- - 

Hon. Andrew P. Johnson Opinion NO, ~~387 

County Attorney 

Dimmit County Re: Authority of Commissioners1 Court 

Carrizo Springs, Texas to order or refuse to order a 

local option election, 

Dear Mr. Johnson: 

Receipt is acknowledged of your request for our opinion 

upon the two matters hereinafter set out, Your opinion request 

has been supplemented with some additional facts which we thought 

it necessary for us to have in order to answer your questions, 

We wish to thank you for your able brief which accompanied your opinion request. 

You state that Dimmit County, by a local option election 

held in 1935, voted to prohibit the sale of all intoxicating alcoholic beverages in said county. You further inform us that no 

county-wide election has since been held which authorizes the sale 

of intoxicating alcoholic liquors in Dimmit County, You state 

that the City of Asherton is incorporated and lies wholly within 

the boundaries of Dimmit County; that the requisite number of qualified voters residing in said City of Asherton have presented to 

the Commissioners' Court of Dimmit County a petition asking that 

a local option election be held in said City of Asherton to determine whether the sale of alcoholic liquors will be authorized in 

the corporate limits of said city, 

You desire the answer to two questions, and for the sake 

of brevity we shall condense each question, and transpose the order in which they are set out in your opinion request, 

Question No, 2: In substance, your first inquiry is 

whether the election mentioned, if held, would be a 

legal election, 

Our answer to the question is that such election would 

not be a legal election if held, Such election, if held and if 

the majority of votes cast should be in favor of making w sherton 

"wetn, would, in law have no effect on the present "dry" status 

of the City of Asher i on. In our opinion 

become "dry" by reason of a county-wide f 

Dimmit County, having 

ocal option election in 

1935, Dimmit County and the whole of it will remain "dry" until it 
Han, Andrew P, Johnson, page 2 (WW-387) 

is otherwise determined by a county-wide election in which the 

majority of the votes cast and counted are for a change in the 

'ldryrt status of the county. 

In the case of Jackson vQ State, 118 S,W,2d 313, OUT 

Court of Criminal Appeals, speaking through Judge Graves, in 

part said: 

This 

been 

N 0 0 0 intoxicating liquors, once having 

been voted out, can only be voted back by a 

majority vote of the identical territorv that 

had voted such liquors out, To this effect is 

our holding in Aaron v0 State, 34 Tex.Cr. R, 

103, 29 SOW, 267." (The added emphasis is ours.) 

decision was handed down in the year 1938 and has never 

overruled, 

The Dallas Court of Civil Appeals, in the case of 

Goodie Goodie Sandwich, Inc.. vs State 138 S,W,2d 906, speaking through Chief Justice Bond, in pare said: 

"It has long been recognized by the courts 

of this State that, when the voters of a county 

justice precinct, town or city have, by means o h 

an election properly held, prohibited the sale of 

intoxicating liquors in such precinct or other 

political subdivision, it shall thus be unlawful, 

until the c+o'cers of such area shall determine 

otherwise by an election for that purpose. Intoxicating liquor, once voted out, can only be 

legalized by a majority vote of the territory 

that had voted it out, A change or abolition of 

the precinct or subdivision boundaries would not 

alter the status of the territory in relation to 

the sale of liauors, Houchins v0 Plainos. 110 

Tex. b-13, 110 S,W,2d 549; Hill 'vO Howth, 101-Tex. 

620 111 S,W, 649; Jackson v, State, 135' Tex.Cr. 

R, 140, 1-18 S,W,2d 3130ts" 

This decision was handed down in the year 1940. The writ of 

error tables show that error was dismissed by our Supreme Court 

with the notation that the decision was correct, and prior to 

the decision in the last mentioned case9 the Supreme Court of 

Texas, in the case of Houchins v0 Plainos. et al,, 110 S,W.2d 

5%9, speaking through Mr, Justice Critz, said in part: 

'*Of course9 any such area has the right to 

become wet by so voting at an election legally 
- 1 

Hon. Andrew P, Johnson, page 3 (WW-387) 

ordered and held for that purpose under present 

local option statutes, In this connection however, we again note THAT SUCH ELECTION MUS!C BE 

HELD IN THE SAME AREA THAT ORIGINALLY VOTED DRY." 

It is therefore our opinion that insomuch as Dimmit 

County became '*dry" by reason of a county-wide local option 

election, such county can only become "wet? by a county-wide 

election. No incorporated city of or in said Dimmit County can 

become '*wetrl by virtue of any local option election in such incorporated city, 

Subsequent to the first decision of the appellate 

courts holding as above stated 

e 

the Legislature has on more than 

one occasion amended the statu e, using in the amendment substantially the same language as was in the statute when it was 

so interpreted by the appellate court, The Legisla,ture is presumed to have known the construction placed upon this statute 

by the appellate courts, and that the same language will be 

given the same construction by the appellate courts as was given 

the lan uage 

sew, 80 % 

previous to the amendments, 

21 Ann,Cas. 6561, 

(Lewis v. State, 127 

ihe 

There exists also the presumption 

that if courts0 holdings had been at variance from the intent of the Legislature, a change would have been made in the 

law by the Legislature. (Republic Insurance Co, v. Poole, (Civ. 

App.) 257 S,W, 624, error refused,) 

The learned authors of the authoritative Texas Jurisprudence view this question as we view it, See Tex.Jur.Supp., 

Vol. 6, Set, 42, on page 3999 where :it .is said: 

"Intoxicating liquor, once having been voted 

out, can only be voted back by a majority vote of 

the identical territory which voted liquor out, y D ,,I1 

So long as the County of Dimmit in which Asherton is 

located is dry, no local option election in the City of Asherton 

can change the "dry"' status of Ashe'r'ton. 

Question No, 1: The substance of the first question you propound is whether, under the factual 

situation reflected in your opinion request, it is 

now mandatory on the Commissioners' Court of Dimmit 

County to order and have held a local option electionin the City of Asherton on the issue of whether 

or not the sale of alcoholic liquors will be legalized in said City of Asherton, a petition proper in 

form having been presented to said Commissioners" 

Court by the requisite number of qualified voters 
Hon. Andrew P. Johnson, page 4 @JW-387) 

residing in the City of Asherton asking that such 

election be held. 

Our answer to this Question No. 1 is that, under the 

fact situation presented by you to us, it is neither mandatory 

nor proper that the Commissionerss Court order such election 

held. Asherton, being an incorporated city in the County of 

Dimmit, which county became "dry" by virtue of a county-wide 

election, it would be futile and illegal to hold such election 

in the City of Asherton as the result of such election would 

effect nothing whatever. 

We are not unmindful of the language commanding the 

holding of local option elections upon the presentation of a 

proper petition, as set out in Article 666-32, Vernon's Annotated Penal Code, but the "manifest reason and obvious purpose" 

of the statute just mentioned was to enable the people residing 

in a political subdivision to have the power to determine whether 

intoxicating liquor could be legally sold within its limits by 

holding a local option election so as to determine such question. 

It was not the purpose of the above mentioned statute to demand 

or require the holding of a useless election by a political subdivision which had no power to determine any question by such 

election, To so hold would be to sacrifice the manifest reason 

and obvious purpose of the law to a literal interpretation of 

the words used to express the purpose. This the law does not 

demand nor countenance, 

1109, error ref,), 

(See Kirk v. Morley Bros., 127 S.W. 

(And we have not exhausted the authorities.) 

In all cases the legislative intention controls the 

language used by the Legislature, and in the construction of a 

statute confinement to the literal meaning of the words used is 

not necessary where the strict literal meaning of the words 

would be at variance with the intent expressed by the Legislature. Weber v Ro an, 94 Tex, 62, 68, 5% S,W. 1016, 55 S.W. 

559, 57mshev v0 Galveston, H, & H,R.Co., 16 Tex. 

516; Harris Countv v. Smith, (Civ,App,%l87 S,W. 701. 

It has further been held that words should not be given 

their literal meaning when such would thwart the main purpose of 

the Legislature or would lead to absurdity. m G' 

108 Tex, 167, 188 S.W, 1037; Edwards v* Morton, 92 Tex. 152, 4b 

SW, 792; Winder v0 Kinr: (Com.App,) 1 S,W.2d 587, affirming 297 

S.W, 689; Leslie v. Grifhin, (Civ,App,) 23 S,W.2d 535, reversed 

on other points (Com,App,) 25 S,W,2d 820. 

We advise that the County Commissioners' Court of Dimmit County is certainly not required to expend public money for 

the purpose of holding an illegal election the result of which 

would effectuate nothing. 
Hon. Andrew P. Johnson, page 5 W-387) 

SUMMARY 

The local option election inquired about 

would not be a legal election, if held, and would 

have no effect upon the present dry status of the 

City of Asherton. 

It is not mandatory on the Commissioners' 

Court of Dimmit County to order and have held the 

local option election in the City of Asherton 

which has been petitioned for. 

Very truly yours, 

WILL WILSON 

Attorney Qmera-iof Texas ., 

GPB:wb 

APPROVED: 

OPINION COMMITTEE 

J. C. Davis, Jr., Chairman 

Cecil Rotsch 

Gordon C. Cass 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. Geppert