county   Attorney
Free&one County
Fairfleld,Texas

Dear Sir:                               ,opinionBo. O-5487
                                        Rei xmal option eleotim -- May an
                                             eleo~ion,to determinewhether
                                             or not the eale of beer that doee
                                             not containaloohol in 8x0886of
                                             4% by weight ehallbe legalized,
                                             be held ln a justicepreolnct,
                                             inoorporateatown or city looatea
                                             within a dry county?

          Your lettar,Uatd July 27, 1943,requestingan opinionconcemlng
the above matter, reada in part as follower

                  "Citizensof a particularjusticeprecinctor tm
             or oity of my countyare interestedIn call- an election
             under Article 666,Seotlone32, 33, 35, 37, 38, 39 and 40,
             Vernon'eAnuotstedPenal Code, (LBamenfLed by 9. B. 117,
             Chapter325, page 509, Acts of the 48th Legielature,for
             the purposeof~detelmining whether6r not the eale of%eer
             that'aoes not containalooholIn em&e of four (45)per
             centumby weight',shall be legalIre in such polltioal
             eubaivislon.
                 "FreeetoneCounty is a dry area, having prohibited
             the sale of 'beerthat does not containaloohol in exdese
             of four ,(4$)per oentumby weight'on Deoember21, 1940,
             by BP electioncalledfor that purpose.

                  *Question: Does 9. B. 117, Chapter325, page 509,
             Acte of the 48th Legislature,authorizean eleotionin a
             juatiae pmdnot   or inOorp022eea turn or city located
             within the limitsof a dry oounty for the,purpoeeof
             aetemlnlng whether or not the sale of 'beerthat doee
             not containalcoholin exoeeaof four (4%)per centmu
             by weight' shall be legalize&?
HonorableBowlen Bond, page 2 (0-5487)




         ArtieleXVI, Section206, Conetltuticmof the State of Texasr

             "In all counties,justice'8precinctsor incorporated
         towns or citieswherein the sale of intoxicatingliquors
         had been prohibitedby local option electionsheld un&er
         the laws of the State of Texas and in foroe at the time of
         the takingeffectof Section20, ArtioleXVX of the Consti-
         tdion of Texas, it shall continueto be unlawfulto manu-
         facture,sell, barter or exchangein any such county,
         justloe'aprecinctor incorporatedtown or city, any spirit-
         UWB) vinoua or malt liquorsor medicatedbitter8capableof
         produoingintoxication  or any other lntoxicantewhatsoever,
         fbr beveragepurposes,unless and until a majorityof the
         qualifiedvoters in such countyor politicalsubdivision
         thereofvoting in an electionheld for such purposeshell
         determinesuch to be lawful;providedthat this subsection
         shallnot prohibitthe sale of alcoholiobeveragescontain-
         ing not more than 3.2 per cent alcoholby weight in cities,
         countiesor politicalsubdivlalonathereofin which the
         qw.llffedvotershave voted to legalizesuoh sale under the
         provisionsof Chapter 116,Acta of the RegularSessionof
         the 43-a Legislature."

          In the ca8e of Houchinev. Plednos,110 S.W.2d 549, the Supreme
Court of Texas held that where power is given by Constitutionana means by
          mamer ln which, ft is to be exerolaedis prescribed,such means
which, '7::
ana wner is exIdti8ive.

           ~z OpinionNO. 0-2114,this aepartauentheld, among other things,
shoula a oosnty as a whole vote for prohibitingthe sale of all alcoholic
-xTeragee > %e
            '. ~zountywould be dry regardingall alooholicbeverages,ena the
varfo~s pr-e>tictsWOUM have no authorityto call and hold any local option
e1~324im a

         L- the case of Wallingv. King, 67 S.W.2d 1074,Judge German,
apeakingfor the SupremeCourt of Texas, saidl

             ‘Prior to the adoptionof section20, article16, it
         haadhem the law of this state for many years that when a
         ccurrty,justice'sprecinct,or ot$er politicalsubdivision
         of a countyvoted to prohibitthe sale of intoxicating
         iiquors,it continuedto be unlawfulto sell such liquors
         within the prohibitedterritoryuntil the voters of the
         identicalterritorywhich had adoptedprohibitionvoted
         .torepeal it. In Ex Parte Pollard,51Tex. Cr. R. 488,
HonorableBowlen Bond, page 3 (O-5487)



         103S.U. 878,Juage Davidson,epeakingfor the Court of
         CriminalAppeals,said: 'Wherevera local optlou law
         is once legallyput into operationIn a given territory,
         it must remain in force until it has been voted out by
         ,thevoters of the territorywhere such law was originally
         vftalized.(

             "Severalcases are cited in supportof this holding.

             "The constitutional
                               amendmentaet out above by express
         words adopted this rule of law. The languageis that in
         any county or any politicaleubaivisionthereofwhere the
         sale of intoxicatingliquorshad been prohibitedprior to
         the adoptionof section20, article16, it shouldremain
         unlawfulto sell same (includingbeer) in said county or
         politicalsubdivision'untila majorityof the quallfled
         voters in sfda countyor politicalsubdivisionthereof
         voting in an electionheld for such purposeshall deter-
         mine it to be lawfulto manufacture,sell, barter and ex-
         change in said county or politicalaubdivleionthereof
         vinous or malt liquorscontainingnot more than three and
         two-tenthsper cent (3.2s)alcoholiccoutentby weight'.

             "The very couatitutional amendmentby which appellant
         is accordedhis right to a licenseexpresslyprovidedthat
         if local option prevailedin the countywhere he sou&t
         to obtainhis licenseit was necessaryfor the voters of
         that county to authorizethe sale of the 3.2 per oent~beer
         beforehe could obtain a license. This the countyhas never
         done, but on the contraryit had for the second time voted
         in favor of local option 80 far as beer x88 coucernea. It
         necessarilyfollowsthat as ChildressCounty had prohibited
         the sale of intoxicatingliquorswithin its boundariesprior
         to the adoptionof section20, article16, by virtue of sub-
         division(a) set out above, it was uulawfulto sell beer
         within any part of saia countyuntilvotere of the whole
         countydeterminedotherwise. Local optionwithin the county
         as a whole could.not be repealedby piecemeal."

         Tlzelaw is well settledIn this State that where local optionwithin
the ec.zty aa a whole has been adoptedthat the 8Bme cannotbe repealedexcept
by E comtywlde election. We *mume from the facts stated in your letter that
Freestme County is cidry county.

         In view of the authoritiesabove cited, it in the opinionof this
departmentthat SenateBill 117 does not, an8 could not, authorizeau election
                                                                  -..




HonorableBowlen Bond, page 4 (O-5487)



to be held in a justiceprecinct,Incorporatedtown or city loaatedwithin
the limitsof a dry county,to determinewhetheror not tie sale of beer
that does not containalcohol in exoeaeof 4$ by wei&t ehallbe legalized.

                                              Yours very truly



                                             /a/JeeeeOwene

                                        BY
                                               Jesse Owena
                                                 Aseistent

JO:db


APPROVEDAUG X, 1943

/s/GroverSelLx::


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