Gerald C. Mann AEJSTKW aa.T-s ED

Hon. 0. Kennedy County Attorney Bee County Beeville, Texas Dear Sir: Opinion No. 04658 Re: Sufficiency of petition requesting local option election.

This will acknowledge receipt of your letter of November 

### 6,1939,in which you seek the opinion of this Department on the question of whether or not a proposed local option petition, a copy of which is attached to your letter, is sufficient.

You advise that Bee County Is *‘wet” and that the sale of all liquors, including beer andwine, is nowlegal and that an election is to be held to determine whether such county is to remain nwetN8.

You further advise that the “dry forces in this county want to present to the commissioners’ court a petition to order a county-wide election to submit to the voters the question of whether or not the sale of all liquors should be prohibited.” Weassume that such proposal contemplates the inclusion of beer, and it Is upon this assumption that this opfnion is based.

Areview of the definitions of llalcohollc beverage‘I and 811iquorncontained in the Texas Liquor Control Act reveals the necessfty of limiting the opinion to the assumption just made.

t*Alcoholic beverage” as defined by the Act “shall meanalcohol and any beverage containing more than one-half of one per cent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted.”

“Liquor” as defined by the Act, “shall meanany alcoholic beverage containing alcohol in excess of four per centum by weight* unless otherwise indicated.. Proof that an alcoholfc beverage is alcohol spirits of wine, whiskey, liquor, wine brandy, gin, tequilia, mescal harreteago, shall be prima facie evidence i habernero or hat the sameis liquor as herein defined.‘”Hon. 0. Kennedy, page 2 . ..-.

Thus, it Is clearly seen that alcoholic beverage all other alcoholic drinks includes liquor, beer, wine &d containing alcohol of more than volume. one-half of one per cent by

The proposed petition reads:

“LOCALOPTION

ELECTION

PETITION

“TOTREHONORABLE COMMISSIONERS’

COURT OF BEECOUNTY,

TEKAS:

“We, the undersigned, constituting at least ten per cent (10%) of the qualified voters of Bee County, Texas, according to the vote for Governor of the State of Texas in the general election next preceding this petition, respectfully petition your honorable body to order an election in Bee County, Texas, at which election there shall be submitted te following question:

“!For prohibiting the sale of eJlalcoholic liquors. V UIAgainst prohibiting the sale of all alcoholic liquors.’ Respectfully submitted,” Aclose examination of the Texas Liquor Control Act does not reveal a form to be used for the petition to the commissioners’ court.

Section 32 of such Act provides in part:

“The Commissioners Court of each county in the State upon its ownmotion mayorder an election to be held by the qualified voters in said county, to determine whether or not the sale of liquors shall be prohibited or legalized in such county, and such Court shall order a local option election whenever petitioned to do so by as many as ten (10) per cent of the qualified voters of said county, or of anyjustice precinct, city or town, taking the votes for Governor at the last preceding general election as the basis for determining the qualified voters in any such county, or political subdivision....@. a,. Hon. 0. Kennedy, page 

### 3

Section 40 of the Act provides that the commissioners’ court may, as provided in Section 32, supra, order an election for the purpose of determining whether alcoholic beverages of various types maybe legalized or prohibited. The second provision of Section 40 of the Act reads:

“In areas where the sale of all alcoholic beverages has been legalized one or more of the following issues shall be submitted in any prohibitory election: I8 Under such orovision there. appear several propositions that may be submitted, amongwhich is sub-section (f) and reads:

“‘For prohibiting the sale of all alcoholic beverages’ and ‘Against prohibiting the sale of all alcoholic beverages. 111 Looking to the form of petition presented as hereinabove quoted, we believe the sameto contain the requisites pointed out in Section 32, supra, with exception that the word

“anI1appearing in line 5of the body of the petition should be changed to “art after read I(... and followed by “local option”, so as to hererespectfully petition your honorable body to order a local option election.. ..w Welikewise believe the propositions to be submitted, bearing in mindthe assumption upon which this opinion is based, should read:

“For prohibiting the sale of all alcoholic beverages” and “Against prohibiting the sale of all alcoholic beverages. *‘ Trusting that we have satisfactorily answered your inquiry, we are APPROVED

NOV

### 17,1939 /s/ Gerald C. Mann ATTORNEY

GNNNRAL

OFTEXAS Very truly yours ATTORNEY

GENERAL

OFTEXAS BY/s/ Lloyd Armstrong Lloyd Armstrong. Assistant APPROVED:

OPINIONCOMMITTNN BY: BWB,CHAIRMAN LA:AW:wb