HonorableWilliam B. Sullivant OpinionNo. C-715

CountyAttorney 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 letterrequestingan opinion of this office reads, in part, as follows:

"A questionhas arisen In Cooke County, concerning the legality of the sale of alcoholicbeverage, to-wit: beer, In certain precincts in our County. The facts are as follows:
"In 1910 all of Cooke Countywas dry.
"OnApril 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 3.2percent alcohol by weight, On the same date, a Countywide 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 electionand voted wet for the purposes of selling 3.2 beer.
"On February 8, 1936,a Countywide Local Option electionwas heldwherein the question was whether or not it would be legal to sell beer with an alcoholic content of 4$ b The results of this electionwere 1,67 8 weight. against allowing the sale of the beer, and 1,676 for. On May 30, 1936, a Countywide Local Option electionwas held in Cooke Countywherein the questionwas whether or not It would be legal to sell alcoholicbeverage with an alcohol -3452-.

HonorableWilliam 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, Countywide Local Option electionswere held in Cooke County, Texas, and the propositionwa.s whether or not It would be legal to sell'beer in Cooke County with an alcoholic contentnot to exceed 9% by weight. "SinceAugust 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 electionwas 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 premiseswould 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 electionsheld on March 30, 1937, July 23, 1938 and August 19, 1939, the Countyvoted dry or wet. We assume that the last Countywide electionresulted in a dry vote, otherwiseyou would not have had an occasion to request our opinion.

The Supreme Court of Texas inWalling v. King, 87 S. W.2d 1074 (1935),and Coker v. Kmelcim S W 2d 1676 (1935), held that when a countyhas voted prohibition, e until prohibition is repealedby a vote of the entire county,a justice precinct, town or citymay not hold a local option election to permit the sale of 3.2%beer. The Commissionof Appeals opinions above were adoptedby the Supreme Court and based its decision uponActs 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 Constitutionof Texas was amended on August 24, 1935,and Article 666-32, Vernon's Penal Code,was enacted to carry the provisionsof 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-amendmentand Article'666-32and held that the Legislature, in submitting the constitutionalamendment, and the people, in adopting the 1935 amendment, intended that counties, justice'sprecincts and cities should be on Annequal footing and that by complyingwith 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 locatedwithin a dry countymay vote to legalize the sale of alcoholic beverageswithin 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,andVernon's Penal Code, Arts. 667-l(b 666-23 did not purport to act retroactively to validate-orratify elections illegallyheld in justice precincts, towns or cities locatedwholly within drv counties under the constitutionalamendment of 19??. Article 16, Section 20 of the TexasConstitution, ---- This opinion in conjunctionwith the and Coker v. Kmelcik opinions, supra, clear1 election held orior to the constitutionalamendment of 1935 in a justice precinct, town or city locatedwholly within-adry 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 Countywas a dry county on April 28, 1934, and on July 20, 1935. Therefore, since the electionswere held in Justice Precincts 1, 4, 5, and 8 prior to the 1935 constitutionalamendment, such elections were unauthorized and void, and do not legalizethe sale of beer in saidprecincts.
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 Constitutionare void elections,and do not legalize the sale of beer therein.
Yours very truly,
WAGGONER CARR -3454- Attorney General of TexasHonorableWilliam B. Sullivant,Page 4 (C-715)

AssistantAttorney 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

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