PRmTE DkyIEr.                                                    ., ':.
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                                    August, 9,, 1948


       Honorable Sam Dollahite                  ~, Opinion No..V-657              ~.:   “.’
       Coxinty Attorney’           i’ ‘~            .,.   ~1‘.
       Falls County    ” ‘:    ‘..                Re:      Local’option  status of area
       Marlin, Texas        ,.                             separated from a ‘wet”
                                                           precinct and attached to a
       Dear Sir:                           ‘.             .*dry” precinct by a Com-
                                                          mis~sioners’ Court order
                       ‘~.’                       ..      .changing the precinct
                                                          boundaries.    ‘.’

                     .+our letter   requesting         an opinidn reads,   in part.     as
       follows:~
                                                                                                  .,
                     “Justice Precinct  5 of Falls County-Texas                         :
              has always been ‘dry”-Justice       Precintit 4 has                             :
             ‘always been “wet”.     Thedivision   line between
              these two Precincts   used to be the MarlinGhilton
           ~’ road. Several years ago by order of then Co-is-.
           ‘. sioners Court the boundary line of Justice Pre-
              ,cindt 5 was moved from the Marlin-Chilton      road
             ’to a line running about 300 yards South of said
                                                                                  _,
             ,‘road.

                     “Up to the time of this order the territory
              taken off of Precinct 4 and made a part of Pre-
              cinct 5 in said order, had been in the “wet” area;              ”

                ‘: ‘~ “The question involved is whether the order
              bf the court so changing the boundary,prohibits     the
              saIe ‘of beer in’that portion of .Precinct 4 which.was
              made.a part of Precinct 5 by said order.”        ..
                                           . . ,,
                  1 The question for .our decision is the effect the annex-
       ation of part of a “wet” ju~stice precinct to a “dry” justice pre-
       cinct has upon the local option status of the annexed portion.         Both
                  .
       the Constitution   and Statutes of Texas contain provisions       setting
       forth the method for adopting or rejecting     prohibition.    Subsection
       (b) of Article   XVI, Section 20, of the Texas Constitution     as’amend-
       ed in 1935 provides:
                .
                      “The Legislature   shall enact a law or laws
              whereby .the qualified voters of any county, jus-
              tice’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
284   Honorable   Sam Dollahite,   Page   2 (V-657)



            for beverage     purposes shall be prohibited or legal-
            ized within the prescribed     limits; and such laws
            ZliXl contain provisions    for voting on the sale of
            intoxicating   liquors of various types and various
            alcoholic   content.”   (Emphasis    ours)

                    Pursuant to the above constitutional   mandate, the
      Legislature    in 1935 passed the Texas Liquor Control Act regu-
      lating the sale of intoxicating beverages    and providing among other
      things for the holding of local option elections.    These provisions
      pertaining to elections    are codified as Articles 666-32,  et seq.,
      Vernon’s    Penal Code.

                    Numerous   cases have been decided by the Texas
      courts in which a part of a “dry” precinct was annexed to- a
       “wet” precinct, and the courts have uniformly held that the “dry”
      portion retained its local option status regardless   of the annexa-
      tion. See the cases of Medford v. State, 74 S.W. 768; Woods v.
      State, 75 S.W. 37; Oxley v. Allen, 107 S.W. 9455 Goodie Goodie
      Sandwich, Inc. v. State, 138 S.W. (2d) 906. It is obvious that the
      same rule would apply to the reverse     of the above proposition,
      i.e., a portion of a *wet’ justice precinct annexed to a “dry”
      justice precinct.   The answer to this question is to be found in
      the language used by the Supreme Court of Texas in the case of
      Houchins v. Plainos,   130.Tex. 4l3. 110 S.W. (2d) 549. In that
      case a “dry” area which had formerly      been an independent mu-
      nicipality (Houston Heights) was annexed to a “wet” city (Hous-
      ton). The question for then court’s determination    was whether or
      not that “dry” area which was annexed to the “wet” city had be-
      come “wet” solely by reason of the annexation.      The court in its
      .opinion stated:

                    “When the people of Houston Heights voted to
            become a part of the wet city of Houston, they did
            not vote on local option at all. This must be true,
            because,    under the law in effect, when Houston Heights
            voted dry, and also under the law in effect when Hous:
            ton Heights voted annexation with the city of Houston,
            a territory   once voted dry could only be voted~ wet by
            strict compliance    with the then existing local option
            laws.    Certainly, such local option laws did not per-
            mit local option once voted into effect to be voted off
            by merely voting on a collateral       matter.  A reading
            oi such statutes clearly negatives such a conclusion.
            fn this regard t it is settled as the law of this state
            that where a power is expressly        given by the Consti-
            tution, and the means by which, or the manner in
            which it 1s to be exercised.     IS prescribed,   such means
            or manner is exclusive      of all others.   Parks V. West,
            102 Tex. 11, 111 S. W. 72b. At the time the City of Hous-
Honorable    Sam Dollahite,    page   3 (V-657)     ” ‘,:i       in :,I~: ,: ‘~.L<ss?~~




       ton IIeights voted dry, and ,at the Itime it was an;   :
       ncxed to the wet city of Houston,z’the local ‘option.’
       laws of this state governed; and gbverned exclu-- ;’             _
       sively the matter of voting upon such question. *
       (Emphasis    dtirs)

               ‘It is our opinion that&      so’far as the local option
status of an area is concerned, Article           XVI Section 20 .of the
Cons@.rtion      of Texas and Arti&es.‘666-32,        et seq., Vernon’s
Penal--Code,     provide the exclusive.method        for prohibiting or
legalizing   intoxicating   beverages.     The mere annexation of a
portion of a ‘wet”~jdstic*e     precinct to a “dry” justice precinct
does not affect such’ldtial option status of the annexed portion.,
To hold otherwise would allow the Commissioners’                Court alone
to change the local option status, because Article            V Section 18
of the Texas Constitution       provides:for     the division by the Com-
missioners’      Court of the countyinto      pre‘cincts.    The case of
Goodie ~Goodie Sandwich, Inc.. v. State,~~l38 S.W. (2d) 906, held
that such constitutional     provision empowered          the Commission-
ers’ Court to alttr boundaries        of precincts     within counties.   We
quote the following language from that case:

               “It cannot be gainsaid that the Commis-
       sioners’ Court had the power and authority to
       define, re-define,   change,. or alter the boundaries
       of precincts   within the county, and to ascertain
       the facts necessary     to the exercise   of such pow-
       ers;-but it does not lie within the power of the
       Court to detach “dry” territory from a “dry”
       predinct and attach it to a “wet” precinct,       there-
       by making the detached territory        “wet”, and al-
       lowing the sale, barter and exchange-of        prohibited
       liquors within the detached territory,       perforce   of
       the change.”          ‘~~

             Therefore,  the action of the Commissioners’    Court
in attaching a portion of a “wet” prtcinct to a .“dry” precinct
does not serve to prohibit the sale oft intoxicating beverages  in
the attached territory  and the. *wet” area remains :-wet.

                            SUMMARY                      ~ ,~

              The order of the Commissioners’     Court of
       Falls County attaching a portion of “wet” Justice
       Precinct No. 4 to “dry” Justice Precinct No. 5
       does not s’erve to prohibit the sale of intoxicating
286   Honorable   Sam Dollahite,    Page 4 (V-657)



            beverages   in the attached portion, and this at-
            tached portion remains     “wet.” Houchins v.
            Plainos,  130 Tex. 413, 110 S.W. (2d) 549.

                                           Yours     very truly

                                   ATTORNEYGENERALOFTEXAS




      CYM/b/JCP



                             ; yP.&~-

                                   ATTORNEYGENERAL




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