The Honorable Royce C.       Johnston              Opinion No.   H- 718
County Attorney
Kenedy County                                      Re: Local option status of a
P. 0, Box 1226                                     county which has never con-
Kingstille, Texas 78363                            ducted a local option election.

Dear Mr.    Johnston:

    You have requested our opinion concerning the wet-dry           status   of a
county which has never held a local option election.

     Article 16. section 20 of the Texas Constitution empowers          the Legislature
to provide for elections   whereby the voters of various political subdivisions
m=Y “determine     . . . whether the sale of intoxicating liquors for beverage
purposes shall be prohibited or legalized.      . , . ” Article 666-23,       Penal
Axdiary     Laws provides that all areas which are not “dry” pursuant to a
local option election shall be “wet!‘.    Thus neither the Constitution nor the
statutory law would prohibit the sale of intoxicating liquor unless an area
is “dry” pursuant to a local option election.      It is well established    that “no
act or omission   is a crime unless made so by the written law of the state.”
16 Tex. Jur. 2d, Criminal    Laws 5 1, and authorities      cited therein.   Accordingly,
in our opinion the sale of intoxicating    beverages     is illegal only in an area
which is “dry”pursuant     to a local option election.      Where there has been no
such election the sale of intoxicating   beverages     is not illegal and the area
involved is therefore “wet”.

    We are supported in our view by dicta from two Texas cases.              In Sanders
v. State, 157 S. W. 2d 910 (Tex. Grim. App. 1941), the court stated:

        . . . under the terms of Art, 666-23,   Vernon’s
        Annotated Penal Code, all area of the state is
        ‘wet, ’ except that which has been determined to
        be ‘dry. ’ Unless the proof shows that the area
        is ‘dry, ’ it is by law ‘wet. ’




                                    p.   3079
The Honorable          Royce   C. Johnston,        page 2




In Stell   v. State,    496 S. W. 2d 623 (Tex. Grim.            App.   19731,   the court   stated:

           Under the State Constitution.  . . (Article XVI 5 20,
           as amended 1933, 1935). all of the State is ‘wet’
           except those parts which have been declared ‘dry’
           by local option elections.

                               SUMMARY

                Where a political       subdivision has never held a
           local option election,       the area it encompasses   is
           “wet”.

                                                     Very   truly yours,




                                          /        / Attorney   General    of Texas

APPROVED:                                 u




DAVID      M.   KENDALL,        First   Assistant




C. ROBERT HEATH,               Chairman
Opinion Committee




                                              p.   3080
