Gerald C. Mann                AEJSTKW   aa. T-s
                     ED




    Hon. 0. Kennedy          Opinion    No.   04658
    County Attorney          Re:    Sufficiency  of petition re-
    Bee County                      questing local option elec-
    Beeville,  Texas                tion.
    Dear Sir:

               This will acknowledge receipt of your letter of
    November 6, 1939, in which you seek the opinion of this
    Department on the question of whether or not a proposed
    local option petition,  a copy of which is attached to your
    letter, is sufficient.
               You advise that Bee County Is *‘wet” and that the
    sale of all liquors,  including beer and wine, is now legal
    and that an election  is to be held to determine whether
    such county is to remain nwetN8.
              You further advise that the “dry forces in this
    county want to present to the commissioners’ court a peti-
    tion to order a county-wide election  to submit to the vot-
    ers the question of whether or not the sale of all liquors
    should be prohibited.”   We assume that such proposal con-
    templates the inclusion  of beer, and it Is upon this assump-
    tion that this opfnion is based.
                 A review of the definitions    of llalcohollc bever-
     age ‘I and 811iquorn contained in the Texas Liquor Control Act
     reveals the necessfty     of limiting  the opinion to the assump-
     tion just made.
                t*Alcoholic beverage” as defined by the Act “shall
     mean alcohol and any beverage containing more than one-half
     of one per cent of alcohol by volume which is capable of
     use for beverage purposes, either alone or when diluted.”
                  “Liquor” as defined by the Act, “shall mean any
     alcoholic    beverage containing   alcohol in excess of four per
     centum by weight* unless otherwise indicated..       Proof that
     an alcoholfc     beverage is alcohol    spirits of wine, whiskey,
     liquor,   wine brandy, gin, tequilia,     mescal habernero or
     harreteago,     shall be prima facie evidence i hat the same is
     liquor as herein defined.‘”
                                                                     . . . -.
Hon. 0. Kennedy, page 2


           Thus, it Is clearly  seen that alcoholic     beverage
includes liquor,   beer, wine &d  all  other  alcoholic   drinks
containing  alcohol of more than  one-half   of  one  per cent by
volume.
             The proposed   petition   reads:

             “LOCALOPTIONELECTIONPETITION
     “TO TRE HONORABLE
                     COMMISSIONERS’
                                 COURTOF
     BEE COUNTY,TEKAS:
            “We, the undersigned, constituting    at least
     ten per cent (10%) of the qualified     voters of
     Bee County, Texas, according to the vote for Gov-
     ernor of the State of Texas in the general elec-
     tion next preceding this petition,     respectfully
     petition   your honorable body to order an election
     in Bee County, Texas, at which election      there
     shall be submitted te following      question:
           “!For prohibiting      the sale      of eJl alcoholic
     liquors. V
             UIAgainst prohibiting     the sale     of all   alco-
     holic    liquors.’
                            Respectfully     submitted,”
           A close examination of the Texas Liquor Control Act
does not reveal a form to be used for the petition  to the com-
missioners’ court.
             Section   32 of such Act provides        in part:
            “The Commissioners Court of each county in
     the State upon its own motion may order an elec-
     tion to be held by the qualified          voters in said
     county, to determine whether or not the sale of
     liquors   shall be prohibited       or legalized     in such
     county, and such Court shall order a local option
     election   whenever petitioned       to do so by as many
     as ten (10) per cent of the qualified            voters of
     said county, or of any justice         precinct,     city or
     town, taking the votes for Governor at the last
     preceding general election         as the basis for de-
     termining the qualified        voters in any such county,
     or political    subdivision....@
.   a,.


          Hon. 0. Kennedy, page 3


                      Section 40 of the Act provides that the commission-
          ers’ court may, as provided in Section 32, supra, order an
          election  for the purpose of determining whether alcoholic   bev-
          erages of various types may be legalized    or prohibited. The
          second provision    of Section 40 of the Act reads:
                       “In areas where the sale of all alcoholic  bev-
                erages has been legalized   one or more of the fol-
                lowing issues shall be submitted in any prohibitory
                election: I8
          Under such orovision there. appear several propositions   that may
          be submitted, among which is sub-section   (f) and reads:
                      “‘For prohibiting  the sale of all alcoholic
                beverages’ and ‘Against prohibiting   the sale of
                all alcoholic  beverages. 111
                       Looking to the form of petition   presented as herein-
          above quoted, we believe the same to contain the requisites
          pointed out in Section 32, supra, with exception that the word
          “anI1 appearing in line 5 of the body of the petition      should
          be changed to “art and followed by “local     option”,  so as to here-
          after read I(... respectfully    petition  your honorable body to
          order a local option election..     ..w We likewise believe the
          propositions    to be submitted, bearing in mind the assumption
          upon which this opinion is based, should read:
                      “For prohibiting   the sale of all alcoholic
                beverages” and “Against prohibiting     the sale of
                all alcoholic   beverages. *‘
                      Trusting   that we have satisfactorily   answered your
          inquiry,   we are
          APPROVED NOV 17, 1939                    Very truly yours
          /s/ Gerald C. Mann                       ATTORNEY  GENERALOF TEXAS
          ATTORNEY  GNNNRALOF TEXAS                BY /s/ Lloyd Armstrong
                                                   Lloyd Armstrong. Assistant
          APPROVED:OPINIONCOMMITTNN
          BY:     BWB, CHAIRMAN
          LA:AW:wb
