            THEATITORNEY                   GENERAL

                           OF    TEXAS




                                December20, 1960


Mr. Alton R. Crlffln                     opinionNo. wu-976
CountyAttorney
Lubbock,Texas                            Ra: The effectthat a precinctlocal
                                             option electionwill have upon a
                                             city which has heretoforevoted
                                             dry upon the same issue which is
                                             up for vote in the precinct,which
                                             lncludeblwithin its boundariesthe
Dear Mr. Griffin:                            dry city, and relatedquestions.

      Your requestreads in part as follows:

            "On the 5th day of November,1960, the IncorporatedCity
      of Slaton,Texas, held a local option electionupon the issue
      for the sale of alcoholicbeveragesfor off-premsseconsumption.
      On December10, l&C, JusticePrecinct2 in the County of Lubbock
      will hold an electionfor the sale of alcoholicbeveragesfor
      off-premiseconsumption.The City of Slaton is complatalywithin
      the boundariesof JusticePrecinct2.

            "I have read your OpinionWWgk5 concerningthe electionin
      GraysonCounty,Texas, and your opinionthat the county-wideelection
      would have no effect upon the City of Denisonwhich had previously
      voted wet. My questionsare as follows:

           "(1) Will the City of Slaton remain dry regardlessof whether
      JusticePrecinct2 legalizesthe sale of alcoholicbeveragesor not?

            "(2) Are the peoplewithin the city limits of Slaton entitled
      to vote in this precinctelectionsince only a month previousthey
      voted on the same issue in the City election?

            “(3) If the majorityof the voters in the box locatedwithin
      the city limits of Slaton vote wet, will that result in the city
      being wet?

            "My interpretationof the law end of your opinionas well as
      my discuesionwith you would be as follows: that the people of
      Slatonwould be entitledto vote in the precinctelectionand that


                                                     : ‘,...
Mr. Alton R. Griffin,Page 2    (~-976)

       the City of glaton,Texas, will remaindry regardlessof the
       outcomo~of the precinotelectionand regardlessof this vote in
       the City of Slaton ltaelf."

       Your interpretation
                         of the law and of AttorneyGeneral'sOpinionNo.
WW-945 is   correct.

       In WW-945, it was statedthat the 1959 case of k&era v. Martinez,320
S.W.2d 862 (Tex.Civ.App., 1959)~writref. n.r,e.,per curiamopinion326 S.W.
26 171r was controllingth~.thtg,typecf~edt~atio~i:~d'Yie~,fo3~Wing;exC~acf;sjfr
that case are pertinent:

             *Appellantfurthercontendsthat the theory of local
       self-government requiresthat the will of the county should
       controlover the will of the precinctor city. We do not
       agree. The doctrineof local self-government  requiresthat
       the will of the smallerunit shall controlover the will of the
       largerunit. The doctrineof local self-government  will not
       supporta rule to the effectthat the countymust controlthe
       precinctor city." (Emphasisadded.)

              "It is plain from the provisionsof the 1935 amendment
       and the statuteenactedthereunder,that the Legislaturein
       submittingthe constitutional~amendment  and'enactingthe
       statute,and the people in adoptingthe 1935 amendment,inten-
       ded that counties,justice'sprecinctsand incorporated.IQitSes~
       or towns shouldbe on an equal footing,and that by complying
       with the provisionsof the law either of them might hold an
       electionany time to either "legalize',or,'prohibit': the sale
       of alcoholicbeverages,in keepingwith the provisionsof Sec.
       40, Art. 666, Vernon'sAnn. Penal Code. The only limitationis
       that an electionfor.thesame purposein the same area must not
       be held oftenerthan once a year, as is providedby Article
       g66-32, which reads in part as follows:

                      'No subsequentelectionupon the same
               issue shallbe held within one (1) year from
               the date of the last precedinglocal option
               electionin any county,justice'sprecinct,or
               incorporatedcity or towne"' (Emphasisadded,)

       To answer your questionsspecifically,first,the City of Slatonwould
remain dry regardlessof whetherJusticePrecinct2 legalizesthe sale of alco-
holic beveragesor not. The City of Slaton is the smallergovernmental unit of
the two, smallerin.size and population,and completelywithin the boundaries
of Precinct2. So, carryingthe doctrineof local self-government  to the smallest
unit, the declaredresult is apparent.
     Mr. Alton R. Griffin,Page 3   (w-976)

            Second,the people within the city limits of Slaton~areentitledto vote
     in this Precinct2 electioneven thoughthey voted on the same issue in the city
     electiononly s month prior to the precinctelection. In a precinct-wideelection,
     every eligiblevoter in the precinctis entitledto vote. The eligiblevoters of
     the city of Slatonwould not be prohibitedfrom participating becauseof their
     recent electionfor the reasonthat the areas coveredby the electionsare not the
     same.

           Third, if the majorityof the voters in the box locatedwithin the city
     limits of Slatonvote wet, that would not result in the city becomingwet. The
     precinctelectionis not a city electionand would have no effecton the previous
     electionheld by the smallergovernmentalunit, the City of Slaton.

           As AttorneyGeneral'sOpinionNo. WW-945 stated,to reach a different
     result in such situationswould be contraryto the will of the voters in the
     cities,towns and justice'sprecincts,contraryto the holdingin Myers v.
     Martinez,supra,>$ndcontraryto the wording of the 1935 Constitutional Amendment.

                                             SUMMARY

           1. The city of Slatonwould remain dry regardlessof whetherJustice
     Precinctplegalizes the sale of alcoholicbeveragesor not.

            2. The peopie within the city limits of glatonare entitledto vote in
     this Precinct2 electioneven though they voted on the same issue in the city
     option electiona month earlier,

            30 If the majorityof the voteas in the box locatedwithin the city
     limits of Slatonvote wet, that would not
                                          -   result in the city becomingwet.

                                                       Very truly yours,

                                                       WILL WILSON
                                                       AttorneyGsneralof Texas



                                                       iy GLEZNR. BROWN
                                                          Assistant
     APPROVFD:

     OPINIONCOMMI!lYEE
     W. V. Gepport,Chairman

     Leon Pesek
     Bill Allen
     W. Ray Scru&y
     Ben Harrl&n

_’    RBV~FORTBBATTORNEY       GENERAL
      BY; IaonsrdPassmore
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