. r 

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 precinct by adding additional territory 

to same which was in a 

dry precinct, whether the 

territory within the 

original wet precinct 

remains wet, and related 

Dear Mr. Lawhon: questions. 

Your letter requesting 8.n opinion of this office reads 

as follows: 

County and District Attorney 

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 Justice precincts from 8 

to 5. As a result the territorial boundaries 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 territory within old 

Justice Precinct Two now a wet area? 

"2. If yes, does the wet area lnelude only the territory boundaries 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 justice precinct as 

to repeal a law passed by a local option election In favor of or against prohibition. 

Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d 

549; Jackson v. State, 135 Tex.Cr.R. 140, 118 

S.W.2d 313. 

"This election was a clear, valid declaration of the will of the voters as to which under 

the Constitution and statutes they had a right 

to authorltlvely express their will. Ry virtue 

of this election, Justice Precinct No. 2 of 

Crane County as it existed on August 3, 1949, 

the date the petition was 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, 'Where local option was adopted In 

any glcen locality, by the majority of the 

voters therein, It will remain In force until the qualified voters of such particular 

subdivision decide 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 there was an 

election In the same territory to 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 originally voted 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 should be as 

follows: 

1. The original territory within the old 

Justice Precinct Two 1s still wet for 

the limited purpose of the sale of beer 

for on-premises consumption. 

2. The wet area Includes only the terrltorlal boundaries of old Justice Precinct Two. 

Consistent with this are Attorney General's Oplnlons 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 

containing not more 

than 3.2 percent (3.2%) 

of alcohol by weight. 

n'2. Against the sale of 

beer containing not 

more than 3.2 percent 

b;ZLt.~f alcohol by 

"The people voted for the sale of 3.2 

percent beer. It was passed by the people 

on September 21, 1935. 

"Question: If the area Is wet, what 

percentage of alcohol may the beer contain by weight, 3.2 percent or 4 percent?" 

-3181- 
Honorable John Lawhon, Page 4 (c-658) 

In 1933, Congress modified the Volstead 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, 

counties or political subdivisions thereof In which the qualified 

voters voted to legalize the sale of beer. 

In 1933, the Regular Session of the Forty-Third Le 

ture enacted House Bill No. 122, Chapter 116, Secti.on l(b 7 

lsla- 

, 

which provides: 

"(b). Upon and after the effective date 

of this Act (as provided In subsections (c) 

and (d) of Section 28 of this Act) In all 

counties In the State of Texas and In all 

political subdivisions thereof wherein the 

sale of Intoxicating liquors had been prohibited by local option election held under 

the laws of the State of Texas and In force 

at the time of taking effect of Section 20, 

Article 16 of the Constitution of Texas, it 

shall continue to be unlawful to manufacture, 

sell, barter or exchange In any such county 

or any such political subdlvlslon of 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 qualified voters in said county or 

political subdivision thereof voting at an 

election held for such purpose shall determine It to be lawful to manufacture, sell, 

barter or exchange In such county or In such 

political subdivision of said county any 

vlnous and malt liquors containing not more 

than three and two-tenths per centum (3.2s) 

alcoholic content by weight;" 

The election held on September 21, 1935, In Justice Precinct Two of Denton County, as described previously, was apparently in accordance with House Bill No. 122, Acts of the 

Forty-Third Legislature, 1933, and would legalize the sale of 

beer containing not more than 3.2 percent alcohol by weight in 

Justice Precinct Two. 

On December 5, 1933, the Twenty-First Amendment to the 

Federal Constitution, which repealed the Eighteenth Amendment, 

became effective. 

-3182- 
Honorable John Lawhon, Page 5 (c-658) 

On August 24, 1935, the voters 

ment of Article 16, Section 20 of the 

pealing State prohibition. 

of Texas adopted an amendState Constitution reHouse Bill No. 122, ,Acts of the Forty-Third Legislature, 

1933, was repealed by House Bill No. 77, Acts of the FortyFourth Legislature, 1935, Second Called Session, and the relative portions of such Act reads as follows: 

"Article II, Section 1. 

"Manufacture, sale and distribution of 

beer authorized; local option; 'beer' defined. (a) The manufacture, sale and dlstrlbution of beer containing one-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. 

"Unless otherwise herein specifically 

provided by the terms of this Act, the 

manufacture, sale and distribution of beer, 

as hereinafter defined, shall be governed 

exclusively by the provisions of Article 

II of this Act, Chapter 116, Acts of the 

Regular Session, Forty-Third Legislature, 

and all amendments thereto, are hereby 

repealed. 

"(b) It shall continue to be unlawful 

to manufacture, sell, barter or exchange In 

any county, Justice's Precinct 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's Precincts or incorporated cities or towns wherein the voters 

thereof had not adopted prohibition by local 

option elections held under the laws of the 

State of Texas and In force at the time of 

taking effect of Section 20, Article 16 of 

the Constitution of Texas In 1919; except 

that In counties, Justice's Precincts or 

Incorporated cities or towns wherein a 

ma figal- or 

lze the sale of beer In accordance with the 

local option provisions of Chapter lib, 

Acts of the Regular Session of the Forty- 

-31 83- 
Honorable John Lawhon, Page 6 (c-658) 

held in-any county, Jkticefs Precinct or 

incorporated city or town within this State 

In accordance with the provisions of Section 32 to 40 Inclusive of Article I of 

this Act, for the purpose of determining 

from time to time whether the sale of beer 

shall be prohibited or legalized within 

the prescribed limits; and it shall be unlawful to sell beer in any county, Justice's 

Precinct or Incorporated city or town wherein the same shall be prohibited by local 

option election, and lawful to sell beer 

under the provisions hereof In any county, 

Justice's Precinct, or Incorporated city 

or town wherein the sale of beer shall be 

legalized by local option election. 

"(c) The word 'beer' as hereinafter 

used in this Act and for the purpose of 

this Article, shall mean any malt beverage 

containing one-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." (Emphasis added) 

House Bill No. 77 was approved by the Governor on 

November 15, 1935, and became effective upon 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-Fourth Legislature, 1935, Second Called Session, authorized the sale of any malt beverage containing one-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 In any area in 

which the sale of any malt beverage containing not 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 contalnlng not 

more than four per cent (4s) of alcohol by weight may now be 

sold in such precinct. 

SUMMARY 

When the Commissioners Court enlarged 

Justice Precinct Two In 1948, the same 

having in 1935 voted to legalize the sale 

-3184- 
. ‘ 

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 limited purpose of 

the sale of beer not in excess of 4.0 

per cent by weight of alcohol by virtue 

of the provisions of House Bill No. 77, 

Forty-Fourth Legislature, Second Called 

Session (1935). 

Very truly yours, 

WAGGONER CARR 

Attorney General of Texas 

Assistant Attorney 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 

-3185-