.,-- .

Gerald C. Mann

Hon. ,A.E. Hickerson County Auditor MontgomeryCounty 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 anopinion of this Department upon the question as herein stated has been received.

Wequote from your letter as follows:

“OnOctober 14, 1940, the Commissioners’ Court of Mont,gomeryCounty sitting in Regular Session received apetition calling for a county wide local. option for or against the sale of beer. This election was called for November2, 1940.

“Myattention has been called to the fact that the following local option elections have been called andheld in the following Justice Precincts of MontgomeryCounty:

“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. May4, 1440. Sept. 28, 1940. would it be

. - legal to paythe expense of the local- optlon election called for county wide November2, 1940?” This Department held in Cpinion No. O-286 that “a local option election maybe held in ajustice precinct to determine whether to prohibit or legalize the sale of beer containing in excess of 4%byweight, regardless of the fact there is within the precinct acity 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 amajority vote favorable to sale of such alcoholic beverage,.-.

Hon. A. 1’

. Hickerson, page 2

the dry status of the city will remain as it nowis, until and unless another election be held within andfor said city changing its status. In such event, that part of the justice’s precinct outside of the limits of such city will bewet to the extent that sales of beer not exceeding 4%alcohol byweight will be legal.”

MontgomeryCounty as awhole is nowwet as far as the sale of beer is concerned. However, there are certain precincts within the county which are dry.

Theelection provisi.ons of the present Ii uor Control Act are contained in Sections 32and 40of Article % 66, Vernon’s Annotated Penal Code, based onparagraph (c) of Section 20, Article AVIof the Constitution. Theconstitutional provision sanctions local option elections in the following olitical subdivisions of a county: (1) the entire county; (27 precinct; (3) anincorporated city or town. ajustice

E,ection 32of the Liquor Control Act provides the commissioners1 court of each county in the State upon its own motion mayorder an election for the whole county; but upon petition of 10per cent of the qualified voters of the county or of anyjustice 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 anycounty, justice precinct, incorporated town or city, no subsequent election upon the sameissue in the samepolitical 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 bewhether or not a county-wide local option election can be legally held for the county onNovember2, 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 ayear prior to the time for which the county-wide local option election is to beheld.

In the case of Griffin v. Tucker, 118 .s.:J:.635, the SupremeCourt held a larger subdivision might hold an election irrespective of the status of the smaller subdivisions therein. ;yn;at case local option hadprevailed in ajusticels prebut an election was subsequently called in a commissioners’ &ecinct which embraced within its territorial limits the justice’s precinct. TheCourt said:Hon. A. E. Hickerson, page 3

"It is true that, whenthe prohibitory rule is put in force it cannot be repealed or displaced except ii ythe 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. Wesee 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 maybe taken awaybythe action of part of its territory constituting a smaller one.
. . .'I In alocal option "stock law" election it was held a commissioners' precinct included a city which hadtheretofore adopted the ":ztoCklaw" 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 belegally held notwithstanding the fact that justice precincts have held similar elections within oneyear prior to the county-wide election andthtit the county can legally pay the expense of such election.
tieare 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

OFTUAS

&PRoVE;DOCT25, 1940 /s/ Gerald C. i%nn ATTORNEY

GENUUU

OFTEXAS APPROVEiD:

OPINIONCOMMITTEE BY: BWB

. CH,AIRMAN By/s/ Ardell Williams Ardell Williams, Assistant

AW:BBB:wb ' ENCLOSURE