.,--   .




       Gerald C. Mann




           Hon. ,A. E. Hickerson        Opinion      No. O-2834
           County Auditor               Re:    It    would be legal to pay the
           Montgomery County            expense      of a county-wide local
           Conroe, Texas                option      election mentioned herein.
           Dear Sir:
                      Your letter of October 17, 1940, requesting an opin-
           ion of this Department upon the question as herein stated has
           been received.
                        We quote from your letter       as follows:
                       “On October 14, 1940, the Commissioners’
                 Court of Mont,gomery County sitting    in Regular
                 Session received a petition    calling  for a
                 county wide local. option for or against the
                 sale of beer.    This election  was called for
                 November 2, 1940.
                       “My attention has been called to the fact
                 that the following  local option elections    have
                 been called and held in the following    Just ice
                 Precincts  of Montgomery County:
                        “J. P. Precinct 4, Nlection       held April 27 1940.
                         J. P, Precinct 8, Xlection       held May 4, 1440.
                         J. P. Precinct.2, mlection       held Sept. 28, 1940.
                       “In view of the above elections? would
                                                            . it - be
                 legal to pay the expense of the local- optlon elec-
                 tion called for county wide November 2, 1940?”
                        This Department held in Cpinion No. O-286 that “a
            local option election     may be held in a justice    precinct    to
            determine whether to prohibit      or legalize   the sale of beer
            containing    in excess of 4% by weight, regardless      of the fact
            there is within the precinct      a city 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
            a majority vote favorable to sale of such alcoholic         beverage,
                                                                               .-.


Hon. A. 1’. Hickerson,     page 2


the dry status of the city will remain as it now is, until and
unless another election  be held within and for said city chang-
ing its status.   In such event, that part of the justice’s pre-
cinct outside of the limits of such city will be wet to the
extent that sales of beer not exceeding 4% alcohol by weight
will be legal.”
          Montgomery County as a whole is now wet as far as the
sale of beer is concerned.  However, there are certain precincts
within the county which are dry.
          The election   provisi.ons of the present Ii uor Control
Act are contained in Sections 32 and 40 of Article        %66, Vernon’s
Annotated Penal Code, based on paragraph (c) of Section 20,
Article AVI of the Constitution.       The constitutional    provision
sanctions local option elections      in the following    olitical    sub-
divisions of a county:     (1)   the entire county; (27 a justice
precinct;  (3) an incorporated    city or town.
             E,ection 32 of the Liquor Control Act provides the
commissioners1 court of each county in the State upon its own
motion may order an election        for the whole county; but upon
petition   of 10 per cent of the qualified          voters of the county
or of any justice      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 any county, justice        precinct,   incorporated     town or city,
no subsequent election        upon the same issue in the same politi-
cal 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 be whether or not a
county-wide local option election    can be legally held for the
county on November 2, 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 a year prior to the time for which the
county-wide local option election    is to be held.
             In the case of Griffin  v. Tucker, 118 .s.:J:. 635, the
Supreme Court held a larger subdivision      might hold an election
irrespective    of the status of the smaller subdivisions       therein.
;yn;at    case local option had prevailed    in a justicels     pre-
         but an election   was subsequently called in a commission-
ers’ &ecinct     which embraced within its territorial      limits
the justice’s    precinct.   The Court said:
Hon. A. E. Hickerson,     page 3


            "It is true that, when the prohibitory
     rule is put in force        it cannot be repealed
     or displaced     except iiy the vote of the dis-
     trict which adopted it.         It is quite as true
     that an election      however resulting,    in a
     larger including      subdivision,   has no such ef-
     feet.     If it results    in the defeat of prohi-
     bition,     the rule remains unaffected     in the
     territory     that has before adopted.      If it re-
     sults in the adoption of prohibition,         that
     rule is extended to the whole, where before
     it was enforced only, in part of the terri-
     tory.              We see 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 may be taken
     away by the action of part of its territory
     constituting      a smaller one. . . .'I
            In a local option "stock law" election     it was held a
commissioners'    precinct    included a city which had theretofore
adopted the ":ztoCk law" did not render the election      void.     Lam-
bert v. .:;c.ur3.oc.:,, 285 S.W. 679; Bishop v. State, 167 S.':!. 363.
           In view of the foregoing   authorities    you are respect-
fully advised that it is the opinion of this Department that the
above mentioned county-wide local option election        can be legally
held notwithstanding    the fact that justice   precincts   have held
similar elections   within one year prior to the county-wide elec-
tion and thtit the county can legally   pay the expense of such
election.
            tie are enclosing   herewith     a copy of our Opinion No.
O-286,   above referred to.
            Trusting    that the foregoing    fully   answers your in-
quiry,   we are
                                        Yours very truly
                                        ATTORNEY GENERAL OF TUAS
                                        By /s/    Ardell Williams
                                        Ardell    Williams, Assistant
&PRoVE;DOCT 25, 1940
/s/ Gerald C. i%nn
ATTORNEY  GENUUUOF TEXAS
APPROVEiD: OPINIONCOMMITTEE
BY:        BWB. CH,AIRMAN
AW:BBB:wb     '
ENCLOSURE
