ATTORSICX-       GlcX~lxAr.


                                     August 25, 1969


             Honorable William M. Day               Opinion No. M-457
             County Attorney of Calhoun County
             Calhoun County Courthouse              Re:   Status of sale or
             Port Lavaca, Texas 77979                     dispensing of alco-
                                                          holic beverages
                                                          Precinct No. 3 of
                                                          Calhoun County, Texas,
                                                          under local option
             Dear Mr. Day:                                elections.
                  You requested an opinion from this Office concerning the
             captioned question and furnished us with a history of local
             option elections in Calhoun County supplied by the County Clerk
             of Calhoun County. A letter submitted by you subsequent to
             your original request states a6 follows:
                       "I am requesting that you base your opinion
                  upon the assumption that all of these local option
                  elections as stated in the County Clerk's letter,
                  are legal and valid."
                  For conciseness we have abstracted and numbered the
             numerous elections and shall hereinafter refer to each by
             its designated number. The dates of the filing of the peti-
             tions and canvassing of returns have been deleted. In all
             instances hereinafter, "area" will designate the precinct(s)
             within or the County of Calhoun, "date" will refer to the
             election date, and 'vote" will refer to the results of said
             election.
                  The elections held in Calhoun County or precinct(s)
             thereof furnished are as follows:
                   (1) Area:   Justice Precinct No. 3
                       Date:   January 3, 1914
                       Vote:   For Prohibition - 35
                               Against Prohibition - 0
                   (2) Area:   County of Calhoun
                       Date:   October 12, 1915
                       Vote:   For Prohibition - 280
                               Against Prohibition - 279
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Honorable William M. Day,     page 2   (M-457)


     (3)   Area:   County of Calhoun (countywide)
           Date:   December 20, 1915
           Vote:   For Prohibition - 296
                   Against Prohibition - 322
     (4) Area:     Justice Precincts Nos. 1, 3 and 5
         Date:     December 14, 1916
         Vote:     For Prohibition - 300
                   Against Prohibition - 274
     (5)   Area:   County of Calhoun (countywide)
           Date:   October 28, 1933
           Vote:   To Permit Sale of Beer - 267
                   To Prohibit Sale of Beer - 11.8
     (6) Area:     Justice Precincts Nos. 1, 3 and 5
         Date:     October 28, 1933
         Vote:     To Permit Sale of Beer - 195
                   To Prohibit Sale of Beer - 94
     (7)   Area:   County of Calhoun (countywide)
           Date:   December 28, 1935
           Vote:   For Legalizing Sale of All Liquors - 192
                   Against Legalizing Sale of All
                   Liquors - 97
     (8)   Area:   Justice Precincts Nos. 1, 3 and 5
           Date:   December 28, 1935
           Vote:   For Legalizing Sale of All Liquors - 124
                   Against Legalizing Sale of All
                   Liquors - 65
     (9) Area:     Justice Precinct No. 3
         Date:     July 9, 1960
         Vote:     For the Legal Sale of Beer for Off-
                   Premises Consumption Only - 180
                   Against the Legal Sale of Beer for Off-
                   Premises Consumption Only - 238
    (10) Area:     Justice Precinct No. 3
         Date:     June 6, 1964
         Vote:     For the Legal Sale of Beer for Off-
                   Premises Consumption Only - 194
                   Against the Legal Sale of Beer for Off-
                   Premises Consumption Only - 278




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Honorable William M. Day,    page 3   (M-457)



      (11) Area:   Justice Precinct No. 3
           Date:   July 19, 1966
           Vote:   For the Legal Sale of Beer - 148
                   Against the Legal Sale of Beer - 293
     You further informed us that Precinct No. 3 has remained
constant in land area at all material times herein.
     Although we may assume compliance with certain procedural
safeguards in the elections presented for consideration, we
cannot disregard substantive statutory requirements, including
time limits imposed between local option elections and the
combination of political subdivisions in voting in local option
elections.
     With reference to elections numbered above as (I), (2),
(3) and (4) we have reached the conclusions which follow:
Election 1 established prohibition in Precinct No. 3 and
          2 . if valid, did not change this status, but estab-
Election rl
lished prohibition in the entire County of Calhoun. Resort
must be had to Article 5724, Vernon's Sayles' Texas Statutes
of 1914, in order to determine the validity of Elections (2),
(3) and (4), which Article provided, in part, as follows:

           . . .No election. . .shall be held within
          the same prescribed limits in less than two
          years after an election. . .' Acts 29th Leg.
          1905, ch. 158, p. 378.
Further consideration must be given to the exception provided
in Article 5726, Vernon's Sayles' Texas Statutes of 1914,
which provided, in part, as follows:
          II
           . . .nor shall the holding of an election
          in a justice's precinct in any way prevent
          the holding of an election immediately there-
          after for the entire county in which the
          justice precinct is situated; but, when pro-
          hibition has been carried at an election for
          the entire county, no election on the question
          of prohibition shall be thereafter ordered in
          any justice precinct, town or city of said
          county until after prohibition has been de-
          feated at a subsequent election for the same
          purpose, ordered and held for the entire county,
          in aczordance with the provisions of this title
          * . .   Acts 23rd Leg. 1905, ch. 45, p. 48, as
          amended. (emphasis added)

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 Honorable William M. Day,   page 4     (M-457)



 Under the exception contained in   Article 5726, Election (2)
 was valid; however, Election (3)   is invalid in that it does
 not fall within said exception.    Election (4) is invalid be-
 cause of the express prohibition   contained in Article 5726.
      The repeal of National Prohibition in 1933 and the
 passage by amendment of Article XVI, Section 20 of the Con-
 stitution of Texas, operated to restore to each county or
 'politicalsubdivision its former status relative to prohibit-
 ing the sale of intoxicating beverage as it existed before
 the adoption of the amendment. Rockholt v. State, 136 Tex.
 Crim. 479, 126 S.W.2d 488 (1939).
        With reference to elections heretofore listed as numbers
 (5)   and (6) we have reached the following decision. It is
 unnecessary to discu,ssthe effect of Election (5) upon the
 status   of Precinct No. 3 in that the voters of Precinct No.
 3 voted against the sale of beer in Election (11) and could
'validly do so as such Precinct was on an equal footing with
 Calhoun County as to prohibiting the sale of alcoholic bever-
 ages at the time of Election (11). Myers v. Martinez, 320
 S.W.2d 862 (Tex.Civ.App. 1959, error ref. n.r.e,). C
 Attorney General Opinion Nos. C-715 (1966) and WW-g76f(lg60).
 Whether Justice Precincts Nos. 1, 3 and 5 combined as a unit
 to bind all jointly, or if each voted as a separate unit in
 Election (6), would be immaterial since Precinct No. 3 voted
 against the legal sale of beer in Election (11).
       With reference to elections listed above as nu;rn;r;,i:)
and (81,   we have concluded as hereinafter stated.
that Calhoun County voted to legalize the sale of all liquors
in Election (7) would not repeal prohibition in Justice
Precinct No. 3.    Cf Coker v. Kmeicik, 87 S.W.2d 1076 (Tex.
Comm.App. 1935). Rockholt v. State, supra; Attorney General
Opinion No. v-262 (1 4 )     From all appearances, Precincts
Nos. 1, 3 and 5 comb?nzd'to vote as a unit in Election (6)
since other elections are designated as "countywide" and
"Precinct No. 3”.    With this assumption, we must conclude
Election (6) is invalid. Combination of precincts was permis-
sible under former Article 5715, Vernon's Sayles' Texas Civil
Statutes   of 1914; however, there was no provision in the 1933
Amendment to Article XVI, Section 20 of the Constitution of
Texas which allowed any two or more of any political sub-
divisions of a county to combine and vote, Our ultimate con-
clusion herein is based on the foregoing assumption. It
should be observed here that if Election (8) concerns separate
elections by each precinct in question, our conclusion would
be different and we would be of the opinion that Precinct No.
3 would be 'wet"
              ~    for the sale of "liquor", as that term is

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.   .




        Honorable William M. Day,     page 5     (M-457)


        defined in Article 666-3a, Subsection (5), Vernon's Penal
        Code.
             With reference to the remaining elections numbered (q),
        (10) and (ll), the 1935 Amendment to Article XVI, Section 20
        of the Constitution of Texas placed counties and political
        subdivisions on equal footing in local option elections.
        Myers v. Martinez, supra. It is n&necessary    to discuss
        the effect of Elections (9) and (10) because Election (11)
        prohibited the sale of beer in Precinct No. 3 of Calhoun
        County. Election No. 11 was valid, in that Precinct No, 3
        was a dry precinct at the time of the elections Nos. (g),
        (10) and (ll), as Election No. 1 voted for prohibition, and
        the subsequent Election Nos. (1) through (8) did not affect
        such dry status.
                                SUMMARY
                  Under the factual matters presented, the sale
             or dispensing of any type of alcoholic beverage in
             Precinct No. 3, Calhoun County, is prohibited by
             vote under local option elections.
                                               Ver&?ruly   yours,



                                                       General of Texas

        Prepared by Jay Floyd
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        George Kelton, Vice Chairman
        John Banks
        Neil Williams
        Tom Bullington
        Roland Allen
        W.V. GEPPERT
        Staff Legal Assistant
        HAWTHORNE PHILLIPS
        Executive Assistant

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