                               THE                 A~OIRNEY   GENERAL
                                                      ow TEXAS
  aoEN    L     amA.
                                                     AX~STIN. TEXAU                      T'S711
A-RNEY         OErummAL
                                                                  July   10,      1973
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         Honorable            William          J.    Benardino                            Opinion        No.     H-      59
         County        Attorney
         Montgomery                County                                                 Re:     Local        option         election


         Dear      Mr.        Benardino:


                   You have            submitted            to us the original               request         you      received          from
         the Honorable                Lynn         Coker,       County        Judge       of Montgomery                  County,for         your
         opinion       concerning              local     option      elections;           your      response          to Judge           Coker;
         and your        authorities                submitted        to us with           your     request         for     our    opinion.


                   Based           on these         instruments              it is our      understanding                that     Montgomery
         County        is divided            into four         precincts.


                   Precinct            1 is wet for            the legal       sale      of all     alcoholic            beverages,          in-
         cluding       mixed         beverages,             the     most      permissive            status       allowed.             [Article
         666-40 (b) (7),               V. T. P. C. ]


                   Precinct            No.     2 is wet for            the     sale      of beer.         [Article         666-40        (b) (2)].
         On August            5,     1972,     an election           a.as     held       under     Article         666-40         (b) (7) for      or
         against       the legal            sale     of all     alcoholic         beverages             including         mixed        beverages.
         The    majority             cast    their      votes       against       the proposition.


                   The        only     information             given     with      reference            to Precinct             No.     3 is that
         on April        5,    1972,         an election          was      held       in the incorporated                  city    of Magnolia
         under     Article           666-40,           $ (b) (I),      for    or against          the legal         sale       of beer      foroff-
         premises         consumption                  only,      with a majority                of the voters             casting       their     votes
         against       the propostition.                    However,            Precinct          No.     3 is wet for            the legal        sale
         of all    mixed           beverages.


                   We have            no information                concerning            Precinct         No.      4.




                                                                         p. 250
Honorable          William            J.     Benardino,               page       2 (H-59)




          Apparently            petitions            have        been        circulated              (1) in Montgomery                    County
requesting         the Commissioners                         Court           to call          a county-wide                election            pursuant
to Article         666-40         (b) (7) and pursuant                          to (2) in Precinct                   No.        3 for    the     same
purpose.           Your      questions              concern            whether           certain         precinct              voters         will   be
able    to vote      in the county-wide                      election             and the effect                of the election                 on the
local     option     statuts          of particular               governmental                      subdivisions                should        the legal-
ization     issue        pass        or fail.


          Question          No.       1:


                                  “Due        to the fact             that       Justice         Precinct            No.        2
                    voted         on this        same        issue           less       than a year             ago,       would
                    the voters               of Precinct               No.       2 be able            to vote        in the
                    county-wide                 election?             ”


          Which       political             subdivisions               can hold           local        option        elections          is determined
by Article         16,    5 20,        Constitution               of Texas,              as interpreted                 in Myers               v. Martinez,
320     S. W.    2d 862,             (Tex.     Civ.App.,                  San Antonio,                1959),     err.          ref.,     n. r. e.,        326
S. W.     2d 171 (Tex.               1959),      where           the       Court        of Civil        Appeals            said:

                     0 . .       .    counties,            justice’s             precincts            and incorporated
                     cities          or towns            should        be on equal               footing,        and that by
                     complying               with        the provisions                 of the law             either          of them
                     might           hold     an election              at any time                  to either        ‘legalize’
                     or     ‘prohibit’          the       sale     of alcoholic                 beverages,              in keeping
                     with the provisions                      of Sec.             40,     art.        666,     Vernon’s                Ann.
                     Penal           Code.      .    .    . ” (320          S. W.       2d at 866).


          The      only     limitation              is that an election                       for    the same           purpose           in the
same      area      must        not be held               oftener          than      once        a year        as is provided                   by
Article      666-32         which           reads:


                     “No        subsequent               election           upon        the    same          issue      shall
                     be held           within        one    year           from      the date           of the        last
                     preceding               local       option           election       in any         county,
                     justice          precinct,            or incorporated                     city     or town.           ”




                                                                 p.       251
Honorable          William           J.        Benardino,                 page      3 (H-59)




           There        is no exception                   either            constitutional             or     statutory          that pro-
hibits     voters        of a precinct               who within                   the    last    year        cast    their       votes
against      the legalization                   issue       to vote            on the same              issue        in a county-wide
local     option        election.              In fact,         if only        a portion           of the county              were        per-
mitted      to vote         in the county-wide                            election,        such     election          would        probably
be void.          See     Patton          v.    Texas           Liquor            Control        Board,         293       S. W.      2d 99
(Tex.     Civ.App.           1956,           error      ref.,             n. r. e.).


           Thus,        under       the plain             language                of the Texas            Constitution             and Statutes,
the qualified            voters         resident           in Precinct                  No.     2 are        entitled       to vote        in a
county-wide             local     option           election               along     with the other              qualified          voters         of
the county.


          A,ttorney          General            Opinions              No.         WW-945          (1960)       and     WW-976             (1960)
support      the proposition                    that      all    eligible           voters        in Precinct              No.     2 would         be
able     to vote      in a county-wide                     election               even    though        they        voted     on the same
issue     less     than      one      year         ago.


          Question          No.         2:


                                  “If        the election                 on a county-wide                  basis     carries
                    for      the legal             sale     of all           alcoholic          beverages             including
                      mixed         beverages,                  would         Precinct           No.        2 be wet for           all
                    purposes                 or would           the Attorney                  General’s             Opinion       No.
                      286    apply           and     Precinct               No.     2 remain            as    is?    IV


           The     term       “local           option”          is    well        understood            by the voters              of Texas.
A local      option         election           is a clear,                 valid      declaration             of the will         of the voters.
The      Supreme          Court         in Houchins                  v.     Plainos,            110 S. W.       2d 549(Tex.I,937),held
that     the Constitution                 provides              the exclusive                 means         by which         the issue            of
prohibition         or      legalization               of alcoholic                 beverages           should         be decided.


           Under        Texas        case        law,       a local            option         law is        enforced         until       it has
been      voted     out by a majority                      of the voters                  of the territory                where          the law
was      originally         adopted.               Myers             v.     Martinez,            supra;        Attorney           General’s
Opinion       C-681         (1966);          WW-945             (1960):           WW-976           (1960).




                                                                      p.      252
Honorable         William            J.     Benardino,              page        4 (H-59)




          However,            under         the Constitution                    and local          option       statutes,        a negative
vote     on a legalization                 issue     has      no effect.               The     local       option       status      of the
governmental                subdivision            remains              the same          as it was          before       the election.
See    Attorney         General’s             Opinion        No.          WW-1104           (1961).         It takes        a positive
vote     in either        a legalization              or     prohibitory               election        to establish           a local
option      statuts       that can          not be changed                  subsequently               except        by a majority
of the voters          in the        same         territory.               The     only      prohibitory             effect      authorized
by statute        is that       no subsequent                 election            upon the          same        issue     in the same
political      subdivision                shall    be held          within        one year           from       the date       of the last
preceding         local       option        election,         Article             666-32,          Vernon’s           Texas        Penal     Code.


          In Fox       v.     Burgess,             302     S. W.         2d 405       (Tex.        1957),       the Supreme            Court
held     that a vote          on issue            ‘E’ against            the legal          sale     of all      alcoholic         beverages
would       not preclude            another          election            within       the     same       year       on a different           issue.


          Further,           Article         666-40         (i).        provides:


                      “No     local        option        election         may       affect      the      sale       of mixed
                   beverages                unless        the proposition                   specifically            mentions
                      mixed        beverages.               .In         an’y     legalization            or prohibitory
                   local        option        election         where            any    shade        or aspect           of the
                   issue           submitted          involves            the     sale      of mixed          beverages,
                   any other               type     or    classification                 of alcoholic           beverages
                   which was legalized                     prior         to such          election         shall     remain
                   legalized              without         regard          to the      outcome            of said        election
                   on the question                   of mixed             beverages.           ”


          Since    there           is no local           option          status       of Precinct            No.      2 which        would
prohibit      the legalization                of all       alcoholic             beverages            including          mixed       bever-
ages     on a county-wide                   basis,        the local             option      status       of Precinct           No.     2
would       be the same             as the county              until       a different             result       was     established
by a subsequent               precinct            election         should         there       ever       be one.


          Question           No.     3:


                                   “If the Precinct                 No.        3 election          was      first     and
                      carried         and the county-wide                         election         last,      what       would
                    be the status                 of Precinct              No.      3?”




                                                                   p.     253
Honorable            William           J.    Benardino,              page       5 (H-59)




           Since       the issue            of the legalization                 of all         alcoholic            drinks        including
mixed      drinks,            Article         666-40         (b) (7),       has     not been            previously             presented
in Precinct             3 and assuming                 all    the statutory               and constitutional                      provisions
are     complied          with,        Precinct          No.     3 would            take        on new        local        option      status
independent             of the county.                 As     discussed            in Question                No.     I,    the voters         in
Precinct         No.      3 would           be entitled         to vote           in the county-wide                       election.         The
county-wide             election            is constitutionally                 and      statutorily            authorized             and
should      the election               presenting            the legalization                   issue     containing              Article
666-40         (b) (7) carry,               the precinct             would        take     on the         status           of the county
until     the qualified             voters       of Precinct               3 elect        to establish               a different          status.


          Question            No.      4:


                                    “If either         or both        elections            carry,         will       the
                       incorporated              city        of Magnolia            be wet for            everything
                       except        beer      off premises?                ”


          As     discussed             under      Question            2,    a negative             vote       in a legalization                election
establishes            no local         option      status       nor        does        it have         any    prohibitory             effect.        Just
as    Precinct          No.      2 and        3 would         take    on the         status        of the county,                 there      being        no
binding        local     option         status     prohibiting              such        an effect,             so would           the city.          Of
course,         the city         in a subsequent                election           could         change        its    local       option      status
imposed          by the county                election        by electing               to do so by a majority                       vote.


          Question            No.      5:


                                    “If the election             on a county-wide                       basis        fails,
                       would        Precinct           No.     1 be dry           for    all     purposes?             ”


          Again,         as previously                 discussed,             the       local     option        status        of the county,
justice        precincts          or    incorporated              city      or town             can only        be changed             by an affirm-
ative     vote       of the majority              of the people                 within         the political               subdivision.          A “no”
vote     has     no effect          and the county               and justice              precinct            and city         would        retain        the
same       local       option       status       existing        before           the election.                 The        only    way      Precinct           i’s
local     option        sfatus,         “wet     for     the legal          sale        of all     alcoholic               beverages         inc,luding
mixed       beverages,              ” could       be changed               would         be for         the voters            in that precinct              to
change         the     status.




                                                                 p.     254
Honorable          William         J.     Bena*di*o,         page        6 (H-59)




        It has       been        called     to our     attention          that    in Attorney          General      Opinion
No.    H-34        (1973)    it was       stated,      contrary           to what      we have         said    above,      that
a negative         vote     on a “for”         election          will    render       the previously            wet areas
dry.    We were             incorrect        and to that extent                  Opinion      H-34     is hereby         modified.


                                                         SUMMA,RY


                                 Where       there     is a county-wide                local     option
                     election,          it is unimportant               that     certain      precincts
                     had had        such     elections           within     one year.           All areas
                     of the county           participate           in the election.              A negative
                     vote     on the election           would           not affect     those      areas        of
                     the county           which      were        already       wet.     An affirmative
                     vote     would        render      the entire          county      wet.     However,
                     the voters         of any proper             area     could      vote     their    area
                     dry    as    a subsequent            election         for    that purpose.
                                                                            Very      truly     yours,




                                                                            Attorney          General         of Texas


APPR(bVED:




DAVID         M.    KENDALL,                Chairman
Opinion       Committee




                                                            p.    255
