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        OFFICEOFTHEA’TTORNEY           GENERALOFTEXAS
                              AUSTIN



yc;lorableJesea ?J. Etrawn
County Attorney
::lilooyCounty
~eynondvllle,Toxee
Deer sir:




                                              01 in exoe08 of
                                               *nt and the aounty~
                                               0 fourteen per asnt
                                               net? Y.‘hettype of
                                             bould be lssned    In
                                             inct in Cc386 it   is
                                              eny cyp of alco-
                                              ragea asp be 80167
                                              , requ3sting the
                                              iona set out above




      C??r tL;o 101~~1 0~,';10:1iC:l that eXisted   prior t0 1537,
      voted   'tar  prohibiting    t.ho sale or  all liquors,
      C3jrCCDt viriouean6 1:al.C   Licuore that a0 not contain
     tionorebld
              ~~~e8 w. Sttawn, Page 2        _


         unable to rind any ftuthorityon thie question,
         but It bmx?~ato mi that itO;fouldbe le@al to sell
         ~;;;ten& #in8 u? to four (4;~)per oent in the pre-
                 You wllL iiOtlO6 rrornmy orlgifialquestion
         that iha ocunty voted dry a3 to four (I+$)per cent
         hoer, but later voted wet 8s to fourteen (145)
         beer and wine. The ?rccir.otin question has never
         voted dry on either four (I+!<)per oent buar or
         fourteen (X4$) per cent beer epd wlnc.
              "1 an et the opinion thnt it isle&al to sell
         hoer and wine up to four (4::)
                                      .peraont in the pre-
         oinotr Yhat type or lioense should be Issued in
         said prcoinot in ease you find that sup type of
         aloohollo beverage nap be aold?"
               h the above quoted let&m you rerer oa to a let-
     ter previounlp!:?ittcnby you to this dcgartnent which let-
     tar wea doted Fcbruery 27, 1942, and contain& inquiries
     t&;ch Were nnsvercd in this dapartmentfs opinion 110.04466.
     It is neoessory to aonsldar both 01pthooo lcttsrs together
     13 order to amiycr th6 questions coutaised in the above
     quotedlatter, end sinoo neither of your letters reveals
     the status of the county or of the precinat pAor to the
     rlootlonthat rssultod in the le~elization of the sale or
     rinous end nalt liquors that do oot oontsin alcohol in ex-
     cb5a or sou percent (4$) by ivoight, it would 3fen to be
     also necessnry to indulge the prcamptlon that the munty
     aonteinlngthe precinct wcs aither wet et the tine or the
     acoptlonof the prohibition anencbent to the Constitution
     la 1919 or had oinoe tha adoptlon or the Constitutional
     euendmentpenitting loael option, and bororc the olcotion
     ma held in:thio precinct voted Vet to SOne extent penait-
     ted by law because unless the oounty Itself was wet, 6 poll-
     tioal subdivisionthereof oould not 1OEallY Vote to permit
     the aale of any type of alooholio beverage.
               BeglnninC then with the presumption of the volld-
     !ty of the first.election in the gyeoreainct,
                                                Y#enow dlnoues
     four questions in a eeries of cuc:bc:red
                                            atop3 in sccord.ence
          the v5ryir.goocditlon Of the oo8mty end prcoinot as
     *.lt!l
     tc the sele of alaoholio beverage5 es deaoribcd in both OS
     mr lottera,




,-
  zonorebleJames W. I?trawn,page 3


              1. "In the politloel subdivision,a preolnot,
  the VOttW5,   under the loocl option law that existed prior
  to 1937, voted 'for prohibiting the sale of all liquors,
  except YInous and rslt liquors that do not contain aloohol
  lo OXCOBS of four (4:')per oent by weICht*." (From your
  letter of Heroh 13, 1942.)
            This eleotlon ob~lausly  had the erfeot of permit-
  tIhg the ocle of alcohollo beverages oontaining not more
  then four percent (&:A)of aloohol by weight and of ?rohIbIt-
  lng the sale of any alooholio bevereges oontnlning a per- :-
  oentsceof alcohol greater than this amount. This Is 80
  olear that no oltotlon of authorItIas,areaeoessary on this
  point.
            2. *In 1937 all aloohollo beverages were $rbhIbIt-
  04 In the oounty" . (From your letter of February 27, 1942,)   .
            This election and the vote of the Jeople of the
  entire aounty e.gaInetthe sale of all elcoholio beverages
' had the effoot of prohibiting the sale of any alooholio
  beverage regardless of the alooholio content In tlr,precinot
  in question end such prohibition would oontinua so long as
  the oounty as a whole remained dry and until the people of
  the tlholeoomty,that Is the eeza political entity held an
  elootlonand voted In favor of the sale of aloohollo bever-
  ages to some extent permitted by law. In support of this
  rule of law we olte Jaokson Y, State; 118 S. 17.(2) 313,
  wherein It wns held by the Court of CrImInal Appeals Of
  Texas that!
            Ylntoxioatlngliquors onoe having been voted
       out by Yoters of e politloal subdIvisIonof 8
       oounty oan only be voted baok by a majority vote
       of Identical territory that had voted such liquors
       but**
   end quoting from this ease In the lengutigeof Judge Craves
   kti wrcta the opinion, viefind;
            "Tha county x~ayforoe prohibItion by vote
       over preoinots whioh are not In favor of it, and
       60 may a preoinot over cities, towns, or sub-
       dloisicns therGof that may not be In favor of
       it, but cannot foroe, by vote, rc?eal of It In
       any to\-m,city or subdivision thereof.n
‘.     :I(.              :   RonoreblaJames W. ZXawvn,Page 4


                             in the above quotod passa(r,o
                                                         Judy,eCraven wae himself quoting
       -,::,.:               from an earlier o~lnlon of Judge Hurt In the caaa of Aaron v.
                 ,..,        sate, 29 E. HI 267, but Judge Greves made It olesr that he
        .-,       r ,..      adopted suoh language and the rule there stated end made It
                             the opinion of tho court in Jaokson Y. state, Supra. To the
        .:        ‘..~       #$a.?10
                                  effeot IS the 0pInIon of Judge ncvldaon In the oaae of
                             Ex parts ?ollard, 103 S. Y;.87l?,and the Court of CIvS.1Ap-
                             !~?;l;e;!SeOf POW011 V* %Ith, 90 8. 3, (2) 942, IU WhIoh It
     ..:i:                           :
                   _..,

                                                 WwhBre looal opt&on was adopted in any &vsn
                         ”                  locality, by the majority of the voters thereof,
             . ,...                         It will rcnain In force until the cl_uallfIed
                                                                                        voters
      ::.
                                            of suoh partloular subdIvIsIon deoide otherwise
                                            In en elootloz bald for that purpose.*
                 1:. .y,     9!huewe see that the rule emerges whloh Is now clearly tha
                             settledlaw of this %ats, that while a political ~ubdl.vI-
                             sion of a bounty may Do and romein dry even though thu aounty
                             88 a Whole votes wet In any of the degrees permItted by law,
                  .~ .:      euoh political subdivision of the county may not be or re-
                             main wetwhen the oounty aa a viholevotes dry under looal
                             option.
                                       ContInuIng with ou7 analysis of tho hlotory of the
                             vsrlous stages of wetness ena dryness throu& which your ooun-
                             ty has paosod as described by your letter we find:

                                      3. HIn 1938 row     (&?+)per cent beer ~05 1egalIzed
                             xlthIn.theoountpi later an eleutlon to leqelize all eloohollo
                                      f&led to terry;
                             beverages.                 in 1939 four (4%) per cent beer
                             Piaslegoll%ed In the oounty.* (From your letter of February
                             27, 1942.1
                                       The question presented In this paraexaph is did
                             the preolnot In question beoome wet aa to four peroont (46)
                             Elcoholiobeverages When the county aa a Whole voted Met in
                             1939 aB to four percent (4:s)olooholIc bcvcreyes? Uz?derthe
                             rule laid dovn In tho ebove cited OR",CSWe think that Suoh
                             pSecinctQld bec0.m vet as to fcur percent (Pi) nlcohollo
                                   ._I when She co:lntY03 a ::hola
                             bC:v~rh7cs                                  :iEt;
                                                                             ss to Zuch
                                                                            v~-i~,cd


                             here~sn.    The r(fiohcrclnebove quoted z.:8en8that the voter5
                             of n v&o].@county ocnnot onlar$o or add 'COthe Wet Status Of
                             B ~Oliticr;lsubdivISIon of Such COUntY thOW:S they ?z~aYtaks
                             .%V3yor oyorrule itn vet ot.3tllS.It.iB OLZ'OgiEiOn, there-
                             fore, that the precinct would return to the status Voted by
            gonorable James W.    %miwn,   Pegs j

i
.!
;           tha people for that particular preoinat et the last sle0ticn
i           held in the precinct for that purpoce. The last election
            held in such prsoinot hoviny;resulted In the le(;allzation
.           cf four parcent (4%) eloohollo beverogca and hqving in the
i'.         meantIme gone by by 6 vote of the whole county, the grc-
iP          cinct would return to a status pemittln<   the sale of four
 2          pcrcant (G) alcoholic bavcreces when the county as a nhole,
 3          at a subnoguenteleotion, QOttd to ~0rnlitl the sale or iour
i
            proont  (43) alcoholio beverages.
i                         4. “In 1941 four (I$) per Cent beer was prohibit-
            ed     in the oount~.~ (From your letter of Februnry 27, 1942.)
t                        Now the prscinot v?ouldagain hecone dry under the
$           rule of ISW    8et Out, clttd and dlsousssU above.

                      5. "IZI1942 the &ale Of fourteen (1451 per oent
            beer and wine was legalized.* (Pron your letter of Pebru-
%
            sry 27, 1942.) “. . . The preoinct ln qucatfon has never
%           totea dry on either four (4") per cant beer or fourteen (145)
            per cent baer and w~Iw.~~ (From your letter of i:arch13, 1942.)
 i
                      I% have now reachad the ?rcsent state in which we
 j          find that the county is wet ss to Towtea,? >:cxcnt (II&) beer
    4       and wine) what then is the present ststus of the precinot In
            quest&n? Ye thin% t&t aaid prccinot is nat only as to alco-
            ho110 beverages ccntainlna not more than four percent (4$)
    a       or aloohol by weight.
    ?
                        Under the state of iaots given to us by you this
    i       prcclnotvoted to be dry as to all elooholiobevoragen except
    ,       those  otmteiningmore than r0ur percent (4,;)by might    on4
            no other eleotfon either nay has ever been held in such pra-
            oinat sinoe .thsttime. Ey thin election it became wet as to
            four percent (4;:)alcoholic beverages and it became dry as to
        t   all alcoholicbeverages oontalnlng aore than four percent (45)
            cr aloohol. Claerly, under tbu rules enunoieted hereinabove,
             it it hed been v~hollydry by n vote of tile?so7le of tho ore-
             elnot,it would have rcm&?cd dry throughout aI1 these QtaCd-
             tQde6of county eleotionc, Tccl-.con Q. Xate, supra, Aaron v.
             *tste,supre, ;r pcrta Pollard) Gupr3, 'io~wllv. T;:ith,supra,
             ‘cd Xouchins v. Eeinos, 210 ?. :/.(2) 549. 53 oornty could
             o~Wl;:o Its wet status in favor Of 8 dry Oco, but the oaunty
             couldnot ohm&e its Ory ststun in favor of a wet one.
             'UOh precinct yeasand is dry a3 to a13 ll?uorr in OYCGSS
             cr row pcroect (h:) or elcchol. c'uchprcclnctnow renalns
             'r7 es to 011 aloohoiio beverages containins: tore tb?n four
.



    Bonorablr Jan&~ W. Strawa, Page 6


    peroent.(ii$) alcohol by weight. Its wet Hiatus is Aot en-
    larged or added to by rcmion ot the taot thet the aounty is
    mayAOt
    ret in 6 groatcr dogree than is the proolnot, and such status
            be enlewed eXCePt by Vote Ol"the people or that par-
    tioularpre4iAat IA PA elsotlon held tor thst purpose.
               '351caoord~nca with the above holding you em ad-
    vised iA BASwe1 to your ikit     question that it is legal to
    sell alcoholic beversges containingnot more than four per-
    oent (f&i)by might in euch procinot. In answer to your
    seoond question you em advlRed that t?letype of license
    to be lseuod in such prectnct should be "Retail Dealers On-
    premise Lioensew, krticle 667-3, 'cotion 4 (b), 'lemon's
    hnOtf&?d   PhAtil. CO’!b, In anewerirg‘thfslast question we
    are ass~~&~ that iu your question about the tse of lioense
    you WaAt the type 0r lioense required for BA ordinary re-
    trillBealsr In srtohalooholo beverages.
                                            Very truly yours




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