February 4. 1975

The Honorable George E. McCrea Tom Green County Attorney **301** Courthouse San Angelo, Texas 76901 Opinion No. H- 515 Re: Scope oflocal option election where dry area redistricted into wet precinct. Dear Mr. McCrea:

You have submitted aseries ofquestions having todowith local option liquor elections. Your first question is: Does the tract ofland presently in Justice Precinct No. 2, which had been in Justice Precinct No. 3prior to redistricting, retain its status as being dry for the sale of beer? <You explain that the owner ofa store ona tract of recently redistri~cted land in San Angelo wants to sell beer. Before the redistricting the tract was in Justice Precinct 3which &as dry for all purposes, but itis now in Justice Precinct 2which was, and is, wet for the sale ofbeer.

We answer your first question in the affirmative. Inthe absence ofan election changing its status, the tract remains dry even though it is now attached to awet-for-beer precinct. vouchins v. Plainos, 110S.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 ifvoters living in any part ofthe newly expanded Justice Precinct 2are authorized to apply for alocal option election, sign the petition therefor, and vote inalocal option

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

election tolegalize the sale of beer onthe tract in question.

Our answer to each ofthe above questions is “yes. ” Justice Precinct 2is anew voting unit wholly contained, we understand, within the City ofSan Angelo. At present, part ofit is wet and part dry because each part retains its previous local option status. Now, however, they compose anindivisible voting unit for liquor local option purposes, and any local option election will affect all parts alike. Article 16, section 20(b) ofthe Texas Constitution, reads inpart: The Legislature shall enact alaw or laws whereby the qualified voters ofany county, justice’s precinct or incorporated town or city, may by a majority vote ofthose voting, determine from time totime whether the sale ofintoxicating liquors,for beverage purposes shall be prohibited or legalized within the prescribed limits
. . . .(Emphasis added) InGriffin v. Tucker, 118S.W. 635 (Tex. Sup. 1909), the Texas Supreme Court in considering a different but similarly couched version ofarticle 16, section 20 ofthe Texas Constitution, said: Itimplies that the determination ofthe 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 tovote upon it from time to time; but it prescribes no rule from which the effect ofan elecl tion in one subdivision upon the right ofthe voters in another is to be determined. The framing ofthe 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 inquestion. 118S.W.at 638.

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

Article 666-32, ofthe Penal Auxiliary Laws, is the statutory provision which now governs local option elections. Itwas 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 atany time hereafter exercise the right oflocal 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 toinsure that each voter shall have the maximum possible control over the status ofthe sale ofalcoholic beverages in the area ofhis residence, it is specifically provided that the status which resulted from or is the result ofaduly called election for an incorporated city or town shall prevail as against the status which resulted from or is the result ofaduly called election ina justice precinct or county inwhich such incorporated city or town, or any part thereof, is contained: and provided, further, that the status which resulted from or is the result ofaduly called election for ajustice precinct shall prevail as against the status which resulted from or is the result ofa duly called election in an incorporated city or town inwhich such justice precinct is wholly contained or in a county inwhich such justice precinct is located. We believe this statute requires that the local option status ofa county, justice precinct, or incorporated town or city, once determined by election, cannot be changed except bya subsequent election in&e same voting unit which made the earlier determination, assuming the boundaries ofthe county, precinct, town or city remain the same. Ifa county, precinct, town or city ceases to exist after having determined its local opinion status by election, or if apart ofacounty, precinct, town or city that has

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

previously determined its local option status by election ceases to be a part thereof, or becomes apart ofadifferent unit, the area retains the local option status ofits former identity, and cannot acquire adifferent status until its occupants have an opportunity tovote on the question at the same voting unit level atwhich its status was acquired or at amore

“local” voting unit level. Thus, aportion ofa 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 inHouchins which suggests a different conclusion, but Houchins was decided under adifferent statutory framework and held no more than that adry~city could not be made into awet 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). Ithas 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 aportion ofajustice 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 alegalizing election is held onthe question of “wet-forbeer” and carries, the entire newly constituted precinct will bewet for beer. Attorney General Opinion M-335 (1969); Cf. Attorney General Opinion c-681 (1966). Ifit fails, the status of each part ofthe precinct will remain as it is at present because anegative vote in alegalizing 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 18months before alocal option election can be held. Attorney General Opinion M-991 (1971).

Your last question asks whether alocal option election may be held in conjunction with and at the same time as ageneral election, and, if SO, whether separate election officials, ballot boxes, lists and returns must be used.

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

InAttorney General Opinion O-2853 (1940), written by the Honorable Zollie C. Steakley, now Associate Justice ofthe Supreme **Court** of Texas, itwas concluded that the commissioners court ofa county might order a local option liquor election to beheld ongeneral election day, at the same time, at the same polling places and under the supervision ofthe same election officers. But itwas considered indispensable tothe integrity ofthe 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 itwould not appear necessary that separate voter lists be furnished, but that the tally and poll lists ofthe 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 ofAttorney General Opinion O-2853. SUMMARY When aportion ofajustice 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 ofTexas
LL, First Assistant

C. ROBERT%EA TH, Chairman Opinion Committee LS

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