                        April 26, 1939


Hon. J. B. Rngledow
Assistant County Attorney
Limestone County
Groesbeck;Texas

Dear slr:~,. ~         : O&nion+o.    .O-634

                        Re: Effeht of-an eletitlon under
                             Te&s'Liquor   Control Act, where
                             ballots are'not oanvass~ed.nor
            ,:              ~result's deolared and whether or
                           'not Commissfoneraf Court auth-
                           ~or%zed~to call an eleutlon eub-
                             mitting proper ballots within
                             twelve months.

          With further referenoe to your letter of April
17th,.kSndlg be a,dvlsed that this Department has oonsider-
ed .your:request as oontalned therein; for an opinion based
upon facts set forth in your letter.

           Aoaordlng to your letter, a prohlbition eleotion
was held In Limestone County on August 7, 1909. At an
election, of Waroh 10, .1934, the sale of 3.2$ beer was
legalized by county-wide local option eleotionti On October
29, 1936, ,a special eleotlon was held ln Limestone County,
atwhioh time ,the follawlng ballot was submitted to the
voters:     ',

                   "OFFICIAL BALLOT

     "FOR -,Prohlbl&g    the sale of all alooholio
           'beverages
     itAGiINST - Prohibiting the sale of all alco-
            holio .beverage,st'

          We quote, further from your lette,r as followa:

        ' "On November 3, 1936, H. Laughlin, a holder
     of.a retail beer dealerts license, was granted a
     temporary injunotion by_,the 77th District Court
     of Limestone County against the Commissioners Court
     of Limestone County, :restrainlng said Commissioners
     Court. from canvassing tne ballots, deolaring and
                                             ?    L




Hon. J. B. Engledoa, April 26, 1939, page 2, O-654



    and publishing the results of such election, eta. On
    January 14, 1939, upon a final hearing of said cause,
    the Court made said injunction .,permanent and no
    appeal was perfected therefrom. The Plaintiff in his
    petition and the Court in rendering its judgment
    proceeded upon the theory that the wording of the
    ballot submitted did not oonform to the status of the
    county and did not comply with the provisions of
    Article 666-40 of Vernoncs annotated Penal Code.
         "VariOUS Citizens Of this county hav8
    expressed their intention of petitioning the Com-
    missioners Court to oall another b8e~r eleotion and,
    in order that we may intelligently advise the aOUrt
    wlth'reference thereto, we respectfully request yar
    advice upon the following questions:
          "1 . In view of the holding of the above re-
     ferred to election in Limestone County on Ootob8r 29,
     1936, would the Commissioners Court be authorized to
     call a beer election within twelve months after said
     date if properly petitioned to do ao?

          "2. If Suoh an eleotion may now be legally
     called, what form of ballot should be Submitted?"

         The provisions of the Texas Lkquor Control Aot,
as found,inVernonts Annotated Penal Code of Texas, 1925,
are set forth under ArtiOl8 661-l et seq. end Artiole
667-l et seq. &rtiol&.666-32';rBad& as .followst

          "The Commissioners Court. of each County in
     the State upon its own motion may order an eleotion
     to be held by the qualified voters in said county,
     to determine whether or not the sale of liqUoP8
     shall be prohibited or legalized In suoh county,,and
     such court shall order a loaal option eleation when-
     ever petitioned to do 80 by a8 man as ten (10) per
     cent of the qualifled voters of.sa 9d oounty, or of
     any justiae precinat, city or town, taking the
     votea for Governor at the last preceding general
     election as the ba8iS for determining the qualified
     voters in any such county, or politioal subdivision.
     After the first loaal option els otion held a8 provided
     jn this Act, in any county, justios precinct, ln-
     corporated town, or city; no subsequent election upon
     the aam8 issue in the same political subdivision shall
     be held within one (1) mar from the date of the
     preceding local option 818CtiOn in said county, or
Hon. J. B. mgledow,   April 26, 1939, Page 3, O-634

     said political subdivision of said county."

          Artial8 666-40, and its relevant provisions, read:

          Yhe Commissioners~ Court upon it8 Own
     motion may, or upon petition as herein provided shall,
     as provided in section 32, Article 1, order local
     option elections for the purpose of det8XTTLiningwhether
     alcoholic beverages of the various types and alcoholic
     contents herein provided shall be legalized or
     prohibited... .

          "In areas where the sale of beer containing
     alcohol not exeeding four (4%) peraentum by weight
     has been legalized and all other alaoholio beverages
     are prohibited, the following issue shall be sub-
     mitted in any' prohibitory election:,~ .~

          “(I).  'For prohibiting the sale of beer
     containing alcohol' not exceeding four (496)per
     centum by weight,r and ‘A ainst prohibiting the
     sale of beer containing aB cohol not exceeding four
     (4%) per centum by w8ight.t1*

          Article 666-37, provides for the canvassing of
the returns of such election and deolaring the results
by th8 Conuuiasioners* Court by order entered, and provides
that such order declaring ths sale of liquor prohibited
within the ~territory involved "shall be held to be prima
facie eVid8nC8 that all the provisions of laws have been
complied with... .a

          'Article 666-40a, among other things, provides
that at any time within thirty days after the result of
any local option eleation held pUrsUant  to the prOViSiOnS
of the Yexas Liquor Control Act has b88n declared, a
contest may be filed with the District Court of the
county in which the election has been held, to have ori-
ginal and exclusive jurisdiction of all suits to contest
the same.
           It appears from the facts stated in your letter
that the ballot8 used in the election of Oatober 29, 1938
were never canvassed and that the results of said election
were never published or declared.   Until such votes are
canvassed, the results declared-and published, under the
provision8 of the Texas Liquor Control Act, no local option
election as provided for in the Act can be said to have
been held.
          Under the decisions of our appellate courts,
the wrong ballot was submitted to the electorate on the
Hon. J. B. Kngledow, April 26, 1939, page 4, O-654



above date, and same being not applicable to the status
of your county, would in effect render said election
voidable. Moyer vs. Kelley, 93 SW 2nd 502, writ dismissed;
Whitmire vs. State, 130 Tex. Cr. R. 372, 994 SW 2nd 742;
Flowers vs. Shearer, 107 SW 2nd 1049, Akers VS. Remington,
115 SW 2nd 714.
          In the absenca of an appeal from the order
granting the injunction, it further appears that the
District Court of Limestone County has, in effect, declar-
ed the election so held whiah was voidable, invalid. We
express no opinion as to the validity of said injunction,
as that question appear8 moot.
          The case of Mitchellvs.  McCharen,  119 SW 2nd
676, cited by you, appears to be authority up& the ques-
tion as to the right of the Commissioners~ Court on its
own motion or after being duly petitioned, to order a
looal option election wherein the proper issue will be
Submitted to the voters where the same issue has not
within one year pr8viously, been 80 voted upon.

          At the eleation of March 10, 1934, the oounty
as a whole, according to your letter, legalis8d the sale
of 3.2$ beer. That fixing the status of your aounty,
the county-wide local option election subsequently tobe
called upon such tissue as authorized by the Act would be
a prohibitory one and a8 set forth above, paragraph (l),
Artiole 666-40 would be the proper ballot to be used.
This is in accord with prior rulings of this Department,
and whiah is also held in our opinion O-286, to which YOU
refer in your letter and we assume a copy of this opinion
rendered to Hon. BertFord on March 7, 1939, is availaole
in your office.

           It is, therefore, the opinion of this Department
that where an eleation is held submitting the wrong i8SUe
to th8 voters for the purpose of holding a local option
election, 'tid such ballots are not oanvassed nor the re-
aults declared or published, smae does not constitute suah
local option election as provided for under the provisions
of the Texas Liquor Control Act, Article 666-32, et seq.;
and being voidable, would not prohibit or render invalid
an order of the Commissioners~ Court ordering another
Hon. J. B. Engledow, April 26, 1939, page 5, O-654



election to be held for the same area within twelve months,
in which a proper issue is submitted.


                                   Very truly yours
                              ATTORNEY GENEFUL OF TEXAS

                              s/ Wm. J.R. King


                              BY         Wm. J. R. King
                                               Assistant




WmK:hW/cg

ipprove a:

a/ Gerald C. Mann

ATTORNEY GEWERAL OF TEXAS
