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OFFICEOFTHEA’TTORNEY GENERALOFTEXAS AUSTIN

yc;lorable

Jesea ?J. Etrawn CountyAttorney ::lilooy

County ~eynondvllle,

Toxee
Deer sir:

01 in exoe08 of *ntand the aounty~ 0 fourteenper asnt net? Y.‘het

type of bould be lssned In inct in Cc386 it is eny cyp of alcoragea asp be 80167

, requ3sting the iona set out above

C??r tL;o 101~~1 0~,';10:1iC:l that eXisted prior t0 1537, voted 'tar prohibiting t.ho sale or all liquors, C3jrCCDt virioue

an6 1:al.C

Licuore that a0 not containtionorebld ~~~e8 w. Sttawn, Page 2

_
unable to 

### rind any ftuthority 

### on thie question, but It bmx?~a

to mi that itO;fould be le@al to sell ~;;;ten&#in8 u? to four (4;~) per oent in the preiha You wllL iiOtlO6 rrorn my orlgifial

question that ocuntyvoted dry a3 to four (I+$) per cent hoer, but later voted wet 8s to fourteen (145) beer and wine. The ?rccir.ot in questionhas never voted dry on either four (I+!<) per oent buar or fourteen (X4$)per cent beer epd wlnc. "1 an et the opinion thnt it isle&al to sell hoer and wine up to four (4::) .peraont in the preoinotr Yhat type or lioense should be Issued in said prcoinot in ease you find that sup type of aloohollobeveragenap be aold?" h the above quoted let&m you rerer oa to a letterpreviounlp!:?ittcn by you to this dcg artnentwhich lettarwea doted Fcbruery 27, 1942, and contain& inquiries t&;chWere nnsvercd in this dapartmentfsopinion 110. 

### 04466. It is neoessory to aonsldar both 01p thooo lcttsrs together 13 order to amiycr th6 questions coutaised in the above quotedlatter, end sinoo neither of your letters reveals the status of the county or of the precinatpAor to the rlootlonthat rssultod in the le~elizationof the sale or rinousend nalt liquors that do oot oontsin alcohol in excb5a or sou percent (4$) by ivoight, it would 3fen to 

### be alsonecessnryto indulge the prcamptlon that the munty aonteinlng

the precinctwcs aither wet et the tine or the acoptlonof the prohibitionanencbent to the Constitution la 1919 or had oinoe tha adoptlon or the Constitutional euendment

penitting loael option, and bororc the olcotion ma held in:thioprecinct voted Vet to SOne extent penaittedby law because unless the oounty Itself was wet, 6 polltioalsubdivisionthereof oould not 1OEallY Vote to permit the aale of any type of alooholiobeverage.

BeglnninC then with the presumptionof the volld- !tyof the first.

election in the gyeoreainct, Y#e now dlnoues fourquestionsin a eeries of cuc:bc:red atop3 in sccord.ence *.lt!l the v5ryir.g

oocditlonOf the oo8mty end prcoinot as tc the sele of alaoholio beverage5es deaoribcd in both OS mr lottera,

,-zonoreble James W. I?trawn,

page 3

1. the **VOttW5,** "In the politloel subdivision,a preolnot,

under the loocl option law that existed prior to 1937, voted 'for prohibitingthe sale of all liquors, exceptYInous and rslt liquors that do not contain aloohol lo OXCOBS of four (4:') per oent by weICht*." (Fromyour letterof Heroh 13, 1942.)

This eleotlon **ob~lausly** had the erfeot of permittIhg the ocle of alcohollo beverages oontainingnot more then four percent (&:A) of aloohol by weight and of ?rohIbItlng the sale of any alooholiobeveregesoontnlninga per- :- oentsceof alcohol greater than this amount. This Is 80 **olear** that no oltotlon of authorItIas,are aeoessary on this point.

04 In the 

### 2. *In 1937 all aloohollobeverages

### were $rbhIbItoount y"
. (From your letter 

### of February 27, 1942,)

. This election and the vote of the Jeople of the entireaounty e.gaInet the sale of all elcoholiobeverages ' had the effoot of prohibiting the sale of any alooholio beverage regardless of the alooholio content In tlr, precinot in questionend such prohibitionwould oontinua so long as the oounty as a whole remained dry and until the people of the tlhole

oomty,that Is the eeza politicalentity held an elootlon

and voted In favor of the sale of aloohollobeveragesto some extent permitted by law. In support of this rule of law we olte JaoksonY, State; 118 S. 17. (2) 313, whereinIt wns held by the Court of CrImInalAppeals Of Texasthat!

Ylntoxioatlngliquors onoe having been voted out by Yoters of e politloal subdIvisIonof 8 oounty oan only be voted baok by a majority vote of Identical territory that had voted such liquors but** end quoting from this ease In the lengutige of Judge Craves kti wrcta the opinion,vie find; "Tha countyx~ayforoe prohibItionby vote over preoinotswhioh are not In favor of it, and 60 may a preoinot over cities, towns, or subdloisicnstherGof that may not be In favor of it, but cannot foroe, by vote, rc?eal of It In any to\-m,

city or subdivisionthereof.n‘

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.~ .: Ronorebla

### JamesW. ZXawvn,Page 4

in the above quotod passa(r,o Judy,e Cravenwae himself quoting from an earlier o~lnlon of Judge Hurt In the caaa of Aaron v. 

### sate, 29 E. HI 267, but Judge Greves made It 

### olesrthat he adoptedsuoh language and the rule there stated end made It the opinionof tho court in Jaokson Y. state, Supra. To the #$a.?10 effeot IS the 0pInIon of Judge ncvldaon In the oaae of Ex parts ?ollard, 103 S. Y;.87l?, and the Court of CIvS.1 Ap- !~?;l;e;!Se

Of POW011 V* %Ith, 90 8. 3, (2) 942, IU WhIoh It : WwhBre looal opt&on was adopted in any &vsn locality,by the majority of the voters thereof, It will rcnain In force until the cl_uallfIed voters of suoh partloular subdIvIsIondeoide otherwise In en elootlozbald for that purpose.* 9!hue we see that the rule emerges whloh Is now clearly tha settledlaw of this %ats, that while a political~ubdl.vIsion of a bounty may Do and romein dry even though thu aounty 88 a Whole votes wet 

### In any of the degreespermItted by law, euohpolitical subdivisionof the countymay not be or remain wetwhen the oounty aa 

### a vihole votes dry under looal option. ContInuIngwith ou7 analysis of tho hlotory of the vsrlousstages of wetness ena dryness throu& which **your ooun**  ty has paosod as described by your letter we find:



### 3. HIn 

### 1938 row (&?+) per cent beer ~05 1egalIzed xlthIn.theoountpi later an eleutlon to leqelizeall eloohollo beverages.

f&led to terry; in 1939 four (4%)per 

### cent beer Pias legoll%ed

### In the oounty.* (From 

### your letter of February 

### 27, 1942.1

The questionpresented In this paraexaph is did the preolnot

### In question beoome wet aa to four peroont (46) Elcoholio

beveragesWhen the county aa a Whole voted Met in 1939 aB to four percent (4:s) olooholIc bcvcreyes? Uz?der the rule laid dovn In tho ebove cited OR",CS We think that Suoh pSecinctQld bec0.m vet as to fcur percent (Pi) nlcohollo bC:v~rh7cs

when She co:lntY

03 a ::hola v~-i~,cd :iEt;

ss to Zuch ._I here~sn. The r(fio hcrclnebove quoted z.:8en8 that the voter5 of n v&o].@

county ocnnot onlar$o or add 'CO the Wet Status Of B ~Oliticr;l subdivISIonof Such COUntY thOW:S they ?z~aY taks .%V3y or oyorrule itn vet ot.3tllS. It. iB OLZ' OgiEiOn, therefore, that the precinctwould return to the status Voted byi gonorableJames W. **%miwn,** Pegs j

.! ; tha people for that particularpreoinat et the last sle0ticn i held in the precinct for that purpoce. The last election

held in such prsoinothoviny; resulted In the le(;allzation

. i'. cf four parcent (4%) eloohollobeverogcaand hqving in the i meantImegone by by 6 vote of the whole county, the grcP 2 cinctwould return to a status pemittln< the sale of four

pcrcant (G) alcoholicbavcreceswhen the countyas a nhole, 3 at a subnoguenteleotion, QOttd to ~0rnlitl the sale or iour i proont (43) alcoholio beverages. i

t 4. “In 1941 four (I$) per Cent beer was prohibited in the oount~.~ (From your letter of Februnry 27, 1942.)
$ Now the prscinotv?ould again hecone dry under the rule of ISW 8et Out, clttd and dlsousssUabove.

% 5. "IZI 1942 the &ale Of fourteen (1451per oent **beer** and wine was legalized. * (Pron your letter of Pebru- % sry 27, 1942.) “.
. . The preoinct ln qucatfonhas never totea dry on either four (4") per cant beer or fourteen (145) per cent baer and w~Iw.~~ (From your letter of i:arch 13, 1942.) i j I% have now reachad the ?rcsent state in which we find that the county is wet ss to Towtea,? >:cxcnt (II&) beer 4 andwine) what then is the present ststus of the precinot In quest&n? Ye thin% t&t aaid prccinot is nat only as to alcoho110beveragesccntainlnanot more than four percent (4$) a or aloohol by weight. ? Under the state of iaots given to us by you this i prcclnot

voted to be dry as to all elooholiobevoragenexcept

, **those** otmteining more than r0ur percent (4,;) by might on4 no other eleotfon either nay has ever been held in such praoinatsinoe .thst

time. Ey thin election it becamewet as to four percent (4;:)

alcoholicbeverages and it became dry as to t all alcoholicbeveragesoontalnlngaore than four percent (45) cr aloohol. Claerly,under tbu rules enunoietedhereinabove, it it hed been v~holly dry by n vote of tile ?so7le of tho oreelnot,it would have rcm&?cd dry throughoutaI1 these QtaCdtQde6of county eleotionc,Tccl-.con Q. Xate, supra, Aaron v. *tste,supre, ;r pcrta Pollard) Gupr3, 'io~wll v. T;:ith,

supra, ‘cdXouchinsv. Eeinos, 210 ?. :/. (2) 549. 53 oornty could o~Wl;:o Its wet status in favor Of 8 dry Oco, but the oaunty couldnot ohm&e its Ory ststun in favor of a wet one. 'UOhprecinctyeas

and is dry a3 to a13 ll?uorr in OYCGSS cr row pcroect (h:) or elcchol. c'uch prcclnctnow renalns 'r7 es to 011 aloohoiiobeverages containins: tore tb?n four.


### Bonorablr Jan&~W. Strawa, Page 6

peroent.(ii$)

alcohol 

### by weight. Its wet Hiatus is Aot enlargedor added to by rcmion ot the taot thet the aounty is ret in 6 groatcr dogree than is the proolnot, and such status may

# AOt

be enlewed eXCePt by Vote Ol" the people or that partioular

pre4iAat IA PA elsotlonheld 

### tor thst purpose. '351 caoord~ncawith the above holding you em advised iA BASwe1 to your ikit question that it is legal to sell alcoholicbeversgescontainingnot more than four peroent (f&i)

by might in euch procinot. In answer to your seoondquestion you em advlRed that t?le type of license to be lseuod in such prectnct should 

### be "Retail

### Dealers OnpremiseLioensew, krticle 667-3, 'cotion 4 (b), 'lemon's hnOtf&?d PhAtil. CO’!b, In anewerirg‘thfs last questionwe are ass~~&~ that iu your questionabout the tse of lioense youWaAt the type 0r lioense required **for** BA ordinary **re** trill Bealsr In srtoh

alooholo beverages. Very truly yours

Aaelstaht