                        August 3, 1961

Honorable Doug Crouch         Opinion No. WW-1104
District Attorney
Tarrant County                Re:   In an area which has le-
Fort Worth, Texas                   galized the sale of beverages
                                    containing alcohol not in
                                    excess of fourteen per centum
                                    (14%) by volume can a "pro-
                                    hibitory" election be called
                                    by the presenting of any issue
                                    other than those set out as
                                    (ml, (n), (0) and (p) in Art.
Dear Mr. Crouch:                    666-40 of the Penal Code?
        You have requested an opinion of this Department on the
above subject matter on issues involving local option elections.
Your letter reads in part as follows:

             "(1) In an area which has legalized the
       sale of beverages containing alcohol not in
       excess of fourteen per centum (14%) by volume
       can a 'prohibitory' election be called by the
       presentin of any issues other than those set
       out as (m            and (p) in Art. 666-40
       of the Pe!~l(~kebo)
             "(2) In an area where the sale of beverages
       containing alcohol not in excess of fourteen per
       centum (14%) by volume has been legalized would
       not a petition for an election on the issues of
       'for the legal sale of all alcoholic beverages'
       and 'against the legal sale of all alcoholic
       beverages' be construed exclusively as a 'le-
       galizing' election so that an affirmative %te
       would result in increasine leealiaation and a
       ne ative vote in retaininz the status quo?
       F---
        Emphasis added.)
             "My questions are prompted by a situation which
       has arisen in Tarrant County. On about September 10,
       1960, the voters of Precinct 7 in this county at an
Honorable Doug Crouch, Page 2   (w-w-11041

        election called for that purpose pursuant to all
        statutory provisions voted to legalize the sale
        of beer and wine for off-premises consumption only.
        Residents of the precinct seeking the prohibitory--
        nota legalizing -- election have presented to the
        County Judge and Commissioner's Court of Tarrant
        County a petition for an election upon the issues
        of 'for the legal sale of all alcoholic beverages'
        and 'against the legal sale of all alcoholic
        beverages."' (Emphasis added,)
        The uestions presented are controlled by the provisions
of Articles %66-32, 666-35 and 666-40 of Vernon's Penal Code which
were passed pursuant to Article XVI, Section 20 of the Constitution
of Texas.
        Article 666-40 is the law controlling the submission of
issues in an election of this kind, and we agree with your analysis
of this statute which we quote from your letter as follows:
              "'In areas where any type or classification
        of alcoholic beverages is prohibited and the issue
        submitted pertains to lepalization of the sale of
        one or more such prohibited types or classifications,
        one of the following issues shall be submitted:

              "(a) 'For the legal sale of beer' and 'Against
        the legal sale of beer.'

              "(b) 'For the legal sale of beer for off-
        premise consumption only' and 'Against the legal
        sale of beer for off-premise consumption only.'

              "(Cl 'For the legal sale of beer and wine'
        and 'Against the legal sale of beer and wine.'

              "(d) 'For the legal sale of beer and wine
        for off-premise consumption only' and 'Against
        the legal sale of beer and wine for off-premise
        consumption only.'
        beveran!;i 'For the legal sale of all alcoholic
              R    and 'Against the legal sale of all
        alcoholic beverages,'
              "(f) 0 0 c."
*-   .




         Honorable Doug Crouch, Page 3    (ww-1104)
                       "The second portion of the statute is to
                 be applied to those areas where the sale of &
                 alcoholic beverages has previously been legalized
                 and sets out issues (g) through (1). The third
                 portion of the statute is that applicable to
                 Precinct 7 of Tarrant County, quoted above, and
                 setting out issues (ml through (p). The fourth
                 portion of the statute is applicable only to areas
                 where the sale of beer containing alcohol not ex-
                 ceeding four per centum by weight has been legal-
                 ized and sets out issues (q) and (r). The first
                 part of the statute, therefore is legalizing --
                 the other three parts are prohibiting. The legal-
                 izing issues are Peneral -- the prohibitory issues
                 are specific and must be worded 'to suit nre-exist-
                 inz situations in the area involved.'
                       "The issue presented in the petition to the
                 County Judge and Commissioners' Court of Tarrant
                 County -- ' for the legal sale of all alcoholic
                 beverages' and 'against the legal sale of all
                 alcoholic beverages' -- is identical with issue
                 (e) in Part One of the statute and is therefore
                 available as a legalizing issue. The same phrase-
                 ology is also contained in the second part of the
                 statute as issue (k) and is, therefore, available
                 as a prohibitory election issue but only in areas
                 'where the sale of all alcoholic beverages has been
                 legalized.' That is n,otthe situation in Precinct
                 7 of Tarrant County. Obviously if it had been the
                 intent of the Legislature to permit the issue --
                 'for the legal sale of all alcoholic beverages' and
                 'against the legal sale of all alcoholic beverages'
                 -- to be used in an area where the sale of beverages
                 containing alcohol not in excess of fourteen per
                 centum by volume has been legalized, then obviously
                 the Legislature would have included those issues in
                 the third part of the statute. Since the statute
                 is exclusive and mandatory as to the issues which
                 may be submitted the omission of those phrases from
                 the third and fourth portions of the statute make
                 the issues unavailable for a prohibitory election
                 in any area defined in either the third or the fourth
                 part of the statute.
                       "The above construction of the statute is not
                 only in conformity with previous opinions issued by
                 the office of the Attorney General, it is the only
                 lo ical construction which can be given to Art.
                 66&O."    (Emphasis ours.)
Honorable Doug Grouch, Page 4        (WW-1104)

        This construction is consistent with a previous con-
struction of this statute b Attorney General John Ben Shepperd
in Opinion No. MS-149 (19547 and prior opinions by Attorneys
General Gerald Mann (Nos. O-2114 and O-5244) and Grover Sellers
(No. O-6917) dealing with the statute prior to its amendment
in 1953.
        Your analysis also harmonizes with the followin court
decisions hearing upon the subject:. Smith v. Counts, 282 S.W.2d
422 Civ.App. 1955); Fox v. Burgess, 157 Tex. 292, 302 S.W.2d
405 I1957); Sumrow v.,Sterrett, 304 S.W.Zd 609 (Civ.App., 1959);
and Myers v0 Martinez, 320 S.W.2d 862 (Civ.App. 1959).
        In answer to your first question, you are therefore
advised that a prohibitory local option election in Precinct 7
of Tarrant County, in which area the sale of alcoholic beverages
containing alcohol not in excess of fourteen per centum (14%)
by volume for off-premise consumption only has been heretofore
legalized, may be held only under Section (p) of Article 666-40,
V.P.C.
        In answer to your second question, you are further ad-
vised that an election on the issues "for the legal sale of all
alcoholic beverages" and "agafnst the legal sale of all alcoholic
beverages" held upon the presentation of a petition validly calling
for such a legalizing election in an area where the sale of bever-
ages containing alcohol not in excess of fourteen per centum (14%)
has been legalized could, upon an affirmative vote, produce the
effect of greater legalization but a negative vote could not have
a prohibitory effect and would, therefore, mean that the pre-
election status of the area would be retained.
                                SUMMARY
                  (1) A prohibitory local option election
            in Precinct 7 of Tarrant County, in which area
            the sale of alcoholic beverages containin
            ho1 not in excess of fourteen per centum ?1$O-
            by volume for off-premises consumption only has
            been heretofore legalized, may be held only
            under Section (p) of Article 666-40, V.P.C,
                  (2) An election on the issues "for the
            legal sale of all alcoholic beverages" and
            "against the legal sale of all alcoholic bever-
            ages" held upon the presentation of a petition
            validly calling for such a legalizing election
            in an area where the sale of beverages contain-
            ing alcohol not in excess of fourteen per centum
            (14%) has been legalized could, upon an affirma-
            tive vote, produce the effect of greater legal-
I-   -




         Honorable Doug Crouch, Page ~5   (ww-1104)

                 isation but a negative vote could not have a
                 prohibitory effect and would, therefore, mean
                 that the pre-election status of the area would
                 be retained.
                                          Yours very truly,
                                          WILL WILSON
                                          Attorney General of Texas


                                          By/&           /c
                                             Harris Toler
                                             Assistant Attorney General

         HT:ca
         APPROVED:
         OPINION COMMITTEE
         W. V. Geppert, Chairman
         John Stienberger
         L. P. Lollar
         Elmer McVey
         John Leonars
         REVIEWED FOR THE ATTORNEY GENERAL
         BY: Houghton Brownlee, Jr.
