THEATTORTYGENERAL 

PRICE DANIEL 

AUSTIN II. TEXAS 

ATTORNEY GENERAL 

July 13, 1949 

Hon. John Lawhon 

Administrator 

@pInion No. V-854 

Texas Liquor Control Board Re: 

Austin, Texas 

Validity of a local option 

election in which the proposition submitted was: "For 

(or against) prohibiting the 

sale of malt and vinous beverages not exceeding 14% by 

weight." 

Dear Sir: 

Your request for an opinion is in part: 

"There is one county in this State which 

has legalized the sale of malt and vinous beverages not exceeding 148 by weight. An election was called in this county with the following propositions submitted to the voters 'For 

prohibiting the sale of malt and vinous beverages not exceeding 14% bg'weight' and 'Against 

prohibiting the sale of malt and vinous beverages not exceeding 1476 by weight.' 

"I will appreciate your valued opinion as 

to wether an election submitting the proposition as above stated would be valid.! 

Article 666~Sec. 40, V.P.C., provides specifically the 

issues which will be submitted in any local option selection. One 

such issue, as set out in the statute, reads: 

"(b) . 'For legalizing the sale of malt and 

vinous beverages that do not contain alcohol in 

excess of fourteen ~(14%) percenturn by volume' 

and lAgainst'legaliilng the sale of malt and 

vinous beverages that do not contain alcohol'in 

ntum bv volm'" 

Article 666-4Oa, V.P.C., provides, inpart: 

"At any time within thirty (30) days after 

the result of any local option election held pur- 
Hon. John Iawhon, page 2 V-854 

suant to the provisions of the Texas Liquor Control Act has been declared, any qualified voter 

of the county, justice precinct or incorporated 

town or city of such county in which such election has been held, may contest the said election 

in the District Court of the County in which such 

election has been held, which shall have -inal 

and exclusive jurisdiction of all suits to c( mtest 

such election. . . . and said court shall have 

jurisdiction to try and determine all matters connected with said election, including the petition 

of such election and all Proceedings and'orders 

relating thereto, embracing final count and declaration and publication of the result putting local 

option into effect. and it shall have authoritv 

lions relating to the legality 

,alidity of said election . . . and if it shall 

to determine ql 

and v 

appear from the evidence that such irregularities 

existed in bringing about said election or in 

holding same, as to render the true result of the 

election imnossible to be arrived at. or verv 

doubtful of ascertaining, the court shall adjudge 

such election to be void, and shall order the 

proper officer to order another election to be 

held, and shall cause a certified copy of such 

judgment and order of the court to be delivered 

to such officer upon whom is devolved by law the 

duty of ordering such election. It is further 

provided that all such cases shall have precedence in the District Court and appellate courts, 

and that the result of such contest shall finally 

settle all questions relating to the validity of 

said election and it shall not be permissible to 

again call the legality of said election in ouestion in any other suit or proceeding; and provided 

further, that if no contest of said election is 

filed and prosecuted in the manner and within the 

time provided above, it shall be conclusively presumed that said election as held and the result 

thereof decMred, are in all respects valid and 

binding upon all courts; . . . . "(Emphasis added) 

This opinion deals solely with the question of irregularities insofar as they appear in the issues submitted and we do 

not pass upon any other matters pertaining to the election. 

It is the uniform holding of our courts that an election 

contest is the exclusive remedy of a citizen who feels aggrieved, 

or harmed, by the results of an election. The invalidity, if any, 

of an election must be set up in a contest. The reason is that 
Hon. John Lawhon, page 3 v-a54 

the Legislature, having set up this special procedure for the 

adjudication of such issues, that procedure is exclusive and no 

other remedy is available. 

The general rule is announced in 16 Tex. Jur. 142, 

Elections, Sec. 115: 

"The Constitution and statute have conferred~upon the Court's jurisdiction over election contests, and have provided a special procedure by which contests may be tried. This 

procedure is designed to be final and exclusive 

and the Courts have no authority to adjudicate 

cases which come within its purview otherwise 

than in the manner specified." 

In Crawford v. 

19381, 

Maule, 114 S.W. 2d 696, (Tex. Civ. App. 

suit was brought seeking to have the sheriff and all other 

officers whose duty it was to enforce local options enjoined from 

enforcing an order declaring the results of a local option election. The court denied the injunction on the grounds that the 

mode of contesting or determining the validity of an election was 

prescribed by statute and that that particular mode alone could 

be resorted to. 

Agairi, in Tallv v. Benson 96 S.W. 2d 94, (Tex. Civ. 

App. 19x6), plaintiff sought a mandamus requiring the proper 

officers to grant him a permit alleging that a prior local option 

law was void because of certain irregularities. The Court said, 

after discussing other phases of the case: 

"The proper method of attack upon such an 

election was by a contest as authorized by the 

statutes. Such method of attack upon elections 

has been held to be exclusive and final. . . . 

The method sought herein was a collateral attack 

upon such election and cannot therefore be properly entertained. That being true, the election 

of January 1936 which at most was only voidable, 

and subject to be set aside, if at all, only by 

a proper contest thereof; established justice 

precinct No. 1 as a dry area." 

The Court refused to grant a mandamus, and the opinion is positive 

authority for the proposition that an attack upon an election because of existing irregularities can be heard only in a contest 

proceeding. 

Article 666-40 has been the subject of construction by 

our courts many times. In election contests the courts have de- 
Hon. John Lawhon, page 4 V-854 

clared _-. that irregularities in the issues appearing in the order 

calling the election and irregularities appearing in the same 

issues placed upon the ballot void the elections. 

In Hutson v. 

1946), an election con 

Smith, 191 S.W. 2d 779, (Tex. Civ. App. 

test, the order calling the local option 

election did not state the issue to be voted on as is specifically required by Art. 666-40. The Court held that: 

II 

e . . the Commissioners' Court mst itself 

issue the order for a local option election in 

the manner and form which the Legislature has 

made mandatory. . . There is no hint in the 

record that the defective order had any effect 

upon the result of the election. But we are 

constrained to hold that the order did comply 

with the statute, that the statute was mandatory, 

that consequently the order was void, and that 

the election held in response to a void order 

was itself void." (Emphasis added) 

Again, in w v. w, 117 S.W. 2d 560, (Tex. Civ. 

APP. 1938), in local option election contest wherein the ballot 

did not contain the issue as set out by the statute, the Court 

held: 

"The Legislature having prescribed the form 

of the issues to be submitted under the conditions which obtained in said subdivision of 

Archer County, it was obligatory upon the part 

of the Commissioners Court of said County to submit the issue thus specifically prescribed. 

"We are reluctant to hold invalid such an 

election as this, and thus set aside the will 

of a majority of the qualified voters who participated in the election, but under the authorities, it is our manifest duty to do so, 

even though we are convinced that the results 

of the election would not have been different 

had the proper ballot been used. . . . . DJ' 

The above authorities in no way alter the general rule 

of prohibiting a collateral attack upon the results of an election. There can be no doubt but that Art. 666-40a places exclusive authority in the District Courts to determine all matters 

connected with the election including the petitions, orders, and 

ballots pertaining thereto. Irregularities in holding a local 

option election likewise shall be adjudged only by legal contest. 

It is significant that said statute provides that such a contest 
Hon. John Lawhon, page 5 V-854 

be brought within 

clared and upon a 

thirty days after the results have been defailure thereof the results of the election as 

a matter of law are presumed to be valid and binding on all 

courts. Blaine v. State, 139 S.W. 2d 792 (Tex. Crim. 1940). 

Duran v. State, 158 S.W. 2d 720 (Tex. Grim. 1943); and Attokey 

General's opinion V-297. 

The courts have held in instances where an election 

has been called without authority that such election is void ab 

initio. 

1949) ; 

City of Austin v. Thompson, 219 S.W. 2d 57 (Tex. Sup. 

City of Dallas v. Dallas Consolidated Electric Street 

Railway Cornpang, 105 Tex. 337, 148 S.W. 292 (1912). These cases 

deal with the right and power for the particular election to be 

held. Such a circumstance Is clearly distinguishable from the 

situation present here. The errors and irreqularities raised in 

the present question are those specifically mentioned in Article 

666-4Oa, V.P~.C., and it is obviously contemplated by said Article 

that irregularities of such a nature should be determined by an 

election contest, and are not of sufficient gravity to void the 

election ab initio. 

In the light of the above authorities it follows that 

in the absence of an election called without authority or a 

proper election contest, the election must be presumed to be 

valid and the results of said election must be given full force 

and effect. 

SUMMARY 

The insertion of the word "weight" for 

"volume" and the ommission of I'alcohol" in a 

local option election are irregularities which 

can be challenged only in an election contest 

pursuant to the statutory requirements of 

Article 666-4Oa, V.P.C. Crawford v. Maple, 

114 S.W. 2d 696 (1938); Tally v. Benson, 96 

S.W. 2d 94 (1936). An election not having 

been contested within the statutory time will 

conclusively be presumed to be valid and binding on all courts. City of Austin v. Thompson, 

219 S.W. 2d 57 (Tex. Sup. 1949); City of Dallas 

v. Consolidated Electric Street Railway Cornpane, 

105 Tex. 337, 148 S.W. 292 (1912). 
Hon. John Lawhon, page 6 v-854 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s,f Joe H. Reynolds 

Joe R.~Reynolds 

Assistant 

JHR:rt:pwb 

APPROVED: 

s/Price Daniel 

ATTORNEY GENERAL