.,-- . 

Gerald C. Mann 

Hon. ,A. E. Hickerson 

County Auditor 

Montgomery County 

Conroe, Texas 

Dear Sir: 

Opinion No. O-2834 

Re: It would be legal to pay the 

expense of a county-wide local 

option election mentioned herein. 

Your letter of October 17, 1940, requesting an opinion of this Department upon the question as herein stated has 

been received. 

We quote from your letter as follows: 

“On October 14, 1940, the Commissioners’ 

Court of Mont,gomery County sitting in Regular 

Session received a petition calling for a 

county wide local. option for or against the 

sale of beer. This election was called for 

November 2, 1940. 

“My attention has been called to the fact 

that the following local option elections have 

been called and held in the following Just ice 

Precincts of Montgomery County: 

“J. P. Precinct 4, Nlection held 

J. P, Precinct 8, Xlection held 

J. P. Precinct.2, mlection held 

“In view of the above elections? 

April 27 1940. 

May 4, 1440. 

Sept. 28, 1940. 

would it be 

. - legal to pay the expense of the local- optlon election called for county wide November 2, 1940?” 

This Department held in Cpinion No. O-286 that “a 

local option election may be held in a justice precinct to 

determine whether to prohibit or legalize the sale of beer 

containing in excess of 4% by weight, regardless of the fact 

there is within the precinct a city which voted less than one 

year ago to prohibit the sale of’ this type of beer. If the 

election results in a majority of the voters of the entire 

precinct favoring the prohibition, the entire justice precinct 

will be dry insofar as the type of beverage is concerned; if 

a majority vote favorable to sale of such alcoholic beverage, 
.-. 

Hon. A. 1’. Hickerson, page 2 

the dry status of the city will remain as it now is, until and 

unless another election be held within and for said city changing its status. In such event, that part of the justice’s precinct outside of the limits of such city will be wet to the 

extent that sales of beer not exceeding 4% alcohol by weight 

will be legal.” 

Montgomery County as a whole is now wet as far as the 

sale of beer is concerned. However, there are certain precincts 

within the county which are dry. 

The election provisi.ons of the present Ii uor Control 

Act are contained in Sections 32 and 40 of Article % 66, Vernon’s 

Annotated Penal Code, based on paragraph (c) of Section 20, 

Article AVI of the Constitution. The constitutional provision 

sanctions local option elections in the following olitical subdivisions of a county: (1) the entire county; (27 

precinct; (3) an incorporated city or town. 

a justice 

E,ection 32 of the Liquor Control Act provides the 

commissioners1 court of each county in the State upon its own 

motion may order an election for the whole county; but upon 

petition of 10 per cent of the qualified voters of the county 

or of any justice precinct, city or town, it shall order such 

election for such political subdivision. Provided, however, 

after the first local option election held as provided in this 

Act in any county, justice precinct, incorporated town or city, 

no subsequent election upon the same issue in the same political subdivision shall be held within one (1) year from the 

date of the preceding local option election in said county or 

said political subdivision of said county. 

Xe construe your question to be whether or not a 

county-wide local option election can be legally held for the 

county on November 2, 1940, and if the county can legally pay 

the expense of such an election since certain justice precincts 

in the county have held similar elections within the respective 

precincts less than a year prior to the time for which the 

county-wide local option election is to be held. 

In the case of Griffin v. Tucker, 118 .s.:J:. 635, the 

Supreme Court held a larger subdivision might hold an election 

irrespective of the status of the smaller subdivisions therein. 

;yn;at case local option had prevailed in a justicels prebut an election was subsequently called in a commissioners’ &ecinct which embraced within its territorial limits 

the justice’s precinct. The Court said: 
Hon. A. E. Hickerson, page 3 

"It is true that, when the prohibitory 

rule is put in force it cannot be repealed 

or displaced except ii y the vote of the district which adopted it. It is quite as true 

that an election however resulting, in a 

larger including subdivision, has no such effeet. If it results in the defeat of prohibition, the rule remains unaffected in the 

territory that has before adopted. If it results in the adoption of prohibition, that 

rule is extended to the whole, where before 

it was enforced only, in part of the territory. We see nothing in the statutes 

or the ~o&~itution by force of which the 

right of a subdivision to have the election 

thrown out throughout its extent may be taken 

away by the action of part of its territory 

constituting a smaller one. . . .'I 

In a local option "stock law" election it was held a 

commissioners' precinct included a city which had theretofore 

adopted the ":ztoCk law" did not render the election void. Lambert v. .:;c.ur3.oc.:,, 285 S.W. 679; Bishop v. State, 167 S.':!. 363. 

In view of the foregoing authorities you are respectfully advised that it is the opinion of this Department that the 

above mentioned county-wide local option election can be legally 

held notwithstanding the fact that justice precincts have held 

similar elections within one year prior to the county-wide election and thtit the county can legally pay the expense of such 

election. 

tie are enclosing herewith a 

O-286, above referred to. 

Trusting that the foregoing 

quiry, we are 

copy of our Opinion No. 

fully answers your inYours very truly 

ATTORNEY GENERAL OF TUAS 

&PRoVE;D OCT 25, 1940 

/s/ Gerald C. i%nn 

ATTORNEY GENUUU OF TEXAS 

APPROVEiD: OPINION COMMITTEE 

BY: BWB . CH,AIRMAN 

By /s/ Ardell Williams 

Ardell Williams, Assistant 

AW:BBB:wb ' 

ENCLOSURE