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 eletitlonunder Te&s'Liquor Control Act, where ballots are'not oanvass~ed.nor ,: ~result'sdeolared and whether 

### or

'not Commissfoneraf Court auth- ~or%zed~to call an eleutlon eubmitting proper ballots within twelve months. With further referenoe toyour letter ofApril 17th,.kSndlg be a,dvlsedthat this Department has oonsidered .your:requestas oontalned therein; for an opinion based upon facts set forth inyour letter.

Aoaordlng toyour letter, a prohlbition eleotion was held In Limestone County onAugust 7, 1909. At an election,ofWaroh 10, .1934,the sale of 3.2$ beer was legalized by county-wide local option eleotionti On October 29, 1936, ,aspecial eleotlon was held ln Limestone County, atwhioh time ,thefollawlng 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,ras followa:
' "OnNovember 3, 1936, H. Laughlin, aholder of.a retail beer dealerts license, was granted a temporary injunotion by_,the77th District Court of Limestone County against the Commissioners Court ofLimestone 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 theresults of such election, eta. On January 14, 1939, upon a final hearing of said cause, the Court made said injunction .,permanentandno appeal was perfected therefrom. The Plaintiff inhis petition and the Court in rendering its judgment proceeded upon the theory that the wording of the ballot submitted did not oonform tothe 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~releotion and, in order thatwe 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 inLimestone County on Ootob8r 29, 1936, would the Commissioners Courtbe 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 ControlAot, as found,inVernonts Annotated Penal Code of Texas, 1925, are set forth under ArtiOl8 661-l et seq. endArtiole 667-l et seq. &rtiol&.666-32';rBad&as .followst

"The Commissioners Court.of each County in the State upon its ownmotion may order an eleotion to beheld by the qualified voters in said county, to determine whether ornot the sale of liqUoP8 shall beprohibited or legalized In suoh county,,and such court shall order a loaal option eleation whenever petitioned to do 80 by a8man9 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 theba8iS for determining the qualified voters in any such county, or politioal subdivision. After the first loaal option elsotion held a8provided jn thisAct, inany county, justios precinct, lncorporated town, or city; no subsequent election upon the aam8 issue in the same political subdivision shall beheld within one (1)mar from thedate of the preceding local option 818CtiOn in said county, orHon. 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 asherein provided shall, asprovided in section 32,Article 1, order local option elections for the purpose of det8XTTLining whether alcoholic beverages of thevarious 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). 'Forprohibiting the sale of beer containing alcohol'not exceeding four (496)per centum by weight,r and ‘A ainst prohibiting the sale ofbeer containing aBcohol (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 tobe prima facie eVid8nC8 that all the provisions of lawshave been complied with... .a

'Article666-40a, among other things, provides that at any time within thirty days after the result of any local option eleation held pUrsUant to theprOViSiOnS of theYexas Liquor Control Act has b88n declared, a contest may be filed with theDistrict Court of the county inwhich the election has been held, tohave original and exclusive jurisdiction of all suits to contest the same. It appears from the facts stated inyour 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 ordeclared. Until suchvotes are canvassed, theresults declared-and published, under the provision8 of the Texas Liquor Control Act, no local option election as provided for in theAct can be said tohave been held.Under the decisions of our appellate courts, the wrong ballot was submitted tothe electorate on theHon. J. B.Kngledow, April 26, 1939, page 4, O-654

above date, and same being not applicable tothe status ofyour 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 soheld whiah was voidable, invalid. We express no opinion as to thevalidity of said injunction, as that question appear8 moot.

The case of Mitchellvs. McCharen, 119 SW 2nd 676, citedby you, appears tobe authority up& the question as to the right of the Commissioners~ Court on its ownmotion 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 ofMarch 10, 1934, the oounty as awhole, 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 tissueas authorized by the Act would be a prohibitory one and a8 set forth above, paragraph (l), Artiole 666-40 would bethe proper ballot tobe used. This is in accord with prior rulings of this Department, and whiah is also held in our opinion O-286, towhich YOU refer inyour letter and we assume a copy of this opinion rendered to Hon. BertFord onMarch 7, 1939, is availaole inyour office.

It is, therefore, the opinion of this Department that where an eleation isheld submitting the wrong i8SUe toth8 voters for thepurpose ofholding a local option election, 'tidsuchballots arenot oanvassed nor the reaults declared or published, smae doesnot constitute suah local option election as provided for under theprovisions 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 anotherHon. J. B. Engledow, April 26, 1939, page 5, O-654

election tobe held for the same area within twelve months, inwhich aproper issue is submitted.

Very truly yours ATTORNEY GENEFUL OFTEXAS s/ Wm. J.R. King


### BY Wm. J.R. King Assistant

WmK:hW/cg ipprove

### a: a/ Gerald C.Mann ATTORNEY GEWERAL OF TEXAS