   .        r




                           THE   ktTl.ORNEY                  GENERAL
                                      OF    TEXAS
                                  AUSTIN.   TEXAS            78711
WAGGONER           CARTR
.4Tr”YXEx       (IBSERAL


                                     April 12, 1966

       Honorable John Lawhon                                 Opinion NO. c-658
       County and District Attorney
       Denton County                                         Re:     When the commissioners
       Denton, Texas                                                 court has enlarged a wet
                                                                     justice precinct by add-
                                                                     ing additional territory
                                                                     to same which was in a
                                                                     dry precinct, whether the
                                                                     territory within the
                                                                     original wet precinct
                                                                     remains wet, and related
       Dear Mr. Lawhon:                                              questions.
              Your letter requesting 8.nopinion of this office reads
       as follows:
                         "Prior to 1935 all Denton County was
                      dry. In September of 1935, Justice Pre-
                      cinct Two 1n Denton County held a local
                      option electlon. The area voted to allow
                      the sale of beer. . . . Since the Justice
                      Precinct election of September, 1935,
                      there have been no other elections held
                      concerning local option for liquor In the
                      area In question. In 1948, the Commla-
                      sloners Court of Denton County, reduced
                      the number of Justice precincts from 8
                      to 5. As a result the territorial bound-
                      aries of old Justice Precinct Two were
                      enlarged in lg@ to Include old Justice
                      Precinct Two plus additional territory.
                      Recently, a Denton County citizen living
                      wlthln the boundaries of old Justice Pre-
                      cinct Two applied for an application to
                      obtain a beer license. Questions:
                         "1. Is the territory within old
                      Justice Precinct Two now a wet area?
                         "2. If yes, does the wet area ln-
                      elude only the territory boundaries of
                      old Justice Precinct Two?"



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Honorable John Lawhon, Page 2 (C-658)


       The Court in Bullington v. Lear, 230 S.W.2d 290, 292
(Tex.Clv.App. 1950, no history), announced the followlng rule:
                 It has been held that It Is beyond
       the power of the commissioners court to so
       change the boundary of a justice precinct as
       to repeal a law passed by a local option elec-
       tion In favor of or against prohibition.
       Houchlns v. Plalnos, 130 Tex. 413, 110 S.W.2d
       549; Jackson v. State, 135 Tex.Cr.R. 140, 118
       S.W.2d 313.
          "This election was a clear, valid declara-
       tion of the will of the voters as to which under
       the Constitution and statutes they had a right
       to authorltlvely express their will. Ry virtue
       of this election, Justice Precinct No. 2 of
       Crane County as it existed on August 3, 1949,
       the date the petition was filed with the County
       Clerk and on August 8, 1949, the date the Com-
       missioners Court ordered the election, became
       dry."
       The Court In the case of Powell v. Smith, 90 S.W.2d
942, 944 (Tex.Clv.App. 1936, no history), announced the fol-
lowing rule:
          1,
                'Where local option was adopted In
       any glcen locality, by the majority of the
       voters therein, It will remain In force un-
       til the qualified voters of such particular
       subdivision decide otherwise In an election
       held for that purpose. . . .I'
        The Texas Supreme Court in Houchlns v. Plalnos, 130 Tex.
413, 110 S.W.2d 549 (1937), announced the rule that an orlgl-
nal territory  that was dry remained dry until there was an
election In the same territory to vote on the same question.
The Court stated at page 555:
            I,    As to the case at bar, we hold
        that'whlie It Is true that the City of Hous-
        ton Heights has long since ceased to exist
        a8 a municipal corporation, still It yet
        exists for the purpose of holding a local
        option election to vote on the question of
        making It lawful to sell Intoxicating liquors
        within the area originally voted dry,"



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    Honorable John Lawhon, Page 3 (C-658)


           Based upon the above authorities, It la the opinion of
    this office that the answer to the two questions should be as
    follows:
             1.   The original territory within the old
                  Justice Precinct Two 1s still wet for
                  the limited purpose of the sale of beer
                  for on-premises consumption.
             2.   The wet area Includes only the terrl-
                  torlal boundaries of old Justice Pre-
                  cinct Two.
    Consistent with this are Attorney General's Oplnlons Nos. O-297,
    O-6880 and WW-1149.
           Since this office received the above opinion request,
    we received a telephone call from your office in which you ad-
    vised us that the following additional facts would be relative
    In answering the opinion request:
                "On August 24, 1935, the State Constl-
             tutlon legalized the sale of beer. , . .
                "On September 21, 1935, the electors In
             Justice Precinct No. 2 In a local option
             election had before them the following two
             proposltlons:
                      1111 . For the sale of beer
                             containing not more
                             than 3.2 percent (3.2%)
                             of alcohol by weight.
                      n'2. Against the sale of
                           beer containing not
                           more than 3.2 percent
                           b;ZLt.~f alcohol by

                "The people voted for the sale of 3.2
             percent beer. It was passed by the people
             on September 21, 1935.
                "Question: If the area Is wet, what
             percentage of alcohol may the beer con-
             tain by weight, 3.2 percent or 4 percent?"




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Honorable John Lawhon, Page 4 (c-658)


       In 1933, Congress modified the Volstead Act to permit the
sale of beer.
       On August 26, 1933, the voters of Texas adopted an amend-
ment to the State Constitution legalizing the sale of beer con-
taining not more than 3.2 percent alcohol by weight In cities,
counties or political subdivisions thereof In which the qualified
voters voted to legalize the sale of beer.
       In 1933, the Regular Session of the Forty-Third Le lsla-
ture enacted House Bill No. 122, Chapter 116, Secti.onl(b7 ,
which provides:
          "(b). Upon and after the effective date
       of this Act (as provided In subsections (c)
       and (d) of Section 28 of this Act) In all
       counties In the State of Texas and In all
       political subdivisions thereof wherein the
       sale of Intoxicating liquors had been pro-
       hibited by local option election held under
       the laws of the State of Texas and In force
       at the time of taking effect of Section 20,
       Article 16 of the Constitution of Texas, it
       shall continue to be unlawful to manufacture,
       sell, barter or exchange In any such county
       or any such political subdlvlslon of said
       county any vlnous or malt liquors containing
       In excess of one per cent (1s) alcoholic con-
       tent by volume, unless and until a majority
       of the qualified voters in said county or
       political subdivision thereof voting at an
       election held for such purpose shall deter-
       mine It to be lawful to manufacture, sell,
       barter or exchange In such county or In such
       political subdivision of said county any
       vlnous and malt liquors containing not more
       than three and two-tenths per centum (3.2s)
       alcoholic content by weight;"
       The election held on September 21, 1935, In Justice Pre-
cinct Two of Denton County, as described previously, was ap-
parently in accordance with House Bill No. 122, Acts of the
Forty-Third Legislature, 1933, and would legalize the sale of
beer containing not more than 3.2 percent alcohol by weight in
Justice Precinct Two.
       On December 5, 1933, the Twenty-First Amendment to the
Federal Constitution, which repealed the Eighteenth Amendment,
became effective.



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Honorable John Lawhon, Page 5 (c-658)


       On August 24, 1935, the voters of Texas adopted an amend-
ment of Article 16, Section 20 of the State Constitution re-
pealing State prohibition.
       House Bill No. 122, ,Acts of the Forty-Third Legislature,
1933, was repealed by House Bill No. 77, Acts of the Forty-
Fourth Legislature, 1935, Second Called Session, and the rela-
tive portions of such Act reads as follows:
           "Article II, Section 1.
          "Manufacture, sale and distribution of
       beer authorized; local option; 'beer' de-
       fined. (a) The manufacture, sale and dls-
       trlbution of beer containing one-half (l/2)
       of one per cent (1%) or more of alcohol b
       volume and no more than four per centum (J $)
       of alcohol by weight is hereby authorized
       wlthln the State of Texas.
          "Unless otherwise herein specifically
       provided by the terms of this Act, the
       manufacture, sale and distribution of beer,
       as hereinafter defined, shall be governed
       exclusively by the provisions of Article
       II of this Act, Chapter 116, Acts of the
       Regular Session, Forty-Third Legislature,
       and all amendments thereto, are hereby
       repealed.
          "(b) It shall continue to be unlawful
       to manufacture, sell, barter or exchange In
       any county, Justice's Precinct or lncor-
       porated city or town any malt liquor con-
       taining In excess of one-half (l/2) of one
       per cent (1%) alcohol by volume except In
       counties, Justice's Precincts or incorpora-
       ted cities or towns wherein the voters
       thereof had not adopted prohibition by local
       option elections held under the laws of the
       State of Texas and In force at the time of
       taking effect of Section 20, Article 16 of
       the Constitution of Texas In 1919; except
       that In counties, Justice's Precincts or
       Incorporated cities or towns wherein a
       figal-
       ma or
       lze the sale of beer In accordance with the
       local option provisions of Chapter lib,
       Acts of the Regular Session of the Forty-



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Honorable John Lawhon, Page 6 (c-658)




       held in-any county, Jkticefs Precinct or
       incorporated city or town within this State
       In accordance with the provisions of Sec-
       tion 32 to 40 Inclusive of Article I of
       this Act, for the purpose of determining
       from time to time whether the sale of beer
       shall be prohibited or legalized within
       the prescribed limits; and it shall be un-
       lawful to sell beer in any county, Justice's
       Precinct or Incorporated city or town where-
       in the same shall be prohibited by local
       option election, and lawful to sell beer
       under the provisions hereof In any county,
       Justice's Precinct, or Incorporated city
       or town wherein the sale of beer shall be
       legalized by local option election.
          "(c) The word 'beer' as hereinafter
       used in this Act and for the purpose of
       this Article, shall mean any malt beverage
       containing one-half (l/2) of one per cent
       (1%) or more of alcohol by volume and not
       more than four per centum (4%) of alcohol
       by weight." (Emphasis added)
       House Bill No. 77 was approved by the Governor on
November 15, 1935, and became effective upon the same date.
       Therefore, It Is the opinion of this office that the
above quoted language from House Bill No. 77, Acts of the
Forty-Fourth Legislature, 1935, Second Called Session, auth-
orized the sale of any malt beverage containing one-half (l/2)
of one per cent (1%) or more of alcohol by volume and not more
than four per centum (4%) of alcohol by weight In any area in
which the sale of any malt beverage containing not more than
3.2 per cent (3.2%) of alcohol by weight was then authorized.
Assuming the validity of the election held In Justice Precinct
2 in Denton County on September 21, 1935, beer contalnlng not
more than four per cent (4s) of alcohol by weight may now be
sold in such precinct.
                        SUMMARY
          When the Commissioners Court enlarged
       Justice Precinct Two In 1948, the same
       having in 1935 voted to legalize the sale



                               -3184-
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    Honorable John Lawhon, Page 7 (c-658)


             of beer, by adding additional territory
             which was previously In a dry Justice
             Precinct, only the orlglnal territorial
             boundaries of Justice Precinct Two re-
             mained wet for the limited purpose of
             the sale of beer not in excess of 4.0
             per cent by weight of alcohol by virtue
             of the provisions of House Bill No. 77,
             Forty-Fourth Legislature, Second Called
             Session (1935).
                                            Very truly yours,
                                            WAGGONER CARR
                                            Attorney General of Texas




                                            Assistant Attorney General
    DHC/dt
    APPROVED
    OPINION COMMITTEE:
    W. V. Geppert, Chairman
    Gilbert J. Pena
    Mary K. Wall
    Philllp Crawford
    W. 0. Shultz
    APPROVED FOR THE,,ATTORNEYGENERAL
    By T. B. Wright




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