..     -




     Honorable James Vi.Stravm
     county attorney
     'NillacyCounty
     Raymondville, Texas

     %ar   Sir;                        Opinion No. O-4466
                                       Re: Whet is the legal status of
                                            a politioal subdivision in a
                                            county when said political
                                            subdivision is dry as to four
                                            per cent beer and the county
                                            is wet as to malt and vinous
                                            beverages that do not contain
                                            alcohol in excess of fourteen
                                            per cent by volume?

                Your letter requesting the opinion of this department on
     the above stated question reads as followsr

                 "I would like an opinion on the following question:
            'Illhatisthe legal status of a political subdivision in
            a county when said political subdivision 1s dry to four
            (4%) per cent beer, and the county is wet as to fourteen
            (14%) per cent beer?'

                 "An unusual situation has again arisen in this
            county and ,Iwould like to give you a little of the
            history so you may answer this question. In 1937 all
            alcoholic beverages were prohibited in the county; in
            1936 four (4%) per cent beer was legalized within the
            county; later an election to legalize all alcoholic
            beverages failed to carry; in 1939 four (4%)per cent
            beer was legalized in the aounty; in 1941 four (4%) vir
            cent beer was prohibjted in the county: and in 1942 the
            sale of fourteen (14%) per cent beer and wine was
            legalized. tiring the time that the county was wet as
            to the sale of (4%) per sent beer Precinct 2 and the
            City of Lyford, by local option elections, voted to
            prohibit the sale of four (4%) per cent beer.

                 "The situation is in short that we have a precinct
            and a city in the county which are dry as to the sale
            of four (4%) per oent beer, and the county is wet as
            to fourteen (1496)per cent beer and wine. There have
Honorable James W. Strawn, page 2           O-4466




     been no city or precinct elections to prohibit the
     sale of fourteen (14%) per cent beer and nine.

          "The law is well established in the casss show-
     ing that a county wide election oan in no instanoe
     have the effsot of legalising intoxioante in dry
     precincts or cities. These cams ars set out in
     numerous opinions handed down by you and for that
     reason ars not pointed out. However, in all of those
     oases there has never been a situation, in so far as I
     am able to determine, whore the question of various
     degrees of wetness wsre involved--it was just a question
     of whether the subdivision was net or dry.

          "You will notice in this instance that the
     preoinot and oity in question are not dry as to
     fourteen (14%) per cent beer and wine sinae that
     issue and the issue on prohibiting all alcoholio
     beverages have never been voted on by them as units.
     It would therefore seem that the only question in-
     volved is whether or not said subdivisions may sell
     beer or four (4%) per sent and under, because it
     seems alear that they oan sell beer and wine contain-
     ing alaohol between four (4%) and fourteen (14%) per
     cent. After considering the question very saricurly
     I am inolined to the view that the status of said
     subdivisions ae to four (4%) per cent beer has no
     effect at this time because the entire county is
     wet a8 to fcurteen (14%) per cent beverages. At
     any time in the future when the county was wet ae
     to only four (4) per cent beer, then the status would
     be material and they would be dry as to the four (4%)
     per cent beer. But, under the present oondition, the
     status on four (4%) per cent bser is one whioh is not
     to be oonsidered at this time.

          "The argument oan be advanced that these sub-
     divisions are dry ae to four (4%) per cent beer
     and that no vote by the oounty, a6 a whole, ban in
     any way have the effect of legaliring the eale of
     light beers in said subdivision. This argument i8
     sound and must be aooe ted ie the question 81)to the
     statue on the four (4%P per sent issue Is considered
     material.

          "I am inclined to think that said subdivieion6
     are wst for the sale of beer and wine up to fourteen
     (14%) per oent and that they will remain so until suoh
     time as they vote for prohibiting the sale of beer
     and wine not to exoeed fourteen (14%) per oout."
Honorable James W. Strawn. page 3            O-4466




           Ry virtue of the Texas Liquor Control Act (Article 868-32,
Vernon's Annotated Penal Code) any county in the State, justice precinct,
or any incorporated city or town, in compliance with said Act, may hold
a local option election to determine whether or not the sale of liquors
shall be prohibited or legalited in such county, justice precinct, or
incorporated city or town.

           For the purposes of this.opinion, where you have referred tc
"Precinct 2" and the city of Lyford, we assume that you refer to a
justice precinct and an incorporated tomn.

           Prcm the facts stated in your letter, as quoted above, it
is apparent that in 1941 by local option election the sale of beer not
containing alcohol in excess of four per oentum by weight was prohibited.
Therefore, it naturally followed that all alcoholic beverages mentioned
in the Texas Liquor Control Act could not be legally sold. However, in
1939, the county as a whole, by local option legalised the sale of beer
which did not contain alcohol in excess of four per centum by weight.
During the time the sale of beer not containing alcohol in excess of
four per centum by weight was legalized by a looal option eleotion, the
above mentioned justice precinct and the City of Lyford prohibited the
sale of such boor by a local option election and under the facts stated,
said precinct or city, as such, has not changed their status,

           Vnder the facts stated, in 1942, the~oounty as a'whols legal-
ized the sale of malt and vinous beverages not containing aioohol in
excess of fourteen per centum by volume by local option election. Al-
though the ccuntyas awhole by virtue of said election was "met" with
reference to the sale of malt and vinous beverages not containing aloahol
in oxcoss of fourteen per aentum by volume the status of the precinct
and city above mentioned remained the same as established by the last
local option election held in such precinct and city. By virtue of the
last local option election hold in said precinct and oity, each was
"dry" as to all alcoholic beverages mentioned in the Texas Liquor Control
Act.

           We think that it is well established that the status of the
above mentioned precinct and city mill remain dry as established by
the last looal option election in each, until the status of each is
changed by a local option election. The fact that the county as a
whole has legalieed the sale of malt and vinous beverages not contain-
ing alcohol in excess of fourteen per centum by volume does not alter
cr change the status of the precinct and city heretofore mentioned.

           We think the conclusion reaohed herein is supported by the
following cases: Talley v. Binsan, 96 S. W. (Zd) 94; Rockholt v.
State, 126 S. W. (2d) 4881 Coker v. Kmoicik, 87 Si W. (Zd) 1076, and
Iicuohinsv. Plainos, 110 S. W. (2d) 549. Jackson V. State, 118 S. 'N.
(2d) 313.
Eonorable James W. Strawn, page 4              O-4466




           Trustbe   that the foregoing fully answem    your inq,uiry,WC
are


                                        Yours very truly

                                    ATTORNEY G%;i%RAI.
                                                     OF TEXAS



                                        Py s/Ardell Williams
                                             Ardell.Williams
                                                   Asaj.stant




Approved Opinior:Committee By-~MB   Chairman
