Honorable William B. Sullivant     Opinion No. C-715
County Attorney
Cooke County                       Re:   Under the submitted
Gainesville, Texas                       facts, whether justice
                                         precincts 1, 4, 5 and
                                         8 In Cooke County, Texa.s
                                         are wet or dry with re-
                                         gards to the sale of
Dear Mr. Sulllvant:                      beer.
       Your letter requesting an opinion of this office
reads, in part, as follows:
          "A question has arisen In Cooke County,
       concerning the legality of the sale of alco-
       holic beverage, to-wit: beer, In certain
       precincts in our County. The facts are as
       follows:
            "In 1910 all of Cooke County was dry.
          "On April 28, 1934, Justice Precincts 4,
       5, and 8 vot.ed~In Local Option elections to
       go wet so far a.spertains to the sale of beer
       3.2 percent alcohol by weight, On the same
       date, a County wide Local Option election
       was held and the entire County voted dry.
          "On July 20, 1935, Justice Court Pre-
       cinct 1 in Cooke County, Texas, held a Local
       Option election and voted wet for the pur-
       poses of selling 3.2 beer.
          "On February 8, 1936, a County wide Local
       Option election was held wherein the question
       was whether or not it would be legal to sell
       beer with an alcoholic content of 4$ b weight.
       The results of this election were 1,678 against
       allowing the sale of the beer, and 1,676 for.
       On May 30, 1936, a County wide Local Option
       election was held in Cooke County wherein the
       question was whether or not It would be legal
       to sell alcoholic beverage with an alcohol
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Honorable William B. Sullivant, Page 2 (C-715)


       content of not more than 14% by volume. The
       County voted dry in this election. On each
       of the following dates, March 30, 1937, July
       23, 1938, August 19, 1939, County wide Local
       Option elections were held in Cooke County,
       Texas, and the proposition wa.swhether or not
       It would be legal to sell'beer in Cooke County
       with an alcoholic content not to exceed 9% by
       weight.
          "Since August 19, 1939, there have been no
       further Local Option elections that would In
       my opinion have any bearing on my question.
       ; . .
          'My question Is as follows: At this time,
       are Justice Preclnts 1, 4, 5, and 8 In Cooke
       County, Texas, wet or d,rywith regards to the
       sale of 3.2 beer in view of the above stated
       facts? In neither of the Precinct elections
       in Precincts 1, 4, 5, and 8, was it stated
       whether or not the election was for the on or
       off premises,sale of beer. I assume that If
       the people voted to allow the sale of beer and
       did not specify OA or off premlses, then the
       sale of beer either on or off premises would
       be legal. If you can clarify this point for
       me, I would also appreciate It very much."
       You did not advise us as to whether in the County
wide elections held on March 30, 1937, July 23, 1938 and
August 19, 1939, the County voted dry or wet. We assume
that the last County wide election resulted in a dry vote,
otherwise you would not have had an occasion to request
our opinion.
       The Supreme Court of Texas in Walling v. King, 87 S.
W.2d 1074 (1935), and Coker v. Kmelcim     S W e2d 1676 (1935),
held that when a county has voted prohibition, until   prohi-
bition is repealed by a vote of the entire county, a justice
precinct, town or city may not hold a local option election
to permit the sale of 3.2% beer. The Commission of Appeals
opinions above were adopted by the Supreme Court and based its
decision upon Acts 1933, Chapter 116; Constitution, Article
16, Section 20, as amended In 1953; Article 16, Section 20,
adopted In 1919.
       Article 16, Section 20, of the Constitution of Texas
was amended on August 24, 1935, and Article 666-32,  Vernon's
Penal Code, was enacted to carry the provisions of Section
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Honorable William B, Sulllvant, Page 3 (C-715)


20 into effect. The Court in Myers v, Martinez, 320 S.W.2d
862 (Tex.Civ.Ano. 1959. error ref. n.r.e,). construed the
1935‘constltutibnal-amendment and Article'666-32 and held
that the Legislature, in submitting the constitutional amend-
ment, and the people, in adopting the 1935 amendment, in-
tended that counties, justice's precincts and cities should
be on Annequal footing and that by complying with the pro-
visions of the law any of them might hold an election to
legalize or prohibit the sale of alcoholic beverages; and
that a city located within a dry county may vote to legalize
the sale of alcoholic beverages within the corporate limits
of the city,
         In Mayhew v, Garrett, 90 S.W.2d 1104 (Tex.Civ.App.
1936, error ref.) the Court held that the constitutional
amendement (Art, i6, S 20 of August 24, 1935, and Vernon's
Penal Code, Arts. 667-l(b     666-23 did not purport to act
retroactively to validate-or ratify elections illegally held
in justice   precincts, towns or cities located wholly within
drv counties under the constitutional amendment of 19??.
Article 16, Section 20 of the TexasConstitution,     This
                                                      ----
opinion in conjunction with the                   and Coker v.
Kmelcik opinions, supra, clear1                   election held
orior to the constitutional amendment of 1935 in a justice
precinct, town or city located wholly within-a dry county is
void.
       In applying the above decisions to the facts sub-
mitted in your opinion request, It is the opinion of this
office that Cooke County was a dry county on April 28, 1934,
and on July 20, 1935. Therefore, since the elections were
held in Justice Precincts 1, 4, 5, and 8 prior to the 1935
constitutional amendment, such elections were unauthorized
and void, and do not legalize the sale of beer in said pre-
cincts.
                      SUMMARY
             In dry counties, local option elec-
       tions In justice precincts and incorporated
       cities and towns, held prior to the 1935
       amendment of Section 20 of Article 16 of the
       Texas Constitution are void elections, and
       do not legalize the sale of beer therein.
                                   Yours very truly,
                                   WAGGONER CARR
                                   Attorney General of Texas
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Honorable William B. Sullivant, Page 4 (C-715)




                                    Assistant Attorney General
DHC/dt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Lonny F. Zwlener
Mary K. Wall
John Reeves
Sam Kelley
APPROVED FOR THE ATTORNEY GENERAL
By T. B. Wright




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