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THE ktTl.ORNEY GENERAL OF TEXAS

AUSTIN. **TEXAS** 78711 **WAGGONER CARTR**  **.4Tr ”** **YXEx (IBSERAL**  April 12, 1966

Honorable John Lawhon Opinion NO. c-658
Re: When the commissioners court has enlarged a wet justice precinctby adding additional territory to same which was in a dry precinct,whether the territorywithin the originalwet precinct remains wet, and related Dear Mr. Lawhon: questions.
Your letterrequesting 8.nopinion of this office reads as follows: County and DistrictAttorney Denton County Denton, Texas

"Prior to 1935 all Denton County was dry. In September of 1935, Justice Precinct Two 1n Denton County held a local option electlon. The area voted to allow the sale of beer.

. . . Since the Justice Precinct election of September, 1935, there have been no other elections held concerning local option for liquor In the area In question. In 1948, the Commlasloners Court of Denton County, reduced the number of Justiceprecincts from 8 to 5. As a result the territorialboundaries of old Justice Precinct Two were enlarged in lg@ to Include old Justice Precinct Two plus additional territory. Recently, a Denton County citizen living wlthln the boundaries of old Justice Precinct Two applied for an application to obtain a beer license. Questions: "1. Is the territorywithin old Justice Precinct Two now a wet area? "2. If yes, does the wet area lnelude only the territoryboundaries of old Justice Precinct Two?"

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Honorable John Lawhon, Page 2 (C-658)

The Court in Bullington v. Lear, 230 S.W.2d 290, 292 (Tex.Clv.App.1950,no history), announced the followlng rule:

It has been held that It Is beyond the power of the commissioners court to so change the boundary of a justiceprecinct as to repeal a law passedby a local option election In favor of or against prohibition. Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d 549; Jackson v. State, 

### 135Tex.Cr.R. 140, 118 S.W.2d 313. "This electionwas a clear, valid declaration of the will of the voters as to which under the Constitutionand statutes they had a right to authorltlvelyexpress theirwill. Ry virtue of this election,Justice PrecinctNo. 2 of Crane County as it existed on August 3, 1949, the date the petitionwas filed with the County Clerk and on August 8, 1949, the date the Commissioners Court ordered the election,became dry." The Court In the case of Powell v. Smith, 90 S.W.2d 942, 944 (Tex.Clv.App.1936,no history), announced the following rule:

1, 'Wherelocal optionwas adopted In any glcen locality,by the majority of the voters therein, It will remain In force until the qualifiedvoters of such particular subdivisiondecide otherwise In an election held for that purpose. . . .I' The Texas Supreme Court in Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d 549 (1937),announced the rule that an orlglnal territory that was dry remained dry until therewas an election In the same territoryto vote on the same question. The Court stated at page 555:

I, that'whlie

As to the case at bar, we hold It Is true that the City of Houston Heights has long since ceased to exist a8 a municipal corporation,still It yet exists for the purpose of holding a local option election to vote on the question of making It lawful to sell Intoxicating liquors within the area originallyvoted dry,"

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Honorable John Lawhon, Page 3 (C-658)

Based upon the above authorities, It la the opinion of this office that the answer to the two questions shouldbe as follows:

1. The original territorywithin the old Justice Precinct Two 1s stillwet for the limitedpurpose of the sale of beer for on-premises consumption. 2. The wet area Includesonly the terrltorlalboundaries of old Justice Precinct Two. Consistentwith this are Attorney General'sOplnlons Nos. O-297, O-6880 and WW-1149.

Since this office received the above opinion request, we received a telephone call from your office in which you advised us that the following additional facts would be relative In answering the opinion request:

"On August 24, 1935, the State Constltutlon legalized the sale of beer. , . . "On September 21, 1935, the electors In Justice Precinct No. 2 In a local option election had before them the following two proposltlons:

11 1 1

. For the sale of beer containingnot more than 3.2 percent (3.2%) of alcohol by weight. n'2. Against the sale of beer containingnot more than 3.2 percent b;ZLt.~f alcohol by

"The people voted for the sale of 3.2 percent beer. It was passedby the people on September 21, 1935. "Question: If the area Is wet, what percentage of alcoholmay the beer contain by weight, 3.2 percent or 4 percent?"

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In 1933, Congressmodified theVolstead Act to permit the sale of beer.
On August 26, 1933, the voters of Texas adopted an amendment to the State Constitution legalizing the sale of beer containing not more than 3.2 percent alcohol by weight In cities, countiesor political subdivisionsthereof In which the qualified voters voted to legalize the sale of beer.

In 1933, the Regular Session of the Forty-ThirdLe ture enacted House Bill No. 122, Chapter 116, Secti.on l(b7lsla-

, which provides:

"(b). Upon and after the effectivedate of thisAct (asprovided In subsections (c) and (d) of Section 28 of thisAct) In all counties In the State of Texas and In all political subdivisions thereofwherein the sale of Intoxicating liquorshad been prohibitedby local option electionheld under the laws of the State of Texas and In force at the time of taking effect of Section 20, Article 16 of the Constitutionof Texas, it shall continue to be unlawful to manufacture, sell,barter or exchange In any such county or any such political subdlvlslonof said county any vlnous or malt liquors containing In excess of one per cent (1s)alcoholic content by volume, unless and until a majority of the qualifiedvoters in said county or political subdivisionthereofvoting at an election held for such purpose shall determine It to be lawful tomanufacture, sell, barter or exchange In such county or In such political subdivisionof said county any vlnous and malt liquors containingnot more than three and two-tenthsper centum (3.2s) alcoholic contentby weight;" The election held on September 21, 1935, In Justice Precinct Two of Denton County,as describedpreviously,was apparently in accordancewith House Bill No. 122,Acts of the Forty-ThirdLegislature, 1933, and would legalize the sale of beer containingnot more than 3.2 percent alcohol by weight in Justice PrecinctTwo.

On December 5, 1933, the Twenty-FirstAmendment to the Federal Constitution,which repealed the EighteenthAmendment, became effective.

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On August 24, 1935, the voters ment of Article 16, Section 20 of the pealing State prohibition. of Texas adopted an amendState ConstitutionreHouse Bill No. 122, ,Actsof the Forty-Third Legislature, 1933, was repealedby House Bill No. 77, Acts of the FortyFourth Legislature, 1935, Second Called Session, and the relative portions of suchAct reads as follows:

"Article II, Section 1. "Manufacture,sale and distributionof beer authorized; local option; 'beer'defined. (a) The manufacture, sale and dlstrlbutionof beer containingone-half (l/2) of one per cent (1%) or more of alcohol b volume and no more than four per centum ( J$) of alcohol by weight is hereby authorized wlthln the State of Texas. "Unlessotherwiseherein specifically providedby the terms of thisAct, the manufacture, sale and distributionof beer, as hereinafterdefined, shallbe governed exclusivelyby the provisionsof Article II of this Act, Chapter 116, Acts of the Regular Session, Forty-ThirdLegislature, and all amendments thereto,are hereby repealed. "(b) It shall continue to be unlawful to manufacture, sell,barter or exchange In any county, Justice'sPrecinct or lncorporated city or town any malt liquor containing In excess of one-half (l/2)of one per cent (1%)alcohol by volume except In counties,Justice'sPrecincts or incorporated cities or towns wherein the voters thereof had not adopted prohibitionby local option electionsheld under the laws of the State of Texas and In force at the time of taking effect of Section 20, Article 16 of the Constitutionof Texas In 1919; except that In counties,Justice'sPrecincts or Incorporated cities or townswherein a ma or figal- lze the sale of beer In accordancewith the local option provisions of Chapter lib, Acts of theRegular Session of the Forty-

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held in-any county, Jkticefs Precinct or incorporated city or townwithin this State In accordancewith the provisions of Section 32 to 40 Inclusiveof Article I of thisAct, for the purpose of determining from time to time whether the sale of beer shallbe prohibited or legalizedwithin the prescribed limits; and it shallbe unlawful to sell beer in any county, Justice's Precinct or Incorporated city or town wherein the same shallbe prohibitedby local option election,and lawful to sell beer under the provisionshereof In any county, Justice's Precinct, or Incorporatedcity or town wherein the sale of beer shallbe legalizedby local option election. "(c) The word 'beer'as hereinafter used in thisAct and for the purpose of this Article, shallmean any malt beverage containingone-half (l/2)of one per cent (1%)or more of alcohol by volume and not more than four per centum (4%) of alcohol by weight." (Emphasisadded)
House Bill No. 77 was approvedby the Governor on November 15, 1935, and became effectiveupon the same date.

Therefore, It Is the opinion of this office that the above quoted language from House Bill No. 77, Acts of the Forty-FourthLegislature, 1935, Second Called Session,authorized the sale of any malt beverage containingone-half (l/2) of one per cent (1%)or more of alcoholby volume and not more than four per centum (4%) of alcohol by weight In any area in which the sale of any malt beverage containingnot more than 3.2 per cent (3.2%)of alcohol by weight was then authorized. Assuming the validity of the election held In Justice Precinct 2 in Denton County on September 21, 1935,beer contalnlngnot more than four per cent (4s)of alcohol by weightmay now be sold in such precinct.
SUMMARY When the CommissionersCourt enlarged Justice Precinct Two In 1948, the same having in 1935 voted to legalize the sale

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Honorable John Lawhon, Page 7 (c-658)

of beer, by adding additional territory which was previously In a dry Justice Precinct, only the orlglnal territorial boundaries of Justice Precinct Two remained wet for the limitedpurpose of the sale of beer not in excess of 4.0 per centby weight of alcohol by virtue of the provisions of House Bill No. 77, Forty-FourthLegislature, Second Called Session (1935). Very trulyyours, WAGGONER CARR Attorney General of Texas

AssistantAttorney General DHC/dt
APPROVED OPINION COMMITTEE:
W. V. Geppert, Chairman Gilbert J. Pena Mary **K.** Wall Philllp Crawford W. 0. Shultz
APPROVED FOR THE,,ATTORNEY GENERAL By T. B. Wright

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