,




             TEXEA'PI'QENEY    GENERAL
                     OF   EXAS




    Honorable G. L. Kelly, Jr.        Opinion   No. C-681
    County Attorney
    County of Bastrop                 Re:   When a smaller ent1t.vhas
    Bastrop, Texas                          voted “dry” under a prior
                                            local option election and
                                            has been consolidated Into
                                            a "wet" entity, a Justice
                                            Precinct; and an applica-
                                            tion has been presented
                                            to the County Clerk for a
                                            petition for a local op-
                                            tion election to legalize
                                            the sale of all intoxicating
                                            liquors In the “dry” area
                                            only, Is it necessary for
                                            the election to be held for
                                            the entire Justice Precinct
                                            as it now exists, or only
                                            for the lesser entity, i.e.
                                            the smaller prior precinct
                                            which is dry and a related
    Dear Xr. Kelly:                         question.
          Your letter requesting an opinion of this office reads
    as follows :
             Vhls Is a request for an Attorney Gon-
          eral*s Opinion concerning Art. 666-32 of
          the Texas Penal Code, as amended, speclf';i-
          tally concerning Local Option Elections un-
          der the Texas Liquor Act.
              “Prior to 1948, this County was co osed
          of eight (8) Justice Precincts. In 19 $8
          these eight were consolidated into four (4)
          Justice  Precincts.
             “Prior to 1948, one of the Justice Pre-
          cincts which Is new consolidated into a
          larger Precinct, voted ‘dry! and exlnts
          presently as such. The remainder of the
          present Justice Precinct (and the larger
          portion, axea and population wise) Is
                             -3274-
Honorable G. L. Kelly, Jr., Page 2 (C-681)


     'wet'. Application Is being made under
     the above quoted Act for a Petition for
     a Local Option Election to legalize the
     sale of all alcoholic beverages In the
     dry area, It being the Intent only to af-
     fect the area now 'dry' and not to affect,
     in any manner, the rest of the presently
     existing Justice Precinct which Is 'wet'.
     Inasmuch as the subdivisions listed In
     said act are limited to 'county,
      recinct or Incorporated town or wc y
          e specific areas
     !k--r-                to which an election
     can be defined, this is the question:
         "QUESTION: When a smaller entity has
     voted Idry' under a prior local option
     election, and has been consolidated Into
     a predominantly 'wet' larger entity, a
     Justice Precinct; (which Is the smallest
     subdivision in the Texas Liquor Control
     Act in rural areas) and an application has
     been presented to the County Clerk for a
     Petition for a local option election to
     legalize the sale of all Intoxicating
     liquors in the 'dry' area only, Is It
     necessary  for the election to be held for
     the entire Justice Precinct as it now
     exists, or only for the lesser entity,
     I.e. the smaller prior precinct, which is
     'dl-y'?
        "A second question exists also. This
     made existent since our Voter Registration
     Law of 1966. The Local Option Election
     portion above quoted states that If a peti-
     tion is issued, It requires 25s of the
     qualified voters of said subdivision (what-
     ever the subdivision may be, according to
     your answer to the Question above.) before
     an election can be ordered by the Commls-
     sioners Court. It further states 'taking
     the votes for Governor at the last pre-
     ceding General Election at which preslden-
     tlal electors were elected as the basis for
     determining the qualified voters! In said
     subdivision. Obviously, the number of
     Oquallfled voters' et said preceding 'Oan-
     era1 Election' will not be the same as the
     'qualified voters' under the Voter Regls-
     tratlon Law of 1966.
                         -3275-
Honorable G. L. Kelly, Jr., Page 3 (C-681)


         "QUESTTON: Which criteria should be used
      in determining whether 25% of the qualified
      voters of a subdivision, In a local option
      election have signed a petition for such an
      election: 1) The votes for Governor at the
      last preceding General Election at which
      presidential electors were elected; or, 2)
      The qualified voters who have qualified to
      vote by registerin under the Voter Regls-
      tration maw of 1962 ?'
      Attorney General's Opinion No. o-6917 (1946) states
in part as follows (a copy of which is attached hereto):
        "It is a well settled rule under the
     Texas cases that whenever a local option
     law Is once legally put into operation in
     a given territory, it must remain In force
     untll It has been voted out by the voters
     of the territory where such law was origl-
     nally vitalized. See Ex Parte Pollard,
     103 S.W. 878, and Walllng vs. King, County
     Judge, 87 S.W. (2d) 1074. Article XVI,
     Section 20 of the Texas Constitution Dro-
     vldes for elections only In the counti
     tlce's precinct -or incorporated --
                                      town
        "Having determined that the exclusive
     method of changing the status of a ldryl
        'wet' area is by an election
     izoceed to the question of the ;orrnzFwthe
     ballot to be used In an election In an
     incorporated city part of which Is 'wet'
     and part of which is 'dry'.
        "Pursuant to Section 20 of Article XVI
     of the Texas Constitution, previously set
     forth In this opinion, the .,Forty-fourth
     Legislature In 1935 passed the Texas Ll-
     quor Control Act which Is to be found In
     Articles 666 and 667 of Vernon's Annotated
     Penal Code, 1925. Article 666-23 deflnes
     a 'dry area' and a 'wet area' as follows:




     beverages meen     prohibited by valid local
                       -3276-
Honorable G. L. Kelly, Jr., Page 4 (C-681)


      optlon elections held under the laws of
      the State in force at the time of the
      taking effect of Section 20, Article XVI,
      Constitution of Texas in the year 1919.
      It likewise shall mean and refer to any
      such areas where sale of such alcoholic
      beverages shall be prohibited under the
      terms of this Act.
         "iThe term "wet area" shall mean and
      refer to all other areas of the State.'
      (Emphasis added)
          "An examlnatlon of the above under-
      scored language In Article 666-33 (sic)
      forces us to the conclusion that the de-
      termlnatlon  of the status of one of the
      polltlcal rrubdlvlslonsmentioned In
      Article XVI, Section x) of the Texas Con-
      stitution depends upon a consideration of
      the status of the county, justice pre-
      cinct, or inaorporated town or city as a
      whole, and that one of the above subdlvl-
      alons may not be part 'dry' and part 'wet'
      :;&the purposes of a local option elec-
           . It 18 our further opinion that If
      any part  of the subdivision Is 'wet' then
      the entire subdlvlslon Is *wet' for QUr-
      poses of a local option election. The
      City of Pasadena, despite the fact that
      the entire city was originally a 'dry
      area'. Is now a *wet area' by virtue of
      the fact that liquor may now be legally
      sold In a portion of the lncgrporated
      city."
           In view of the above Attorney General's Opinionand
Patton v. Texas Liquor Control Board. 293 S.U.2d 99 (Tex.
CIY.ADD.
  -__-.___    1956
              ___~ error
                   ----~ ref.
                         ~-~. ~~_~.~.,. I. If
                              n.r.e.       - 'Sls-th6oplnlok of
tlNs office that It Is necessary for the election to be
held for the entire Justice Precinct as it now exists.
      It Is further the opinion of this office that for
the limited purposes of a local option election, the Jus-
tice Precinct as It presently existe shall be considered
as a "wet area" within the meaning of the Texas Liquor
Control Act.

                             -3277-
,




    Honorable 0. L. Kelly, Jr., Page 5 (C-681)


          In anawer to your second question, Attorney General’s
    Opinion No. C-332 holds that the language of Article 666-
    32, Vernon’s Penal Code, which Qrescrlotisthe form of a
    petition for a local option election, Is mandatory, not di-
    rectory.
           Ye here reaffirm and concur in the correctnese of At-
    torney General’s Opinion No. C-332 (1964)and the necessary
    implications of’such opinion.   Article 666-32 specifically
    sets forth the criterion to be followed in determining the
    qualllled voters In the county, justice18 precinct or in-
    COrpOrated  town or city and is not affected by the Voter
    Registration Law of 1966.
          It should be noted that the State Legislature may
    aet any reasonable standard that must be met in any Qeti-
    tlon calling for an election. In Article 666-32, Vernon’8
    Penal Code, the criterion to be followed 18 25 per cent of’
    the qualified voters in the jueticels precinct ‘taking the
    votes for Governor at the last preceding General Election
    at which presidential electors were elected a8 the basis
    for determining the qualified voters In such . . . justice’s
    precinct. . . .”
                         SUMMkRY

              When a prior Justice Precinct has
          voted “dry” under a prior local option
          election and has been consolidated into
          a “wet” Justice Precinct, In order for
          the Frlor Justice Precinct to become
          “wet it Is necessary for an election
          to be held for the entire Justice Pre-
          cinct as It now exists; the criterion
          to be used In determining whether 25s
          of the qualified voters have signed a
          petition, For a local option election,
          1s the votea cast for Governor at the
          last preceding General Election at
          which QPXidential electors were elect-
          ed.   Article 666-32, V.P.C.
                                   Yours very truly,
                                   WAGGONER CARR
                                   Attorney General of Texas


                             -3278-
Honorable G. L. Kelly, Jr., Page 6 (C-681)




                               Assistant'kttorney General

DHC/'dt
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Mary K. Wall
John Reeves
Phllllp Crawford
Ronald Luna
APPROVED FOR THE ATTORNEY GENERAL
BY T. B. Wright




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