Hon.~Russel A. Moran Opinion No. v-590 

Cbtinty Attqrneg 

Palo pinto County Re: Result to be certified by 

Palo Pinto, Texas ' C6mmissioners1 Courtin a 

local option election in: 

which two issues were submitted. 

Dear ~Slr: 

Your letter requesting an opinion of this department 

reads aS follows: 

"Will you please advise wha'i'results the Corn-: 

mi.%ioners Cow% of.Palo Pinto County, Texas, should 

declare nrider.the followingstaterpent of facts: : 

~.FACTS ~. 

: 

"On the date of the election Palo Pinto County 

had legalized s.+le of beverages dontaining aLcoho1 

not In excess of fourteen (14%) peF.centum by voluni6,- .I 

and those of higher alcoholic.content were prohibited. 

On May 8, 1948, an election was held which submit&d" 

.to %he voters the following isiues as set forth in:- 

:- 

"Art. 666-40 (g). 'For prohibitiri&the dale .of .; 

ialcoholic beverages that contain .,. 

alcohol In excess of PO& (4s) ', ~ 

per'~centum by weight' and 

'Against prohibiting the sale of 

alcoholic beverages that contain 

alcohol in excess of foyr (4%) 

per centum by weight': 

(h) 'For prohibiting the sale of 

all'alcohollo beverages' atid 

'Against prohibiting the sale of 

all alcoholic beverages'. 
Bon. Russ81 A. Moran, page 2, V-5gi1 

"On the first Issue (g) the voters by eight votes 

voted against prohibiting the sale of alcoholic beverages that contain alcohol in excess of four (4%) per 

oentum by weight, but on the second Issue by four 

votes voted for prohibiting the sale of all alcoholic 

beverages. 

"In view of the fact that the Commissioners 

Court is required on the fifth day after the election 

(Thursday, May 13) or as soon'thereafter as praotlca+ :, 

ble to canvas the returns and deqlsxe the result.of 

the election; your opinion on this matter at the 

earliest possible time will be greatly appreciated." 

Subdivision '(b) of Section 20 of Article XVI of the 

Texas Constitution, as adopted in 1935, provides: 

. 

'The Legislature shall enact a law or laws whereby the qualified voters of~any county, justlce,ts precinct or inoorporated'town~ or city; may, by a majority ,~ 

vote of those voting, determfne from time to time 

whether.the sale, ~f.,Jntoxicating liquors for beverage 

purposes~ shall bef'prohiblted .or~ legalised'vithin~ the 

prescribed llmits~;::ai&such laws shall contain provisions for voting dn'the sale of intoxicatingliquors 

of various t es and various alcoholic content. 

(Rmphasis is%.zpplied':throughout) 

Pursua&tothis coni titutional mandate,' the hegislature In 1935 setforththe varlons~ issues which might be submitted ata.local',option electlon~. 'These issues were, framed so 

as to submit',to~'the~voters the ques~tion of whether or not alcoholic beversges~of the various types and alcoholic content 

should be legalized or Ijl;ohibited. As finally amended in 1937, 

'the various lssnes which may be voted upon in any local option 

election are. found in Section40 of Article I of the Texas 

Liquor Control Act;"hodlfied as Article 666-40 of Vernon's Penal 

Code. Since you have stated that Palo~:Plnto County; on the date 

of the election, 'had legallted'the sale'of beverages contalnlng 

alcohol no,t in excess of.fourteen per Oent by volume only the 

following 'portion of Articles 666-40, V&non's Penal Code, Is 

pertinent to the facts submitted: 

‘\ \, \ 
XI. Russel A. Moran, page 3, V-590 

. 

"Iti'~a&aq xl&$ the.sale of.beveragea'con~sin~ 1~ 

i&k&3+A-t+ in ek&s,g of f&x+&q (14%): p&p :. : ..Y 

centum ~by volume has:been legali.kd, and those of.~,:"' 

higher~ 'alcoholic 'content :are proh,lbdt,ed,~.one or : t; .I 1 

m of'.the ~followi&ig iesues 'sharr be,..submltted .ln .~. 

any prohlb$tory election: 

.; .'. ~- .., 

"(8'):~ !For'prohibiting the sale of slcohulic~ '. 

beverages that~centairi.~alpohol'in tixcess of four ,. 

(4%) per-centum by,i&@t' .and 'Against prohib~fting 

the'sale df,alc.oh?lio:beverag~s 'that Oontainalqo- ~~ 

ho1 inex+ss~ of ,.four ,(4$)--per, +ntum ~by Yeight;l 

"(h):'tFor prohibiting Ethel sale of all altio- X‘ 

~' holic beverages: -ann~tllgainst,~prohlbiting the'sale 

of all alcoholic beverages;'".'~ ~. ~'i 

contained- in both subaragraphs the~'voters .of Palo 

IntoCounty;. The eXeectlon.'result&,d ln:a majority voting fin 

svor of the;'fo~lowIng :Fo Xssn0s.l ,~ z:.~,, 

"Agaihst' prohibiting the sale of*alcohoiic.i" '~':, .. 

beverages ;tliat contain'alcohol in'excess~of f&r G ::-1 

'. (4%) ,per.centuin~~y~weigh~." ,'.;cz .'~" '~'2 I. I' ..,,. '-' ~~.

-. 

.., .'...~"' .' 

.,,~ ,, : ":: 

"For~prkbiting the saie'of"ail a~llcoho&? 

': ._ 

be.y?yzes . n .,: ;: ; ,,~ 

.:: ?I!& .que.stion ~for 'our dec'lsion -is,what result'shoulb .: 

ne Conrmfsdoners' Court now cer~tifgi A,thoro$@ search'.of: 

very available."authqr~ty relating to looal~opti,~n-~~~c'tlons 

ss revealed:no ease similar to, the. fact sltuation:before I& ~.: 

or has' any~'enllghtenment, been secured, from textbooFVriters: 

ther. than general~statements- conqe~ing:e~e$t,$o~ns; ;,'._ 

.- :: 

'The.foilow~~',~Catement :of j&~'gener&l,,,ru~e Is. found 

a 29 C. 'J. Si, .Ble.ct~ons.,,~ge'~~ 17$:; ~. 

.: 1; 

:~": :~ 

.a.. and'exbeptln &o.se.,cases in ,whSah 

'statutes pres&ibing rules to'be obsb$erved by,a % .~ 

voter lnthe preparation of~his baalot are shown' 

to be mandatory by prohibitive ~terms; ~'InhIbiting 

the counting of a ballot in case of deviation from 
Hoii. Russel A. Moran, page 4, V-590 

Four authority InTexas supporting the proposition 

that the ballot should be~.glveneffect if the Intent of the 

voter maybe ascertained from it, see the cases of Wright. v. 

Marquis, 255 S. w. 637; Johnston'v. 

Hooker v. Foster, 19 S. W. (2d) 911. 

Peters, 260 S. W. 911; 

Another statement of the. eneral rules appears 

16 Tex. Jur. 114, Elections, Sed. 9% 

?In order to secure. the purposes for which 

elections are held, the lirle'ls ~that a ballot; 

like any other writtell lnstrumenti'should be ex- 

&mined in the light of the attendant circumstances 

with a view to ,ascertain&ng the intention of the 

voter." .~ 

in 

We have examined the eledtion results In the light 

of the authorities.quo,ted,above and Inan effort, to ~ascertasn 

fioti them the .int&it'of'the'voters of P&lo Pinto County. Our 

effort has ~met with failure. The results disclose that the 

voters on ~the. one~hand~ expressed a desire to favor the sale 

of beverages,'of..a'~&eater'alcohollc' content.than four per oent 

by weightarid dh.,the otherhand expressed a kontrary.deslre to 

prohibit the,s,ale:o'f all, aloohollc beverages. 

' "We'b6~iev~, the &aion for the conflicting vote may 

inlarge measure be attributed to the unfortunate phrasidg'of. 

various issues'contained in Article 666-40, Vernon's Penal Code. 

So&s of 'the issues are couched in such language asto be misleading to ~the average voter. For'lnstance, the two"lssues snbmltted In this election beginning with the words "Against prohibiting" undoubtedly tisled~~some of the voters. The results of 

the election in Palo Pinto County clearly indicate the neeU for 

a revision of Article 66>F40 of Vernon's 'Penal Code. 
Eon. Russell A. Moran, page 5, V-590 

'&~.is:&ir opinionthat the result of .the,local option 

election under~-consid~~a~~Son,,.is impossibie.of.as~ertainment..Such 

election is therefore voidi~~and the.Commiss%oners' Court should 

so certtfy. 

The iocal option elec.t$on,in Palo Pinto County 

Inwhich two.lssues~were submitted to the voters;~. 

one resultQ@.dn~the majority votltug.agalnst pro-~' ,,_ ' 

hlbiting the&le,of.aldoholic'~beverages containing ', ,.:.,, 

alcohol in excess of fourper cent by weIght,,and the 

other resulting in the majority voting for prohibiting' ' 

the sale of all alcohollo-,~beverageq.-~is vo$d.+ 

Yours'very truly 

,.! : 

ATT&IR$Y @3n6F TRY@ 

CYM:rt 

,AssBtant ,i.._ ~.,, 

/ .~ :.j.. .! ~. 

. ,.. ~.