April 26, 1939 

Hon. J. B. Rngledow 

Assistant County Attorney 

Limestone County 

Groesbeck;Texas 

Dear slr:~,. ~ : O&nion+o. .O-634 

Re: Effeht of-an eletitlon under 

Te&s'Liquor Control Act, where 

ballots are' not oanvass~ed.nor 

,: ~result's deolared and whether or 

'not Commissfoneraf Court auth- 

~or%zed~to call an eleutlon eubmitting proper ballots within 

twelve months. 

With further referenoe to your letter of April 

17th,.kSndlg be a,dvlsed that this Department has oonsidered .your:request as oontalned therein; for an opinion based 

upon facts set forth in your letter. 

Aoaordlng to your letter, a prohlbition eleotion 

was held In Limestone County on August 7, 1909. At an 

election, of Waroh 10, .1934, the sale of 3.2$ beer was 

legalized by county-wide local option eleotionti On October 

29, 1936, ,a special eleotlon was held ln Limestone County, 

atwhioh time ,the follawlng ballot was submitted to the 

voters: ', 

"OFFICIAL BALLOT 

"FOR -,Prohlbl&g the sale of all alooholio 

'beverages 

itAGiINST - Prohibiting the sale of all alcoholio .beverage,st' 

We quote, further from your lette,r as followa: 

' "On November 3, 1936, H. Laughlin, a holder 

of.a retail beer dealerts license, was granted a 

temporary injunotion by_,the 77th District Court 

of Limestone County against the Commissioners Court 

of Limestone County, :restrainlng said Commissioners 

Court. from canvassing tne ballots, deolaring and 
? L 

Hon. J. B. Engledoa, April 26, 1939, page 2, O-654 

and publishing the results of such election, eta. On 

January 14, 1939, upon a final hearing of said cause, 

the Court made said injunction .,permanent and no 

appeal was perfected therefrom. The Plaintiff in his 

petition and the Court in rendering its judgment 

proceeded upon the theory that the wording of the 

ballot submitted did not oonform to the status of the 

county and did not comply with the provisions of 

Article 666-40 of Vernoncs annotated Penal Code. 

"VariOUS Citizens Of this county hav8 

expressed their intention of petitioning the Commissioners Court to oall another b8e~r eleotion and, 

in order that we may intelligently advise the aOUrt 

wlth'reference thereto, we respectfully request yar 

advice upon the following questions: 

"1 . In view of the holding of the above referred to election in Limestone County on Ootob8r 29, 

1936, would the Commissioners Court be authorized to 

call a beer election within twelve months after said 

date if properly petitioned to do ao? 

"2. If Suoh an eleotion may now be legally 

called, what form of ballot should be Submitted?" 

The provisions of the Texas Lkquor Control Aot, 

as found,inVernonts Annotated Penal Code of Texas, 1925, 

are set forth under ArtiOl8 661-l et seq. end Artiole 

667-l et seq. &rtiol&.666-32';rBad& as .followst 

"The Commissioners Court. of each County in 

the State upon its own motion may order an eleotion 

to be held by the qualified voters in said county, 

to determine whether or not the sale of liqUoP8 

shall be prohibited or legalized In suoh county,,and 

such court shall order a loaal option eleation whenever petitioned to do 80 by a8 man 

9 

as ten (10) per 

cent of the qualifled voters of.sa d oounty, or of 

any justiae precinat, city or town, taking the 

votea for Governor at the last preceding general 

election as the ba8iS for determining the qualified 

voters in any such county, or politioal subdivision. 

After the first loaal option els otion held a8 provided 

jn this Act, in any county, justios precinct, lncorporated town, or city; no subsequent election upon 

the aam8 issue in the same political subdivision shall 

be held within one (1) mar from the date of the 

preceding local option 818CtiOn in said county, or 
Hon. J. B. mgledow, April 26, 1939, Page 3, O-634 

said political subdivision of said county." 

Artial8 666-40, and its relevant provisions, read: 

Yhe Commissioners~ Court upon it8 Own 

motion may, or upon petition as herein provided shall, 

as provided in section 32, Article 1, order local 

option elections for the purpose of det8XTTLining whether 

alcoholic beverages of the various types and alcoholic 

contents herein provided shall be legalized or 

prohibited... . 

"In areas where the sale of beer containing 

alcohol not exeeding four (4%) peraentum by weight 

has been legalized and all other alaoholio beverages 

are prohibited, the following issue shall be submitted in any' prohibitory election:,~ .~ 

“(I). 'For prohibiting the sale of beer 

containing alcohol' not exceeding four (496)per 

centum by weight,r and ‘A ainst prohibiting the 

sale of beer containing a B cohol 

(4%) per centum by w8ight.t1* 

not exceeding four 

Article 666-37, provides for the canvassing of 

the returns of such election and deolaring the results 

by th8 Conuuiasioners* Court by order entered, and provides 

that such order declaring ths sale of liquor prohibited 

within the ~territory involved "shall be held to be prima 

facie eVid8nC8 that all the provisions of laws have been 

complied with... .a 

'Article 666-40a, among other things, provides 

that at any time within thirty days after the result of 

any local option eleation held pUrsUant to the prOViSiOnS 

of the Yexas Liquor Control Act has b88n declared, a 

contest may be filed with the District Court of the 

county in which the election has been held, to have original and exclusive jurisdiction of all suits to contest 

the same. 

It appears from the facts stated in your letter 

that the ballot8 used in the election of Oatober 29, 1938 

were never canvassed and that the results of said election 

were never published or declared. Until such votes are 

canvassed, the results declared-and published, under the 

provision8 of the Texas Liquor Control Act, no local option 

election as provided for in the Act can be said to have 

been held. 

Under the decisions of our appellate courts, 

the wrong ballot was submitted to the electorate on the 
Hon. J. B. Kngledow, April 26, 1939, page 4, O-654 

above date, and same being not applicable to the status 

of your county, would in effect render said election 

voidable. Moyer vs. Kelley, 93 SW 2nd 502, writ dismissed; 

Whitmire vs. State, 130 Tex. Cr. R. 372, 994 SW 2nd 742; 

Flowers vs. Shearer, 107 SW 2nd 1049, Akers VS. Remington, 

115 SW 2nd 714. 

In the absenca of an appeal from the order 

granting the injunction, it further appears that the 

District Court of Limestone County has, in effect, declared the election so held whiah was voidable, invalid. We 

express no opinion as to the validity of said injunction, 

as that question appear8 moot. 

The case of Mitchellvs. McCharen, 119 SW 2nd 

676, cited by you, appears to be authority up& the question as to the right of the Commissioners~ Court on its 

own motion or after being duly petitioned, to order a 

looal option election wherein the proper issue will be 

Submitted to the voters where the same issue has not 

within one year pr8viously, been 80 voted upon. 

At the eleation of March 10, 1934, the oounty 

as a whole, according to your letter, legalis8d the sale 

of 3.2$ beer. That fixing the status of your aounty, 

the county-wide local option election subsequently tobe 

called upon such tissue as authorized by the Act would be 

a prohibitory one and a8 set forth above, paragraph (l), 

Artiole 666-40 would be the proper ballot to be used. 

This is in accord with prior rulings of this Department, 

and whiah is also held in our opinion O-286, to which YOU 

refer in your letter and we assume a copy of this opinion 

rendered to Hon. BertFord on March 7, 1939, is availaole 

in your office. 

It is, therefore, the opinion of this Department 

that where an eleation is held submitting the wrong i8SUe 

to th8 voters for the purpose of holding a local option 

election, 'tid such ballots are not oanvassed nor the reaults declared or published, smae does not constitute suah 

local option election as provided for under the provisions 

of the Texas Liquor Control Act, Article 666-32, et seq.; 

and being voidable, would not prohibit or render invalid 

an order of the Commissioners~ Court ordering another 
Hon. J. B. Engledow, April 26, 1939, page 5, O-654 

election to be held for the same area within twelve months, 

in which a proper issue is submitted. 

Very truly yours 

ATTORNEY GENEFUL OF TEXAS 

s/ Wm. J.R. King 

BY Wm. J. R. King 

Assistant 

WmK:hW/cg 

ipprove a: 

a/ Gerald C. Mann 

ATTORNEY GEWERAL OF TEXAS