             THE        AVTORNEY                GENERAL
                          OF’ TEXAS



                                  October   16. 1973



Mr. Jerry L. Calhoon                            Opinion   No.   H-   130
County Attorney
Anderson County                                 Re:    Whether area annexed
Palestine, Texas 75801                                 subsequent to local option
                                                       election becomes    “wet”
                                                       upon the holding of another
Dear   Mr.   Calhoon:                                  local option election

        Your request for our    opinion involves the local option laws of the
State of Texas.     According   to the facts which you have given us, a local
option election was held on     April 7, 1962, in the City of Palestine  on a
petition to legalize the sale    of alcohol for off-premises  consumption.
The city voted “wet” in that     election.

       In Texas,  the ballot proposition   in a local option liquor election is
always the same whether the election is to legalize       or to prohibit liquor
sales.   Article 666-40,   V. T. P. C.   The effect of the vote is determined
by the reason for it -- that is, by whether it is an election to legalize     the
sale of liquor or an election to prohibit it.

       Subsequently,   on August 13. 1962, a “dry” area was annexed by the
City of Palestine.    On November    16, 1966, a petition for a local option
election to prohibit the sale of alcoholic   beverages    for off-premises  con-
sumption was filed in exactly the same language as that involved in the
1962 election.   The election was held January 7. 1967. and the majority
of the voters,  including those of the annexed area, voted “for” the legal
sale of all alcoholic beverages   for off-premises     consumption    only.

      Your question is whether,  once annexed, the dry area in question
became “wet” by the local option election of January 7, 1967.

      It is the law of this State that annexation does not change the local
option status of the area annexed.     A dry area annexed by a wet city re-
mains dry.    Houchins v. Plainos,    110 S. W. 2d 549 (Tex. 1937).




                                     p.   626
The Honorable    Jerry   L.   Calhoon,    page 2      (H-130)   ’




       The situation you present is similar to one involved in Attorney
General Opinion M-335 (1969), with one important distinction.          There,
the vote after annexation was one for the legalization      of the sale of alco-
holic beverages.      Here,  it was one for the prohibition o’f such sale.    This
is a distinction which cannot be ignored.      It is required that those petition-
ing for the election indicate whether it is to be one to legalize     or to pro-
hibit the sale of alcoholic beverages.      See Article 666-32    and Article 666-
40, Vernon’s    Texas Penal Code, setting out the various propositions         which
may be submitted.       An “against” vote in a legalizing   election does not have
a prohibitory   effect and similarly   a “for” vote in a prohibitory   election has
no legalizing   effect.  Attorney General Opinions H-59 (1973),       WW-1104
(19611.

       Since, as you state, the election in January of 1967 was one to pro-
hibit the sale of alcoholic beverages   for off-premises    consumption,   and
the voters voted -for such consumption,    the election was without any effect
and could not affect the status of any area.     Consequently,   the annexed area
did not become wet by reason of the election on January 7. 1967.

                                    SUMMARY

                    Under the local option laws, the status of an area
             from dry to wet can only be accomplished        by a “for”
             vote on a legalizing   proposition  and, similarly,    trans-
             formation of a wet area to a dry area can only be accom-
             plished by an “against”     vote on a prohibitory   proposition.
             A city prohibitory   election which does not result in a vote
             unfavorable  to the sale of alcoholic beverages      has no effect
             at all upon the status of the city or any part of it.

                                               Very   truly yours,
                                              A




                                                      L. HILL
                                               Attorney General      of Texas




                                         p.   627
    .
,


        The Honorable     Jerry   L.   Calhoon,   page    3    (H-130)




        APP$O’+D:




        Opinion     Committee




                                                   p.    620
