             E        0            GENERAL
                     OF     EXAS




                      October 5, 1960


Mr. Dean Martin              Opinfen No. WW-945
County Attorney
Sh.erman,Texas               Re:   If a county wide local
                                   oIjtlon‘electionwere held
                                   in Qrayson County result-
                                   ing in a dry vote, what
                                   effect would such election
                                   have on the local option
                                   election held by the City
Dear Mr. Martin;                   of Denlson on July 9,1960?

         Your request reads In part as follows:

          “The facts are these. During the year 1942,
     an election was held in Grayson County, in which
     the county was voted dry, thus prohibitingthe
     sale of beer therein. Since the year 1942 and
     until the month of July, 1960, the entire county
     remained dry. The City of Denison is located In
     Crayson County, Last Saturday, July 9, 1960, a
     local option election was held,.which Involved
     cnly,,thecitizens wfthln ‘thecorporate limits of
     the-City of Denison, with the result that safd
     cfty’voted for the sale of alcoholic beverages.
     The remaining portion of Crayson County is dry.
     It is now contemplated that a county wide election
     will be held fn the near future for the’purpose
     of attempting to nullffy the Denfson election,
     should the county vote itself dpyy. With the above
     in mind, I would appreciate your furnishing me
     with answers to the following questions, to-wit:

          I’1D If a county wfde election were held in
     the near fut,rreand the county should vote dry,
     would Et have any effect on the Denis,onelection
     held on July 9, 1960?
          “2 * If a county wide election were to be
     held in the near future, would the citizens of
     Denfson be eligible to participate in such an
     election?
                                                  P     .

                                                                 ‘I




Mr. Dean Martin, page 2 (WW-945)

         “3. After the expiration of one (1) year from
    July g9 1960, (the date the City of Denlson voted
    for the sale of alcoholic beverages), If a county
    wide election were held and the majority of the
    citizens in the County voted against the sale of
    alcoholic beverages, would that have the effect
    of nullifying the result of the election held in
    Denison on July 9, 1960, or can such election be
    nullified ONLY by the citizens of Denison?"

          In Attorney General's Opinion No. ~~-387, of March
6, 1958, we held that a city in a dry county could not hold
an election to determine Its status independently of the dry
county; that the will of the county controlled the will of
the city. This was prior to the Myers v, Martinez case(lnfra).
          The case of Myers v. Martinez, 320 S.W.2d 862 (Tex.
                                  per curium opinion 326 S.W.
                                  contrary to Attorney General's
                                  controlling here. The following
extracts from this case are pertinent:

          "Appellant further contends that the theory




          "It fs plain from the provisions of the 1935
     amendment and the statute enacted thereunder, that
     the Legislature in submitting the constitutional
     amendment and enacting the statute, and the people
     fn adopting the 1935 amendment, Intended that coun-
     ties, justfcels precfncts and Incorporated cities
     or towns should be on an equal footing, and that
     by complyfng with the provisions of the law either
     of them might hold an election any time to either
     "legalize" or "prohibit" the sale of alcoholic
     beverages, in keeping with the provisions of Sec.
     40. Art. 666. Vernon's Ann. Penal Code, The only
     limitation is that an election for the same purpose
     in the same area must not be held oftener than once
     a year, as is provided by Article 666-32, which reads
     En part as follows:
   .     ‘.




Mr. Dean Martin, page 3 (VW-9451


             ‘No subsequent election upon the same issue
       shall be held within one (1) year from the date of
       the last preceding local option election in any
       county, justice’s precinct, or Incorporated city
       or town e’” (Emphasfs added. )

          We believe that the foregoing holdings of the court
leave no doubt that a county wide local option election, either
In the near future or a year from the,date of the Denison local
option election, would have no effect upon the results of the
local option electionin the City of Denfson on July 9, 1960.

          To hold otherwise would not only result in a county
wide election that voted “dry”, to cause “wet” cities, towns
and justice9 precincts which had theretofore voted “wet” to
become ‘dry”, but would also result In a county wide election
that voted “wet” to cause “dry” cities, towns and justice’s
precincts which had theretofore voted “dry” to become “wet”.
Such result would be contrary to the will of the voters In the
cities, towns and justice’s precincts and the holding in Myers
v. Martinez, supra, and the wording of the 1935 Constltut‘ional
Amendments
          The results of any city wide local option election
in the City of Denlson can be changed by a subsequent city wide
local option election for the same purpose not less than one
year from the date of the last city wide local option election.

          Under the plain language of the Texas Constitution
and statute, the qualified voters who are residents of the City
of Denfson are entitled to vote In a county wide local option
election along with the other qualified voters of the county
who reside elsewhere in the county. Article 16, Section 20,
Paragraph (b) of the Constitution of Texas; Section 32, Article
666, Vernon9 Ann ~ Penal Code.


                             SUMMARY


            1. A county wide local option election,
       either In the near future, or a year from the
       date of the Denison local option election,
       wou$d have no effect upon the results of the
       local option election in the City of Denison
       on July 9, 1960.
Mr. Dean Martin, page 4 (w-945)

          2.  The qualified voters who are residents
     of the City of Denlson are entitled to vote in
     a county wide local option election along with'
     the othe,rqualified voters of the county who
     reside elsewhere In the county.

                             Very   truly yours,
                             WILL WILSON




PF:dhs

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Thomas Burrus
B, H, Tlmmfns
REVTXWJXDFOR THEATTQRNJZYQENERAL
BY: Leonard Passmore
