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OFFICEOFTHEA’TTORNEY GENERALOFTEXAS 

AUSTIN 

yc;lorable Jesea ?J. Etrawn 

County Attorney 

::lilooy County 

~eynondvllle, Toxee 

Deer sir: 

01 in exoe08 of 

*nt and the aounty~ 

0 fourteen per 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~,';10:1 iC: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 contain 
tionorebld ~~~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 ocunty voted dry a3 to four (I+$) per cent 

hoer, but later voted wet 8s to fourteen (145) 

beer and wine. The ?rccir.ot in question has 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::) .per aont in the preoinotr Yhat type or lioense should be Issued in 

said prcoinot in ease you find that sup type of 

aloohollo beverage nap be aold?" 

h the above quoted let&m you rerer oa to a letter previounlp !:?ittcn by you to this dcg artnent which lettar wea doted Fcbruery 27, 1942, and contain& inquiries 

t&;ch Were nnsvercd in this dapartmentfs opinion 110. 04466. 

It is neoessory to aonsldar both 01p thooo lcttsrs together 

13 order to amiycr th6 questions coutaised in the above 

quoted latter, end sinoo neither of your letters reveals 

the status of the county or of the precinat pAor to the 

rlootlon that rssultod in the le~elization of the sale or 

rinous end nalt liquors that do oot oontsin alcohol in excb5a or sou percent (4$) by ivoight, it would 3fen to be 

also necessnry to indulge the prcamptlon that the munty 

aonteinlng the precinct wcs aither wet et the tine or the 

acoptlon of the prohibition anencbent to the Constitution 

la 1919 or had oinoe tha adoptlon or the Constitutional 

euendment penitting loael option, and bororc the olcotion 

ma held in:thio precinct voted Vet to SOne extent penaitted by law because unless the oounty Itself was wet, 6 polltioal subdivision thereof oould not 1OEallY Vote to permit 

the aale of any type of alooholio beverage. 

BeglnninC then with the presumption of the volld- 

!ty of the first. election in the gyeoreainct, Y#e now dlnoues 

four questions in a eeries of cuc:bc:red atop3 in sccord.ence 

*.lt!l the v5ryir.g oocditlon Of the oo8mty end prcoinot as 

tc the sele of alaoholio beverage5 es 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 prohibiting the sale of all liquors, 

except YInous and rslt liquors that do not contain aloohol 

lo OXCOBS of four (4:') per oent by weICht*." (From your 

letter of Heroh 13, 1942.) 

This eleotlon ob~lausly had the erfeot of permittIhg the ocle of alcohollo beverages oontaining not more 

then four percent (&:A) of aloohol by weight and of ?rohIbItlng the sale of any alooholio bevereges oontnlning a per- :- 

oentsce of 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 aloohollo beverages were $rbhIbItoount y" . (From your letter of February 27, 1942,) . 

This election and the vote of the Jeople of the 

entire aounty e.gaInet the sale of all elcoholio beverages 

' had the effoot of prohibiting the sale of any alooholio 

beverage regardless of the alooholio content In tlr, precinot 

in question end such prohibition would oontinua so long as 

the oounty as a whole remained dry and until the people of 

the tlhole oomty,that Is the eeza political entity held an 

elootlon and voted In favor of the sale of aloohollo beverages to some extent permitted by law. In support of this 

rule of law we olte Jaokson Y, State; 118 S. 17. (2) 313, 

wherein It wns held by the Court of CrImInal Appeals Of 

Texas that! 

Ylntoxioatlng liquors onoe having been voted 

out by Yoters of e politloal subdIvisIon of 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 county x~ay foroe prohibItion by vote 

over preoinots whioh are not In favor of it, and 

60 may a preoinot over cities, towns, or subdloisicns therGof that may not be In favor of 

it, but cannot foroe, by vote, rc?eal of It In 

any to\-m, city or subdivision thereof.n 
‘. :I(. : 

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1:. .y, 

.~ .: 

Ronorebla James W. ZXawvn, Page 4 

in the above quotod passa(r,o Judy,e Craven wae 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 olesr that he 

adopted suoh language and the rule there stated end made It 

the opinion of 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 subdIvIsIon deoide otherwise 

In en elootloz bald for that purpose.* 

9!hue we see that the rule emerges whloh Is now clearly tha 

settled law 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 degrees permItted by law, 

euoh political subdivision of the county may not be or remain wetwhen the oounty aa a vihole votes dry under looal 

option. 

ContInuIng with ou7 analysis of tho hlotory of the 

vsrlous stages of wetness ena dryness throu& which your oounty has paosod as described by your letter we find: 

3. HIn 1938 row (&?+) per cent beer ~05 1egalIzed 

xlthIn.the oountpi later an eleutlon to leqelize all 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 question presented In this paraexaph is did 

the preolnot In question beoome wet aa to four peroont (46) 

Elcoholio beverages When 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 

pSecinct Qld 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 subdivISIon of Such COUntY thOW:S they ?z~aY taks 

.%V3y or oyorrule itn vet ot.3tllS. It. iB OLZ' OgiEiOn, therefore, that the precinct would return to the status Voted by 
i 

gonorable James W. %miwn, Pegs j 

.! 

; tha people for that particular preoinat et the last sle0ticn 

i held in the precinct for that purpoce. The last election 

held in such prsoinot hoviny; resulted In the le(;allzation 

. 

i'. 

cf four parcent (4%) eloohollo beverogca and hqving in the 

i meantIme gone by by 6 vote of the whole county, the grcP 

2 

cinct would return to a status pemittln< the sale of four 

pcrcant (G) alcoholic bavcreces when the county as a nhole, 

3 at a subnoguent eleotion, 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 prscinot v?ould again hecone dry under the 

rule of ISW 8et Out, clttd and dlsousssU above. 

% 

5. "IZI 1942 the &ale Of fourteen (1451 per oent 

beer and wine was legalized. * (Pron your letter of Pebru- 

% sry 27, 1942.) “. . . The preoinct ln qucatfon has 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 and wine) what then is the present ststus of the precinot In 

quest&n? Ye thin% t&t aaid prccinot is nat only as to alcoho110 beverages ccntainlna not 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 elooholio bevoragen except 

, those otmteining more than r0ur percent (4,;) by might on4 

no other eleotfon either nay has ever been held in such praoinat sinoe .thst time. Ey thin election it became wet as to 

four percent (4;:) alcoholic beverages and it became dry as to 

t all alcoholic beverages oontalnlng aore than four percent (45) 

cr aloohol. Claerly, under tbu rules enunoieted hereinabove, 

it it hed been v~holly dry by n vote of tile ?so7le of tho oreelnot, it would have rcm&?cd dry throughout aI1 these QtaCdtQde6 of county eleotionc, Tccl-.con Q. Xate, supra, Aaron v. 

*tste, supre, ;r pcrta Pollard ) Gupr3, 'io~wll v. T;:ith, supra, 

‘cd Xouchins v. Eeinos, 210 ?. :/. (2) 549. 53 oornty could 

o~Wl;:o Its wet status in favor Of 8 dry Oco, but the oaunty 

could not ohm&e its Ory ststun in favor of a wet one. 

'UOh precinct yeas and is dry a3 to a13 ll?uorr in OYCGSS 

cr row pcroect (h:) or elcchol. c'uch prcclnct now renalns 

'r7 es to 011 aloohoiio beverages containins: tore tb?n four 
. 

Bonorablr Jan&~ W. Strawa, Page 6 

peroent.(ii$) alcohol by weight. Its wet Hiatus is Aot enlarged or 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 elsotlon held tor thst purpose. 

'351 caoord~nca with the above holding you em advised iA BASwe1 to your ikit question that it is legal to 

sell alcoholic beversges containing not more than four peroent (f&i) by might in euch procinot. In answer to your 

seoond question you em advlRed that t?le type of license 

to be lseuod in such prectnct should be "Retail Dealers Onpremise Lioensew, krticle 667-3, 'cotion 4 (b), 'lemon's 

hnOtf&?d PhAtil. CO’!b, In anewerirg‘thfs last question we 

are ass~~&~ that iu your question about the tse of lioense 

you WaAt the type 0r lioense required for BA ordinary retrill Bealsr In srtoh alooholo beverages. 

Very truly yours 

Aaelstaht