            THE      ATTORNEY            GENERAL
                          OF   TEXAS




Honorable Ralph M. Hall            Opinion No.   M-865
The Senate of Texas
Senate Chambers                    Re:   Constitutionality of
Capitol Station                          S.B. 925, 62nd Legis-
Austin, Texas                            lature, Regular Session,
                                         1971, relating to the
                                         status of an area annexed
                                         to a wet justice precinct
Dear Senator Hall:                       in certain counties.

     You have submitted for our consideration the consti-
tutionality of Senate Bill 925, 62nd Legislature, Regular
Session 1971, same being a proposed amendment to Section
23,,Article I of the Texas Liquor Control Act, codified as
Article 666-23, Vernon's Penal Code, the pertinent por-
tion of which as originally introduced, reads as follows:

     "Provided, however, that whenever the Commissioners'
     Court of any county in the state of over 350,000
     population according to the last federal census
     shall annex areas to any justice precinct desig-
     nated as a 'wet area', the annexed portion shall
     become wet if its prior status was that of a
     'dry area', and such order of the Commissioners'
     Court attaching such portion of a dry justice
     precinct to a wet justice precinct will not
     serve to prohibit the sale of alcoholic beverages
     in the attached portion."

        Article 16, Section 20r Subsection (b) and   (c) of the
Texas Constitution adopted in 1935 specifically      repealed
State wide prohibition and granted authority to      the Legis-
lature to return the State to a system of local      option regu-
lation,    in the following language:

     "(b) The Legislature shall enact a law or laws
     whereby the qualified voters of any county, justice's




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     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; and
     such laws shall contain provisions for voting
     on the sale of intoxicating liquors of various
     types and various alcoholic content.

     "'(c) In all counties, justice's precincts or
     incorporated towns or cities wherein the sale
     of intoxicating liquors had been prohibited by
     local option elections held under the laws of
     the State of Texas and in force at the time
     of the taking effect of Section 20, Article
     XVI of the Constitution of Texas, it shall con-
     tinue to be unlawful to manufacture, sell, barter
     or exchange in any such county, justice's pre-
     cinct or incorporated town or city, any spiri-
     tuous , vinous or malt liquors or medicated bitters
     capable of producing intoxication or any other
     intoxicants whatsoever, for beverage purposes,
     unless and until a majority of the qualified
     voters in such county or political subdivision
     thereof voting  in an election held for such
     purpose shall determine such to be lawful;
     provided that this subsection shall not prohibit' ~~"" "'~
     the sale of alcoholic beverages containing not
     more than 3.2 per cent alcohol by weight in cities,,
     counties or political subdivisions thereof in which
     the qualified voters have voted to legalize such
     sale under the provisions of Chapter 116, Acts
     of the Regular Session of the 43rd Legislature."

     Pursuant to this constitutional mandate the Legislature
passed the Texas Liquor Control Act regulating the sale of
intoxicating beverages and providing for the holding of local
dption elections.  These provisions pertaining to elections
are codified as Article 666-32, et. seq., Vernon's Penal Code.

     The term "local option" is well understood by the Legis-
lature and the voters of Texas. A local option election is
a clear, valid declaration of the will of the voters, which
under the Constitution and statutes they have a right to au-
thoritatively establish.  The Supreme Court in Houchins v.
Plainos, 130 Tex. 413, 110 S.W.2d 549 (1937), ruled that


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Honorable Ralph M. Hall, Page 3                       (M-865)



the Constitution provides the exclusive means by which the
issue of prohibition or legalization of alcoholic beverages
could be decided. That Court in the earlier case, State v.
Texas Brewing Company, 106 Tex, 121, 157 S.W. 1166 (1913)
at page 125 reached a similar conclusion when it stated:

     "All powers of government reside in the people,
     and the officials of the different departments
     exercise delegated authority; however, the
     Legislature can exercise all legislative power
     not prohibited by the Constitution.  But the
     section of the Constitution quoted provides
     a method (a referendum) by which the voters
     of a given territory may exercise the sovereign
     power of legislating upon this subject, which
     places the law adopted by them above legislative
     authority, as if it had been embraced in the
     Constitution, and we must so consider the local
     option law adopted by the voters of Clay County,
     for that, like the Constitution, is the exercise
     of primary sovereignty; therefore, what is pro-
     hibited by the local option law to be done in
     Clay County, as to sale of intoxicating liquors,
     cannot be authorized by the Legislature to be
     done there."   (at p. 125).

Therefore, as held in Medford v, State, 74 S.W. 768,
45 Tex.Crim, 80 (19031 d

     "Where local option has been legally put into
     operation within a specified territory, it
     must remain in force in that territory; that
     no power - Legislative or Judicial has the
     authority to change the boundaries of a local
     option territory so as to render inoperative
     the law as put into operation during its pend-
     ency in that territory.  The same authority
     that put it into operation must annul, . J ,"

     In line with this reasoning, numerous Texas cases have
held that not withstanding the fact the Commissioners' Court
has the clear legal right to define, redefine, change or
alter the boundaries of precincts within the county, that
it is beyond the power of the Commissioners' Court to so
change the boundaries of a justice precinct as to repeal
a law passed by a local option election in favor or against

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prohibition.  Bullington v. Lear, 230 S.W.Zd 290 (Tex.Civ.App.
1950, no writ); Goodie Goodie Sandwich, Inc. v. State, 138
S.W.2d 906 (Tex.Civ.App. 1940, error dism., judg. car.);
Houchins v. Plainos, supra; Jackson v. State, 118 S.W.2d 313
(Tex.Civ.App. 1938, no writ). In accord, Attorney General
Opinion Nos. C-658 (1966), C-681 (1966), and O-6880 (1945).

     It was further held in Attorney General Opinion No.
WW-1149 (1961) that when one justice precinct is wet and
a portion of a dry precinct is merged with it, and even
though that part of the dry precinct merged with the wet
precinct has no residents, the portion of the dry precinct
merged with wet precinct remains dry.

     Senate Bill 925 prescribes in certain counties another
means for legislation of alcoholic beverages in a consti-
tutionally established dry area, other than by local option,
as required by the Constitution.

     It is our opinion that Senate Bill 925 violates the
constitutional mandate for local option and therefore is
unconstitutional.   To hold otherwise would have the effect
of taking the local option power prescribed by the Constitution
away from the voter in the locality and lodge it with the
Commissioners   Court, who would be empowered to repeal
local options in portions of the justice precinct by
simply changing the boundaries of said precincts.~ Such    "  ""
an effect is not in harmony with the Constitution and the
laws of this State, as interpreted by the Supreme Court,
and other courts of our State, in the cases and Attorney
General Opinions cited above.

                       SUMMARY

     Senate Bill 925, 62nd Legislature, Regular Session,
     1971, a proposed amendment to Section 23, Article
     I of the Texas Liquor Control Act, codified as
     Article 666-23, Vernon's Penal Code, providing that,
     in certain counties, an annexed "dry area" to a "wet
     area" shall occupy the same "wet" status as the
     annexing area violates the constitutional mandate
     of local option and is therefore unconstitutional.




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         Honorable Ralph M. Hall, Page 5            (M-865)




                                                  MARTIN
                                               General of Texas
         Prepared by Guy C. Fisher
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE

         Kerns Taylor, Chairman
         W. E. Allen, Co-Chairman

         Jay Floyd
         W. 0. Shultz
         Ralph Rash
         James Quick

         MHADE F. GRIFFIN
         Staff Legal Assistant

         ALFRED WALKER
         Executive Assistant

         NOLA WHITE
         First Assistant




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