Honorable William B. Sullivant Opinion No. C-715 

County Attorney 

Cooke County Re: Under the submitted 

Gainesville, Texas facts, whether justice 

precincts 1, 4, 5 and 

8 In Cooke County, Texa.s 

are wet or dry with regards to the sale of 

Dear Mr. Sulllvant: beer. 

Your letter requesting an opinion of this office 

reads, in part, as follows: 

"A question has arisen In Cooke County, 

concerning the legality of the sale of alcoholic beverage, to-wit: beer, In certain 

precincts in our County. The facts are as 

follows: 

"In 1910 all of Cooke County was dry. 

"On April 28, 1934, Justice Precincts 4, 

5, and 8 vot.ed~ In Local Option elections to 

go wet so far a.s pertains to the sale of beer 

3.2 percent alcohol by weight, On the same 

date, a County wide Local Option election 

was held and the entire County voted dry. 

"On July 20, 1935, Justice Court Precinct 1 in Cooke County, Texas, held a Local 

Option election and voted wet for the purposes of selling 3.2 beer. 

"On February 8, 1936, a County wide Local 

Option election was held wherein the question 

was whether or not it would be legal to sell 

beer with an alcoholic content of 4$ b 

The results of this election were 1,67 8 

weight. 

against 

allowing the sale of the beer, and 1,676 for. 

On May 30, 1936, a County wide Local Option 

election was held in Cooke County wherein the 

question was whether or not It would be legal 

to sell alcoholic beverage with an alcohol 

-3452- 
. 

Honorable William B. Sullivant, Page 2 (C-715) 

content of not more than 14% by volume. The 

County voted dry in this election. On each 

of the following dates, March 30, 1937, July 

23, 1938, August 19, 1939, County wide Local 

Option elections were held in Cooke County, 

Texas, and the proposition wa.s whether or not 

It would be legal to sell'beer in Cooke County 

with an alcoholic content not to exceed 9% by 

weight. 

"Since August 19, 1939, there have been no 

further Local Option elections that would In 

my opinion have any bearing on my question. 

; . . 

'My question Is as follows: At this time, 

are Justice Preclnts 1, 4, 5, and 8 In Cooke 

County, Texas, wet or d,ry with regards to the 

sale of 3.2 beer in view of the above stated 

facts? In neither of the Precinct elections 

in Precincts 1, 4, 5, and 8, was it stated 

whether or not the election was for the on or 

off premises, sale of beer. I assume that If 

the people voted to allow the sale of beer and 

did not specify OA or off premlses, then the 

sale of beer either on or off premises would 

be legal. If you can clarify this point for 

me, I would also appreciate It very much." 

You did not advise us as to whether in the County 

wide elections held on March 30, 1937, July 23, 1938 and 

August 19, 1939, the County voted dry or wet. We assume 

that the last County wide election resulted in a dry vote, 

otherwise you would not have had an occasion to request 

our opinion. 

The Supreme Court of Texas in Walling v. King, 87 S. 

W.2d 1074 (1935), and Coker v. Kmelcim S W 2d 1676 (1935), 

held that when a county has voted prohibition, 

e 

until prohibition is repealed by a vote of the entire county, a justice 

precinct, town or city may not hold a local option election 

to permit the sale of 3.2% beer. The Commission of Appeals 

opinions above were adopted by the Supreme Court and based its 

decision upon Acts 1933, Chapter 116; Constitution, Article 

16, Section 20, as amended In 1953; Article 16, Section 20, 

adopted In 1919. 

Article 16, Section 20, of the Constitution of Texas 

was amended on August 24, 1935, and Article 666-32, Vernon's 

Penal Code, was enacted to carry the provisions of Section 

-3&3- 
Honorable William B, Sulllvant, Page 3 (C-715) 

20 into effect. The Court in Myers v, Martinez, 320 S.W.2d 

862 (Tex.Civ.Ano. 1959. error ref. n.r.e,). construed the 

1935‘constltutibnal-amendment and Article'666-32 and held 

that the Legislature, in submitting the constitutional amendment, and the people, in adopting the 1935 amendment, intended that counties, justice's precincts and cities should 

be on Ann equal footing and that by complying with the provisions of the law any of them might hold an election to 

legalize or prohibit the sale of alcoholic beverages; and 

that a city located within a dry county may vote to legalize 

the sale of alcoholic beverages within the corporate limits 

of the city, 

In Mayhew v, Garrett, 90 S.W.2d 1104 (Tex.Civ.App. 

1936, error ref.) the Court held that the constitutional 

amendement (Art, i6, S 20 of August 24, 1935, and Vernon's 

Penal Code, Arts. 667-l(b 666-23 did not purport to act 

retroactively to validate-or ratify elections illegally held 

in justice precincts, towns or cities located wholly within 

drv counties under the constitutional amendment of 19??. 

Article 16, Section 20 of the TexasConstitution, This ---- 

opinion in conjunction with the and Coker v. 

Kmelcik opinions, supra, clear1 election held 

orior to the constitutional amendment of 1935 in a justice 

precinct, town or city located wholly within-a dry county is 

void. 

In applying the above decisions to the facts submitted in your opinion request, It is the opinion of this 

office that Cooke County was a dry county on April 28, 1934, 

and on July 20, 1935. Therefore, since the elections were 

held in Justice Precincts 1, 4, 5, and 8 prior to the 1935 

constitutional amendment, such elections were unauthorized 

and void, and do not legalize the sale of beer in said precincts. 

SUMMARY 

In dry counties, local option elections In justice precincts and incorporated 

cities and towns, held prior to the 1935 

amendment of Section 20 of Article 16 of the 

Texas Constitution are void elections, and 

do not legalize the sale of beer therein. 

Yours very truly, 

WAGGONER CARR 

-3454- 

Attorney General of Texas 
Honorable William B. Sullivant, Page 4 (C-715) 

Assistant Attorney General 

DHC/dt 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Lonny F. Zwlener 

Mary K. Wall 

John Reeves 

Sam Kelley 

APPROVED FOR THE ATTORNEY GENERAL 

By T. B. Wright 

-3&5-