                                                                R-445



                                 RNEY      GENE
                             F      EXAS

PRICE   DANIEL
ATTORNEY GENERAL
                                 June 12, 1947

        Honorable Perry Lr Jones   Opfnion No, v-250
        County Attorney
        Travis 6%tnty               R8l Loeal option status of
        Austin,    Tsrae                GammonSc?$aol Dlatricrt
                                        ~0~ 43 w    00ntaima    lin
                                        JufstSal?is' Prsolmts     NQSp
                                        6 end 0 in Travla       Cowatrr
        Deer Mro Jonest
Honorable Perry L. Jones, Page 2


               "On March 25, 1939, in a local
          option election Justice Precinct No.
          5 voted WET, permitting the sale of
          all alcoholic beverages.
               "On October 24, 1946, in a local
          option election, Justice Precinct No.
          6 voted against sale of all alcoholic
          beverages.
               "On November 16, 1946, in a local
          option election, Justice Precinct No.
          5, voted WET.

          "You will note there has not been a local
     option election in the original Common Sohool
     District No. 43, St. Elao and Longview Consoli-
     d$efg;;hools since it was voted DRY on January
                In view or this fact and under the
     Suireme r!!ourt'e
                     holding in the case of HOUCHINS
     VS. PLAINOS, ET AL.,,110 S.W. (2d) 549, is the
     Common School District No. 43 dry until an elec-
     tion is held in the exact saae area that orig-
     inally voted DRY? Or, did that part of Common
     School District No. 43 situated in Justice
     Precinct No. 5 become 'wet area' when Justice
     Precinct No. 5 became 'wet area'?"
          We assume throughout this opinion that all e-
lections set forth in your letter were held in accord-
ance with all statutory and constitutional provisions
in efiect at the time of the elections, and that such
elections were valid in all respects,
          The authority under which the 1918 election in
Common School District No. 43 was held was Article XVI,
Section 20 of the Constitution of Texas as amended in
1891, and as quoted below:
          "The legislature shall at its first session
     enact e law whereby the qualified voters of any
     county, justice's precinct, town, city (or such
     subdivision of'a county as may be designated by
     the commissionerss court of said county) may by
     e majority vote determine from time to time
     whether the sale of intoxicating liquors shall
     be prahibited .withFn the prescribed Ifruits."
          Article XVI, Section 20 of the Texas Constitution
as adopted in 1891 and as quoted above remained unchanged un-
                                    .




Hmorable   Perry L, Jonesp Page 4
.
Honorable Perry L. Jones,    Page 6


     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 oontinue
     to be unlawful to manufacture, sell,         barter or
     exchange in any such county, justice’s         precinct’
     or incorporated     town or oity, any spirituous
     vinous or malt liauors or medicated bitters           can-
     able of producing -intoxication      or any other in-
     toxicants  whatsoever,    for beverage purposes, un-
     less and until a majority of the.quali.fied         voters
     in such county or .politi&al      subdivision    thereof
     votinu in an election      held for such ouroose shall
     determine such to be lawful;. provided that this
     subsection   shall not .prohibit the sale of alco-
     holic beverages~ containing     not more than 3.2 per
     cent alcohol by weight in cities,        counties or- poli-
     tioal subdivisions     thereof in which the qualified
     voters have voted. to leaallze      such sale under the
     provisions   of Chapter 1x6, A&s of the Regular
     Session of the 43rd Legislature.”         (Emphasis added).
           This constitutional    provision  is the one now in
effect  in this state,    and the one, under which the question
presented by you must. be decided.      The effect of this re-
peal amendment is to legalize     the sale of intoxicating
liquors anywhere in Texas except in those specific       areas
named in subsection    (c) which had voted to prohibit     the
sale of intoxicating    liquors prior to the bakiw effect
OS Section 20 of Article     XVI. In support of this conten-
tion we quote again from the Houchins case, supra:
            “By the terms of this amendment, the entire
     State, as such is again made wet as to all in-
     toxicating     liquors;   but with certain exceptions
     and limitations.        In effect,   this amendment con-
     tains provisions       which make any county,    justice’s
     precinct,    or city,    or town, dry whioh was dry at
     the time it became effective.           In other words,
     this amendment preserves the status quo as to dry
     areas as ther existed at the time .it became ef-
     fective.     It-therefore     preserved as dry any coun-
     ty, j ustice’s     oreoinct,   or city, or town, which
     was dry when it went into effect.*            (Emphasis
     added. )
            Under the maxim expressio    unius est exclusio al-
terius,   (the expression of one thing is exclusive     of ano-
ther) , it is ours opinion that, any subdivision   not a coun-
ty, justice’s   precinot,  or ~a11inoorporated  town or aity
at the time it voted “dry” was not preserved as a ndryn
area by this section of the Constitution.       We are aware
Honorable Perry L. Jones,        Page 7


that in the latter part 0r subseotion             (0) after the spe-
cific   enumeration of counties,        justice's     preancts,     and
incorporated     towns and cities     this language fs used:
"in such county or politioal         subdlvlsionw and woltles,
counties,    or political    subdivisions      thereof.'       However,
we think it clear that the words upolltloal               subdivision*
refer to those political        subdivisions      specifically     set
forth in the first      part of subeeotion        (o), namely ooun-
ties,   justice9    precincts    and incorporated        towns ati
cities.     The Supreme Court of Texas inthe.language               al-
ready quoted interpreting        the 1933 provision        construed
the words npolltloal       subdivision*     as lnoluding the ar8a
of any justice's      precinct,   or town, or.oitg.          Such a
contention is further supported by the dootrine of eju%-
dem generis,     to the effect    that when general words fol-
low specific     words in an enumeration, the general words
are construed to embrace only objeots slmiIar in nature
to those.objects      enumerated by the preceding specific
words.
             That the Legislature  interpreted   the oonatita-            .
 tional provision as preserving the dry status only in
 counties,, justioe's   pracinots and inoorporated   oities
.or towns which had VOt8d dry prior to 1919, is shown in
 two provisions    0r the Texas Liquor  Control Bat.
           Artlole 1, Section 23,of the Texas Liquor Con-
trol Act, codified  as Arti       666-23 Of V8rnOn'%. Penal
Code, .reads in part 'as follows:
              "Whenever th8 term *dry area' Is used in
       this Aot,.it      shall mean and refer to all ooun-
       ties,   jostlce'precincts,      inoOrpOrat8d cities
       or towns wherein'the       sale of alooholio   b8V8r-
       ages,'had been prohibited      by valid local option
       elections     held under the laws of the State in
       force at then time of the taking effect        of geo-
      'tion 20, Article       XVI, Constitution   of Texas in
       the year 1919."
             Article  2, Seotion     2 of the abOV8 Act, oodified
as Article    66~7-2 of Vernon's     Penal Code, 1% in'part as
r 0110ws:

             "It shall continue to be unlawful to manu-
      facture,   sell,   barter or eXChalIg8 in any county,
      justice   precinct,    or inoorporated    city or town
      any beer exoept in counties,        justiae precinots,
      or incorporated     cities  or towns wherein the
      voters thereof had not adopted prohibition         by
I      >.   .,.. ‘,
:>,.        :’ .Y



                      Honorable Perry L. Jones,       Page 8


                           local option elections     held under . the
                                                                    . . laws
                                                                          . . of -
                           the State of T8xa% and in,force     at tne time or
                           taking  effect  of Section 20, Article      16 of the
                           Constitution   of T8xasin'lQlQ;    . . ."
                                  Both the constitutional       provision    of 1935 and
                      the legislative    interpretation     of that provision     as con-
                      tained in the above quoted language of the Texas Liquor
                      Control Act contains no language which could possibly
                      be construed as preserving the Idry" status            of a common
                      school district..    Wa have carefully      considered the lan-
                      guage in the Houohins case to the effect           that when an
                      area voted dry it'remained        dry until it was voted w8t
                      at a subsequent election      held in and for the same iden-
                      tical area which,.had theretofore       voted ndry".      How8v8r,
                      in the Houchins case the subdivision          considered was an
                      area which had originally,voted        "d.ry9" as.811 incorporated
                      city and later dissolved       its corporate    existence   and
                      was aM8Xed t0 a "W8t".Oity.          W8 think the language Of
                      the Houohins case insofar a% It lays down a requirement
                      for an election    in the same identical       area which had o-
                      riginally   vote   ?dryw is restrioted      to the areas orig-
                      inally voting P"dry" as count        s, justice's    precinct% or
                      incorporated    towns
                                   It is, therefore,     the opinion 0s this depaX'tm8nt
                      that Article    XVI, Section 20 88, adopted in.1919 abolished
                      all local option area% in Texas, and that the repeal amend
                      ment of 1935, now in effeot,.preserved         only those areas
                      as "dry" which had voted ndryw prior to 1919 a% a county~,
                      justice’s    precinct or as an incorporated      town or city.
                      Since CommonSchool Distriot         No. 43 did not vote in 1918
                      as one of the subdivis1,on.s speoifically       mentioned, th8
                      area embraced within it% original        boundaries must depend
                      for its local option status on the ooMty, the justice's
                      preoinot or the incorporated        city or town in which it is
                      located.     Since you have stated in your request that Jus-
                      tice Precinct No.,,6 whioh Includes the East St. Blmo box
                      and has in its last election        voted against the sale of
                      all alcohloic      beverages we are of the opinion that East
                      St. Elmo is a "dry" area.        You have also stated that Jus-
                      tice Precinct No. 5 which includes the West St. Elmo box
                      has in its last election       voted to legalize    the sale of
                      intoxicating     liquors.   We are, therefore,     of the opinion
                      that West St. Elmo is a "wet" area.


                                  1.   Article.XVI,    Section   20, of the Texas Con-
Honorable Perry L. Jones, Page 9


     stitution as adopted in 1935 and now in effect
     did not preserve Coamon School District No. 43 as
     a "dry* area. This constitutional provision pre-
     served as "dry" only those areas which had voted
     ndryfrprior to 1919 as a county, justhess  pre-
     cinct, or as an incorporated town or city,
          2, East St. Elno is a *dryH area by vfr-
     tue of the fact that Justice Precinct No, 6,
     of which it is a part, is "dry".
          3. West St. Elmo is a Rwetn area by
     virtue of the fact that Justice Precinct No,
     5, of which it is a part, is "wet."
                              Yours very truly
                          ATTORNEYGENERAL   OFTEXAS




                          APPROVED

                           gL/       aGiLq
                          ATTORNEY GEI'IERAL
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