 

election has no prohibitory effect. Attorney General Opinions H-130 

(1973), H-59 (1973). Note, however, that article 666-40b requires newly 

created political subdivisions to be in existence at least 18 months before 

a local option election can be held. Attorney General Opinion M-991 (1971). 

Your last question asks whether a local option election may be held 

in conjunction with and at the same time as a general election, and, if SO, 

whether separate election officials, ballot boxes, lists and returns must 

be used. 

p. 2325 
The Honorable George E. McCrea page 5 (H-515) 

In Attorney General Opinion O-2853 (1940), written by the Honorable 

Zollie C. Steakley, now Associate Justice of the Supreme Court of Texas, 

it was concluded that the commissioners court of a county might order a 

local option liquor election to be held on general election day, at the same 

time, at the same polling places and under the supervision of the same 

election officers. But it was considered indispensable to the integrity 

of the ballot that different boxes be used for the two elections to receive 

those ballots to be locked and sealed. On the matter of “lists” the opinion 

said it would not appear necessary that separate voter lists be furnished, 

but that the tally and poll lists of the votes cast in each election, and the 

returns of each, would necessarily have to be separate and distinct. 

Attorney General Opinion C-162 (1963) could be interpreted as 

suggesting a different result in some respects; however, the statute on 

which that opinion was based has been repealed, and thus we see no 

reason to question the conclusion of Attorney General Opinion O-2853. 

SUMMARY 

When a portion of a justice precinct is 

redistricted it does not lose its local option 

status. Its status may be changed in an election held in the new precinct or in a city or 

town contained therein. 

ery truly yours, 

Attorney General of Texas 

LL, First Assistant 

C. ROBERT%EA TH, Chairman 

Opinion Committee 

LS 

p. 2326