                                        F            EXAS




The Honorable    Jim Sharon Bearden                         Opinion   No.   H-   34
County Attorney,    Orange County
Orange County Courthouse                                    Re:    Could a ballot for such
Orange,  Texas 77630                                               election   be legally   worded
                                                                   for the legal sale of beer
                                                                   and wine for on-premise        and
Dear   Mr.    Bearden:                                             off-premise     together?

     In your request for our opinion,       you state that, prior to re-districting,
Precinct    3 was a wet precinct     for on and off-premise    sale of beer and wine.
In 1970, re-districting     resulted   in enlarging  Precinct  3 by incorporating
into it a formerly     dry area.

    An election   has been requested  for both on-premises    and off-premises
consumption    of beer and wine in the entire precinct.    You have asked:

             “Could a ballot for such election be legally                    worded
         for the legal sale of beer and wine on-premise                      and off-
         premise   together? ”

    We answer      your     question        “Yes”.

     While it is possible,    as you suggest,      that two elections    could be held
at the same time on separate       petitions    and on separate     issues,   as was
approved   in Smith Y. Breedlove,        399 S. W. 2d 404 (Tex. Civ. App. , Eastland,
1966, no writ),   nevertheless,     it is our opinion that the safer course to
follow would be to track the language         of Article   666-40(b)(4),    Vernon’s
Texas Penal Code, applicable         to previously     dry areas,   and submit a ballot
with the issue stated simply as:

         “For   the legal     sale     of beer       and wine.

         or

         Against    the legal    sale       of beer    and wine.      ”




                                                 p. 140
The Honorable    Jim Sharon    Bearden,      page     2 (H-34)




    This would accomplish      both on and off-premises            legalization   if
the voters voted “For”.

  ~.~’
     Your 1,etter expresses     concern as to the effect on the portions    of
the precinct     where on-premises     consumption    of beer and wine now is
permissible      if the voters reject the proposition    for sale of beer and wine.
If they voted against the sale, it is our opinion that would render the entire
precinct    dry.

                              SUMMARY

            In a precinct     in which the sale of beer and wine
        was previously      authorized    and additional    dry territory
        is added by re-districting,        the preferable    manner in
        which to submit the question of the on and off-premise
        consumption     of beer and wine is to ask a single question
        in accordance     with Article     666-40(b)(4)   rather than to
        hold separate     elections   at the same time for on-premise
        and off-premise       consumption.

                                      Very    truly     yours,




                               (-,/   Att:orney       General    of Texas




DAVID M. KENDALL,          Chairman
Opinion Committee




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