                                                    February                4.    1975


The Honorable              George          E.    McCrea                                  Opinion          No.        H-       515
Tom      Green      County         Attorney
301 Courthouse                                                                           Re:     Scope          of local        option
San Angelo,          Texas          76901                                                election         where           dry       area
                                                                                         redistricted                into     wet
                                                                                         precinct.


Dear      Mr.     McCrea:


            You     have      submitted             a series              of questions            having            to do with         local
option     liquor        elections.             Your        first     question           is:


                           Does       the tract         of land            presently           in Justice
                           Precinct          No.       2,    which         had been            in Justice
                           Precinct          No.       3 prior            to redistricting,                   re-
                           tain its        status      as     being         dry    for     the sale            of
                           beer?


          <You      explain         that     the owner               of a store          on a tract             of recently             redistri~cted
land    in San Angelo             wants         to sell       beer.             Before         the redistricting                    the tract
was     in Justice        Precinct           3 which          &as         dry    for     all    purposes,               but it is now in
Justice     Precinct          2 which           was,        and is,         wet for            the sale         of beer.


         We answer   your first question   in the affirmative.                                                          In the absence
of an election changing   its status,  the tract  remains    dry                                                     even      though      it is
now attached           to a wet-for-beer                     precinct.             vouchins              v.     Plainos,            110 S. W. 2d
549    (Tex.      Sup.     1937);       Goodie              Goodie         Sandwich,~            IInc.    V.        State,      138 S. W. 2d
906    (Tex.      Civ.     App.       --Dallas              1940,         writ    dism.         jdmt.          co=.);        Attorney
General         Opinion      H-97       (1973).


            Your     next      three        questions               ask    if voters           living         in any part            of the
newly     expanded          Justice         Precinct            2 are        authorized            to apply             for    a local
option     election,         sign     the petition              therefor,              and vote          in a local            option




                                                                p.        2322
                                                                                                                                               .   .




The     Honorable         George         E.     McCrea               page      2         (H-515)




election       to legalize         the sale          of beer         on the tract                in question.


           Our     answer          to each          of the above             questions             is    “yes.        ”     Justice
Precinct        2 is a new voting               unit wholly                contained,             we understand,                     within
the City       of San Angelo.              At present,                part     of it is           wet and part               dry     because
each    part     retains     its     previous          local         option         status.            Now,       however,              they
compose         an indivisible           voting        unit for            liquor        local      option        purposes,              and
any local       option     election           will    affect        all     parts        alike.          Article          16,    section
20(b)    of the Texas           Constitution,               reads          in part:


                                  The    Legislature                shall     enact         a law        or laws
                         whereby          the qualified               voters         of any         county,           justice’s
                         precinct         or incorporated                    town         or city,         may        by a
                         majority         vote        of those            voting,         determine             from         time
                         to time         whether        the         sale     of intoxicating                liquors,for
                         beverage             purposes          shall        be prohibited                 or legalized
                         within         the prescribed                limits         .    . .     . (Emphasis               added)


             In Griffin      v.     Tucker,            118 S. W.             635         (Tex.     Sup.         1909),       the       Texas
Supreme          Court     in considering               a different                but similarly                 couched           version
of article       16,   section          20 of the       Texas             Constitution,                 said:


                         It implies            that the determination                            of the question                of
                         prohibition            in a county                or a subdivision                 once          made
                         is not to be perpetually                          binding,             and that provision
                          shall     be made           whereby              the voters             therein         shall         have
                         opportunity             to vote        upon it from                 time        to time;           but it
                         prescribes             no rule         from         which         the effect            of an elecl
                         tion     in one        subdivision                upon     the right            of the voters
                         in another            is    to be determined.                           The     framing           of the
                         law      so that       the right            intended            to be secured                to the
                         voters         in the localities                  may      be exercised                 is       expressly
                          committed             to the Legislature,                        and we must                look       to the
                          statutes        in order          to determine                   as     to the validity  of
                          such     elections           as   that in question.                        118 S. W. at 638.




                                                               p.     2323
The Honorable               George          E.     McCrea                 page      3       (H-515)




            Article         666-32,          of the Penal                 Auxiliary              Laws,         is     the statutory
provision        which        now governs                 local          option     elections.                 It was         amended
in 1973     inter     alia        “to    determine                and     clarify         which         political            subdivision
shall     prevail      when         there         are    conflicting              results          from          local       option
elections        in differing             and/or         over-lapping                   political         subdivisions.                 ” Acts
1973,     63rd      Leg.,          ch.     799,     p.       508.         This      provision             was         added:


                                   Any      authorized               voting        unit,         that is,         any        county,
                            justice        precinct,              or incorporated                     city     or town           which
                            has     at any time               heretofore                exercised            or may           at any
                            time        hereafter            exercise            the right            of local          option,         shall
                            retain        the status              adopted,          .     . .    until       that       status     is
                            changed         by a subsequent                       local     option           election          in the
                            same         authorized               voting      unit;       provided,               however,             that     .    .   .
                            in order         to insure              that     each        voter         shall      have        the maximum
                            possible         control              over     the     status         of the         sale     of alcoholic
                            beverages             in the area               of his        residence,                 it is    specifically
                            provided          that the             status     which             resulted          from        or is the
                            result        of a duly           called        election            for     an incorporated                   city
                            or town         shall        prevail          as against              the     status         which        resulted
                            from         or is the           result        of a duly            called       election           in a
                            justice        precinct            or county            in which             such        incorporated               city
                            or town,          or any          part        thereof,          is contained:                 and provided,
                            further,         that       the status            which         resulted             from         or is     the
                            result        of a duly           called        election            for     a justice            precinct
                            shall        prevail        as    against         the        status        which          resulted          from
                            or is the result                  of a duly           called          election           in an incorporated
                            city     or town            in which           such     justice            precinct          is wholly
                            contained             or in a county                 in which             such       justice        precinct
                            is located.


            We      believe         this     statute          requires            that      the local            option         status        of a
county,      justice         precinct,             or incorporated                      town      or     city,        once      determined
by election,          cannot            be changed             except        by a subsequent                         election      in&e         same
voting     unit which             made      the     earlier              determination,                  assuming              the boundaries
of the county,          precinct,                town        or    city     remain          the        same.            If a county,            precinct,
town     or city      ceases            to exist        after       having         determined                  its    local      opinion            status
by election,          or if a part               of a county,               precinct,             town       or city          that has




                                                                    p.    2324
The Honorable                  George             E.     McCrea               page         4         (H-515)




previously              determined                its    local     option           status           by election              ceases        to be a
part       thereof,           or becomes                 a part      of a different                   unit,      the area             retains           the
local      option         status       of its           former       identity,             and cannot                acquire          a different
status       until      its    occupants                have     an opportunity                      to vote         on the question                    at
the same           voting           unit level           at which           its     status           was      acquired            or at a more
“local”         voting        unit level.                Thus,         a portion               of a dry         precinct             which        was
redistricted              into      another             precinct        could         change            its    local         option        status        by
an election             in the new               precinct         or in a city                 or town          contained             therein.


                There         is    dictum          in Houchins                   which         suggests             a different            conclusion,
but Houchins               was        decided            under       a different                statutory            framework               and held
no more            than that a dry~ city                       could     not be made                   into      a wet         city    by simply
dissolving            the city         and transferring                       the territory                   into     another            city    that
was      wet.           Warren             v.    Moore,           337       S. W. 2d 395               (Tex.           Civ.       App.       --Amarillo
1960,      writ     dismd.);                Myers         v.     Martinez,                 320        S. W. 2d 862                (Tex.      Civ.        App.
--San       Antonio,               1959,        writ     ref.,       n. r. e.,          326       S. W. 2d 171).                   It has        also        been
held       that    since       the     Constitution                limits          local        option         elections             to counties,
justice       precincts,              and incorporated                        towns            and    cities,          an election               held        in
only       a portion          of a justice               precinct           was      void.            Patton           v.     Texas        Liquor
Control           Board,            293         S. W. 2d 99        (Tex.           Civ.         App.        --Austin              1956,      writ        ref.,
n.r.e.).


                Thus,         if a legalizing                  election           is held        on the question                     of “wet-for-
beer”       and carries,                   the entire            newly         constituted                 precinct           will     be wet           for
beer.        Attorney               General             Opinion        M-335          (1969);          Cf.      Attorney              General
Opinion           c-681        (1966).            If it fails,          the       status        of each          part         of the precinct
will     remain           as it is at present                     because            a negative                vote         in a legalizing
election          has     no prohibitory                   effect.            Attorney            General              Opinions            H-130
(1973),       H-59         (1973).              Note,      however,               that article                666-40b          requires            newly
created           political          subdivisions                to be in existence                        at least           18 months            before
a local         option        election            can     be held.            Attorney               General            Opinion           M-991          (1971).


              Your         last      question            asks      whether            a local           option          election           may      be held
in conjunction                with         and at the            same         time      as      a general               election,           and,        if SO,
whether           separate            election           officials,            ballot          boxes,          lists        and      returns        must
be used.




                                                                       p.     2325
The Honorable               George        E.     McCrea             page      5     (H-515)




            In Attorney            General         Opinion          O-2853         (1940),        written         by the Honorable
Zollie     C.    Steakley,         now Associate                Justice       of the Supreme                    Court        of Texas,
it was     concluded           that    the commissioners                     court        of a county             might      order        a
local     option     liquor        election        to be held         on general               election         day,    at the same
time,      at the     same       polling        places        and under           the     supervision              of the same
election        officers.          But it was           considered           indispensable                to the integrity
of the ballot         that     different         boxes        be used       for     the two         elections           to receive
those     ballots      to be locked             and      sealed.          On the matter                of “lists”         the opinion
said     it would      not appear              necessary           that    separate            voter      lists      be furnished,
but that the         tally     and poll         lists     of the votes            cast     in each         election,          and the
returns         of each,       would      necessarily              have     to be separate                 and distinct.


            Attorney          General          Opinion        C-162        (1963)        could     be interpreted               as
suggesting          a different         result          in some       respects;           however,              the statute          on
which      that opinion          was      based         has   been        repealed,            and thus         we     see    no
reason      to question            the conclusion              of Attorney              General          Opinion        O-2853.


                                                        SUMMARY


                                   When        a portion       of a justice              precinct         is
                            redistricted           it does         not lose       its    local      option
                            status.       Its     status      may      be changed              in an elec-
                            tion held      in the new precinct                     or in a city            or
                            town      contained          therein.


                                                                                         ery     truly     yours,




                                                                                    Attorney             General        of Texas



                                 LL,      First         Assistant



C.     ROBERT%EA               TH,      Chairman
Opinion         Committee


LS




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