Case Information
*1 _.-. -.. GENERAL OWNEY
E TEXAS R-462 AURTIN 1~. TExas
PRICE DANIEL ATTORNEY GENERAL June 23, 1947
Hon. C. A.. Poundr opinion No. V-262 County Attorney
Chamber6 County Re: Local option ntatur of Anahuac, Texan Jurrtice Precincta, Num-
bers 1, 2, 5 and 6 In Dear Mr. Pounds: Chambers County.
You have requested an opinion concerning the local option status of Justice Precincts Rumbers 1, 2, 5 and 6 in Chambers County. Due to the fact that you have net forth the pertinent fact6 concerning each precinct in eeparate letters, and have requested a reparate opinion on ~the atatua of each precinct, we shall consider them In numerical order. Your letter relating to Ju6tice Precinct No. 1 18 aB follows:
“In the year 1898, a local option election wae held In Justice Precinct Ho. One of Chambers County,,Texas, which resulted in the sale of intoxicating liquors being prohibi- ted therein and in 1933 a local option election wan held In said Precinct No. One to determine vhether or hot the sale of 3.2 beer should be legalized which election reeulted in prohibiting the sale of such beer, and in 1936 a county-wide election was held in said Chambers County to determine wheth- er or not the rale of all alcoholic beveragea should be le- galized in said County, which election relrulted in favor of legalizing the Bale of mch beverages.
“Please be kind enough to advise me whether or not said Precinct No. One should be claased a8 a wet area or a dry area.”
We aamme throughout thin opinion that all election8 referred to have been held in accordance with the constitutional and statutory requirement8 in effect at the time of said elections and that they are valid in all respects.
The election of 1898 which resulted in prohibiting the male of intoxicating liquors in Jurtice Precinct No. 1 wae held under authority of Article XYI, Section 20 of the Texas Constitution as adopted In 1891. This provlalon wan aB follown:
“The Legislature shall at it.8 firat seanion enact a law whereby the qualified voters of any county, justice’s precinct, town, city (or such subdivision a county am may be designated
..- ,--_ Hon. C. A. Pounds, page 2 (v-262)
by the commissioners court of said county), may by a majority vote, determine from time to time whether the sale of Intoxicating liquora shall be prohibited within the prescribed limits."
Article XVI, Section 20, aa above set out, remained in effect from l&l until 1919 when the prohibition amendment was adopted. This provision, in part, stated:
"The manufacture, sale, barter and exchange in the State Texas, of spirituous, vinour or malt liquors or medicated bitters capable of producing intoxication, or any other intoxicant whatever except, for medicinal, me- chanical, scientific or sacrsmental purporen, are each and all hereby prohibited."
The prohibition amendment of 1919 remained in effect until August 26, 1933, when at en election the so-called "beer amendment" was adopted. Article XVI, Section 20, as adopted in 1933, provided:
"Sec. 20 (a). The manufacture, sale, barter or ex- change in the State of Texas of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxi- cation, or any other intoxicant whatever except vinoue or malt liquors of not more than three and two-tenths per cent (3.2$) alcoholic content by weight, (except for medicinal, mechsnical, scientific or sacramental purposes) are each and all hereby prohibited. The Legislature shall enact laws to enforce this Section, and may from time to time prescribe regulations and limitations relative to the manufacture, sale, barter, exchange or possession for sale of vinous or malt li uore of not more than three and two- tenths per cent (3. 23 ) alcoholic content by weight; pro- vided the Legislature ahall enact a law or laws whereby the qualified voters of any county, justice's precinct, town or city, may, by a majority vote of those voting, determine from time to time whether the sale for beverage purposes of vinous or malt liquors containing not more than three and two-tenths per cent (3.a) alcohol by weight shall be prohibited within the preecribed limits; and provided further that in all counties In the State of Texas and in all political subdivisions thereof, wherein the sale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas and in force at the time of the taking effect of Section 20, Article 16, of the Constituticn of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange in any such county or in any such political subdivision thereof, any spirituous, vfnous or malt liquors or medicated bitters, capable of producing intoxication or any other intoxicant whatsoever, unless and until a majority *3 Eon. C. A. Pounds, page 3 (v-262)
of the qualified voters in said county or political sub- divlaion thereof voting in an election held for such pur- pose shall determine it to be lawful to manufacture, sell, barter and exchange in said county or political subdivision thereof vinous or malt liquors containing not more than three and two-tenths per cent (3.2$) alcoholic content by weight, and the provision of this subsection shall be self- enacting." (Emphasis added.)
The effect of this amendment ie best expressed in this language appearing in the case of Houchins P. Plainos, 110 S. W. (2d) 549:
"The effect of thia provision was to make the area of any county, justice's precinct, or town, or city, which was dry at the time the entire state became dry under the amend- ment of 1919, still dry territoryi but with the privilege of becoming wet territory as to vinous and malt liquors of not more than three and &o-tenths per cent alcoholic content by 60 voting at an election held in and for the exact area that had originally voted dry." (Nmphaals addad.)
It appears, therefore, that upon the adoption of the constitu- tional amendment in 1933, Justice Precinct No. 1 was preserved as a "dry" area by virtue of the election of 1898, which resulted in the prohibition of intoxicating liquors. However, Article XVI, Section 20, as adopted in 1933 gave to a justice precinct the right to hold an election for the purpose of determIning whether or not vinous and malt liquors of not more than 3*2 per cent alcohol by weight should be legalized. Under this au- thorlt,v,, an election was held which resulted in Justice Precinct No. 1 mainta-i,ning its "dry" status.
This amendment of 1933 remained in effect until August 24, 1935, when at an election, Article XVI, Section 20, was again amended to read:
"(a) The open saloon shall be and is hereby prohibited. The Legislature shall have the power, and it shall be its duty to define the term 'open saloon' and enact laws against such.
"Subject to the foregoing, the Legislature shall have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquore, including the power to establish a State Monopoly on the sale of distilled liq- uors.
"('+j Tis,e Legislature shall enact a law or laws whereby tr,c qualified voters of any county justice's precinct or in- corporated town or city, may, by a majority vote of those votl,ng, determine from time to time whether the Sale of
. , .- Hon. C. A. Pounds, page 4 (v-262)
intoxicating liquors for beverage purposes shall be prohibited or legalized within the prescribed limits~ and such lava shall contain proviaiona for voting on the sale of intoxicating liq- uom of various types and various alcoholic content.
“(c) In all countiee, justice’s precinct6 or incorporated towns or cities wherein the eale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas snd in force at the tima of the taking effect of Section 20, Article XVI the Conetitution of Texas, it shall continue to be unlawful to lllanufacture, sell, barter or exchange in any such county, justice’s precinct or incorpo- rated town or city, any epirituoue, vinous or malt liquors or medicated bitters capable of producing intoxication or any oth- er intoxicants whatsoever, for beverage purposes unless and un- til a majority of the qualified voters in such county or poli- tical 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 subdivision8 thereof in which the qualified rotere have voted to legalize such sale under the provisions of Chapter 1.16, Act# of the Regular Session of the 43rd Legislature.”
This amendment, commonly referred to as the repeal amendment, is the conetitdional proviuion with reepect to local option which ia in effect at the present time. It is also the provision under which the 1936 county-wide election in Chambers County was held. We again refer to language in the case of Flouchins v. Plainos, supra, interpreting the amendment of 1935:
“By the terms of this amendment the entire State, as such, is again made wet as to all, Wcoxicating liquors; but with certain exceptions and limitations. In effect, this amendment contains provisions which make any county, jus- tice’s precinct, or city, or town dry which was dry at the time it became effective. In other words, this amendment preserves the status quo as to dry areas a8 they existed at the time it became effective. lt therefore preserved as dry any county, justice’s precinct, or city, or town which was dry when it went into effect. Of course,, any such area has the right to become wet by 80 voting at an election legally ordered and held for that purpose under present local option statutes. In this connection, how- ever, we again note that such election must be held & the same area that originally voted dry.” (Emphasis added. )
Hon. c. A. Pounds, page 5 (v-262)
In November, 1935, less than three months after the adoption of Article XVI, Section 20, an non in effect, the Legislature passed the Texas Liquor Control Act. Article I, Section 23 of this Act, codified a6 Article 666-23, Vernon's Penal Code, defines "dry", end "wet" areas as follows:
"Whenever the term 'dry area" is used in this Act it shall mean and refer to all counties, justice precincts, incorporated cities or towns wherein the aale of alcoholic beverages had been prohibited by valid local option elec- tions held under the laws of the State in force at the time of the taking effect of Section 20, Article XVI, Constitu- tion of Texas in the year 1919. It likewise shall mean and refer to any such areas where sale of such alcoholic bever- ages shall be prohibited under the terms of this Act.
"The term 'wet area' shall mean and refer to all other areas of the State . . . ."
Under the constitutional and statutory provisions above set out and under the Interpretation given these various provisions by the courte, it appears beyond question that after the election of 1933, Justice Precinct No. 1 remained a "dry" area. The next question for us to determine is the effect on Justice Precinct lo. 1 of the county-wide election held in 1936.
The appellate courts of Texas have uniformly construed the local option election provisions to protect the "dry', status of the smaller sub- divisions of the whole. The earliest authority we have found supporting this contention is the case of Aaron v. State, decided by the Supreme Court in 1895 and reported in @ S. W. 267. Judge Hurt, speaking for the court in this case, used this language:
"It appears from the record that before the Bale was made an election had been held under the act of 1893 for the entire county, which resulted in the defeat of prohi- bition. It la contended this defeat abrogated the law in Precinct 8. In other words, If local option is legally in force in a precinct, made so by election in that precinct, that a subsequent election, held for the entire county, resulting against prohibition, has the effect to repeal or abrogate local option in that said precinct. To this propo- sition we cannot agree. By reference to the various provi- sions of the local option statutes we are informed that the people of the entire county cannot express their views upon this subject so as to defeat or repeal local option in any sliodivision of the county. Nor can the people of a precinct by a vote defeat prohibition in any subdivision of that pre- cinct, town or city. The county may force prohibition by a *6 HOG. c. A. pounds, page 6 (v-262)
vote over precincts which are not in favor of it, and 80 may. precinct over cities, towns, or nubdivisiona thereof that max not be in favor of it, but cannot force, by vote, repeal of it, in any town, city, or subdivieion thereof. The pe~ople of the county, outaide of the territory to be affected, have no right to vote at all a8 to the law in that subdivieion. . s ." (&uphaais ours.)
The Aaron caee hae been cited frequently in recent caaea. The above language was quoted in the cane of Jackson v. State, decided by the Court of Criminal Appeals in 1938 and reported in 1.18 S. V. (2d) 313. Judge Graves, speaking for the Court, eaid:
"It has long been recognized by this court's decisions that when the voters of any justice precinct have, through the medium of an election properly called in and for such precinct, or political subdivision of any county, determined by a majority vote that the eale of intoxicating liquor6 ehall be prohibited in such precinct or other subdivieion, that it shall continue to be thue unlawful until the voters of such precinct or q ubdivision mhall determine otherwiee.
In other wordrr. intoxicating liauors. once having been voted out, can only be voted back-by a' majority vote 02 the identi- cal territory that had voted much liquor6 out. To this ef- fect ie our holding in the early case of Aaron v. State, 34 Tex. Cr. R. 103, 29 S. U. 267, in which Judge Hurt said . . . . " (Emphasis ours.)
To the same effect are the ca8es of Griffin v. Tucker, decided by the Supreme Court in 1909 and reported in 102 Tex. 420, 118 S. W. 635; Go0dl.e Goodie Sandwich, Inc., v. State, decided by the Dallas Court of Civil Appeals in 1940, and reported in, 138 S. U. (2d) 906; Coker, County Judge v. Kmeicik, decided by the Commiseion of Appeals in 1935 and reported in 87 S. W. (2d) 1076; Powell ve Smith, decided by the Fort Worth Court of Civil Appeals in 1936, and reported in 90 S. W. (2d) 942.
It is, therefore, the opinion of thin department that the county- wide local option election of 1936 resulting in chambers County legalizing all alcoholic beverages did not affect the "dry" status of Justice Pre- cinct X0. 1, and said precinct remained "dry'".
Your letter with respect to Justice Precinct No. 2 of Chambers County is as follows:
"In the year 1916 a local option election ~a8 he.1.d in Justice Precinct No. Two of Chambers County, Texas, which re- sulted in the sale of intoxicating liquors being prohibited therein; in 1933, a local option election was held in said Precinct Ho. Two to determine whether or not the sale of 3.2 *7 Hon. C. A. Pounds, page 7 (v-262)
beer should be legalized, Which election resulteti. in, legaliz- ing the sale of such beer, and in 1936 a county-w& election was held in said Chamber8 County to determine whether or not the sale of all alcoholic beverages should be legalized in said County, which election resulted in legalizing the sale of such beverages.
"Pleaee be kind enough to advise me whether or not aaid Precinct No. Two should be classed a8 a wet area or a dry area."
Subsection (c) of Section 20 of Article XVI expressly etatee that the sale of alcoholic beverages containing not more than 3.2 per cent alcohol by weight shall not be prohibited in political subdivisions which had ~voted to legalize euch eale. This language is quoted as fol- lows:
11 . . . . 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, countiee or political subdivieions thereof in which the qualified voters have voted to legalize such sale under the provieions of Chapter 11.6, Acts of the Regular Session of the 43rd Legislature."
In addition to Article 666-23, Vernon's Penal Code, already quoted, the Texas Liquor Control Act contained a further provision with regard to local option status. This provision ia Article II, Section 2 of the above Act, codifi,ed as Articl~e 667-2 of Vernon's Penal Code and is,, in. part, as follows:
1% . . .
"lr. s,hall continue to be unlawful to manufacture, sell, 'barter, or exchange in any county, ,justice precinct, or in- :cc,porated ,z:j,ty or town any beer ex-ept in counties, justice pI-eCl.nCt,B, or incorporated ci.t!,es or towns wherein the voters thereof had not adopted prohibit:ion 3y local option elections held ,ILnder the l~aws of the State of Texas a,n,d. in, force at the rime of taking effect of Section 20, Arttrl~e 1.6 of the Consti- tu+ion of Texas in, .1919; except that '.n counties, juet;ice pre- ! '3nct. 8) or in.~o:rporwt.ed cit.i.es CIT fown8 wherei,n a majorit~y of tro legdiw :.he sale of beer in accord- the v&em h,ii,ve voted ar;.ze wit.'r t~h~ 1.oca.l optiorl, prov,;sions of Chapter 1.16, Acts cf the Regu.:.ar Sessi,c:n of the Forty-t,hird Legislature, or in ac- cr,,rdance vi? h the 7,:) :a1 opt.:on prr,vi,si~+ns, sect ';.:,xs 32 t,o 40, I, :, .?l !58~i,W) C,l.f Arki.,3e I:, 'of ELolme Bill No. ‘7, General Iavs of T~.x~s, Se-on.:1 ~a,lle,d Sess I w of t&t-. Fort:?-Pourt:L: : ~?g,lElat 'r:re , i;r ar:,v ame:dments thereof, beer as hereIn def?.ned may be manu- fac~tured, distributed an3 sold as herein provi.ded. e . ell *8 Hon. c. A. Pounds, page 8 (v-262)
This provieion, aa does the constitutional amendment of 1935, recognizes the BtatuB of those Bubdivieions which had legalized 3.2 beer under the 1933 amendment the TeXaB Constitution.
We direct your attention to the case of Tilleraon v. State, decided by the Court of Criminal Appeals in 1942, and reported in 159 s. w. (2d) 502. In this caee, a county-wide local option election had legalized the sale of 3.2 per cent beer in the county. The court used thia language:
“The definition of a ‘dry area’ and of a ‘wet area’ Seem to be relative terma a8 Bet out in Subdivision 23 of Art. 666, Vernon’s Annotated Penal Code, and from the facts stated in the foregoing quotation from the court’s qualification of the bill it would appear to be the cor- rect conclusion that Dallas County is a 'dry area' &B to the Bale of whiskey and other alcoholic beverages con- taining more than 3.2 per cent alcohol by weight. At the Bame time, it is a ‘wet area’ a8 to beer and those liq- UOrB which do not contain more then 3.2 per cent of al- cohol by weight. ’
In the case of Whitmire v. State, 94 S. W. (2d) 742, the Court of Criminal Appeals, speaking through Judge Hawkins, said:
"We call. attention of proaecutora and trial judges to tae fart ,that: the description in the indictment or in- furmation of‘ the i.iq:i<or d.eitl,t with in some Icxalities ml.& 'be kept, ~i~rl mi.nd bec8xe.e .in some place8 in the state E~r.der .GW present, ;,a~ :A @VW lmation may be a 'dry ;;rr,i 1 : 2.e nm des-i.gn:~t?d> s.) fsr as the sale, etc., of and at the 6 pi P :~i;~.i,5: a i,r,i~,.oxicat;i,~7,g I,-? rpor j~s concerned, saue t;me '70 "wet. area" as it relates to sales, etc., of m%lt l.iquor, sl,t.hough such li '$ior may be intoxicating,'
From the facts preser&ed i,n your letter ar:d under the reaaon- i.ng above, it appears that Justice Precinct No. 2, under the amendment of 1933 was preserved a8 a “dry- area” 3~ vj,rtu,e of an el~ection held in 1916, and that at an el.ection held i,r: 1933, under authority of the 1933 amendment, that 3.2 per cent 'beer was :.egalized.
I:t. is, therefore, the op.fnion of this Department that JUstiCe Precinct Ro. 2 of Chambers County ie a “dry area” as to the sale of whiskey and other beverages contai~ni.ng more than 3.2 per cent alcohol alrobolic hy weight, and i.a a "wet area" as to beer and those beverages which do not c,:on?:aln, more than 3.2 per cent of iilcohol by weight.
Your letter setting forth the facts with respect to Justice Precinct No. 5 of Chambers County is as follows:
r.. I
Eon. C. A. Pounds, page 9 (v-262)
"In the year [1913] a local option election wa6 held in Justice Precinct No. Five of Chamber8 County, Texas, which resulted in the Bale of intoxicating liquors being prohibi- ted therein; in [1933] a local option election was held in aaid Precinct No. Five to determine whether or not the Bale of 3.2 beer should be legalized, which election resulted in legalizing the sale of such beer, and in 1936 a countywide election was held in eaid Chambers County to determine whether or not the aale all alcoholic beverages should be legalized in aaid County, which election reeulted In le- galizing the eale of much beveragea.
"Please be kind enough to advise me whether or not 8aid Precinct No. Five should be ClaBBed as a wet area or a dry area."
Under the same reasoning applied in the case of Justice Precinct No. 2, we are of the opinion that Justice Precinct No. 5 of Chambers County is a 'dry" area as to the aale of whiskey and other alcoholic beverages containing more tban 3.2 per cent alcohol by weight, and a "wet" area a8 to beer and those beverages which do not contain more than 3.2 per cent of alcohol by weight.
Your letter concerning Justice Precinct No. 6 of Chambers County is a8 follows:
"In the year 1916, a local option election was held in Justice Precinct No. Six of Chambers County, Texas, which re- sulted in the sale of intoxicating liquors being prohibited therein; in [1933] a local option election was held in said Precinct No. Six to determine whether or not the sale of 3.2 .beer should 'be legalized, which election resulted in legaliz- ing the sale of such beer, and in 1936 a countywide election was held in said Chambers County to determine whether or not the sale of all alcoholic beverages should be legalized in said County, which election resulted in legalizing the sale of such beverages.
"Please be kind enough to advise me whether or not said Precinct No. Six should be classed aa a wet area or a dry area. "
It is the opinion of this department under the authorities cited above that Justice Precinct No. 6 of Ch,anibers County, Texas, is a "dry" area a8 to the sale of whiskey and other alcohol~ic beverages containing more than 3.2 per cent of alcohol by we,igh,ht, and a "wet" area as to beer and those beverages which do not contain more than 3.2 per cent alcohol by weight.
Hon. C. A. Pounds, page 10 (v-262)
SUMMARY The county-wide election in Chambers County in 1936 which resulted in legalizing the sale of all alcoholic beverages did not affect the "dry" status of Justice Precinct No. 1 of said County.
Justice Precincts Noe. 2, 5 and 6 of Chambers County were "dry" areae as to the lrale of whiskey and other alcoholic beverages containing more than 3.2 per cent alcohol by weight and "wet" areaa as to beer and those beverages which do not contain more than 3.2 per cent alcohol by weight, and the county-wide election in Chambers County in 1936 did not affect the Btatus of Justice Precincts Nos. 2, 5 and 6.
Yours very truly, AWORNEY GENERALOFTEXAS By /s/ Clarence Y. Mills Clarence Y. Mills Assistant.
CYM:rt:lm
APPROVED:
/s/ Price Daniel
ATTORNEY GENERAL.