Artiele XVI, Section 206, Conetltuticm of the State of Texasr

"In all counties, justice'8 precincts or incorporated towns or cities wherein the sale of intoxicating liquors had been prohibited by local option elections held un&er the laws of the State of Texas and in foroe at the time of the taking effect of Section 20, Artiole XVX of the Consti- tdion of Texas, it shall continue to be unlawful to manu- facture, sell, barter or exchange in any such county, justloe'a precinct or incorporated town or city, any spirit- UWB) vinoua or malt liquors or medicated bitter8 capable produoing intoxication or any other lntoxicante whatsoever, fbr beverage purposes, unless and until a majority of the qualified voters in such county or political subdivision thereof voting in an election held for such purpose shell determine such to be lawful; provided that this subsection shall not prohibit the sale of alcoholio beverages contain- ing not more than 3.2 per cent alcohol by weight in cities, counties or political subdivlalona thereof in which the qw.llffed voters have voted to legalize suoh sale under the provisions of Chapter Acta of the Regular Session of the 43-a Legislature."

In the ca8e of Houchine v. Plednos, 110 S.W.2d 549, the Supreme Court of Texas held that where power is given by Constitution ana means by which, '7:: mamer ln which, ft is to be exerolaed is prescribed, such means ana wner is exIdti8ive.

~z Opinion NO. 0-2114, this aepartauent held, among other things, shoula a oosnty as a whole vote for prohibiting the sale of all alcoholic -xTeragee > '. %e ~zounty would be dry regarding all alooholic beverages, ena the varfo~s pr-e>ticts WOUM have no authority to call and hold any local option e 1~32 4 im a

L- the case of Walling v. King, 67 S.W.2d 1074, Judge German, apeaking for the Supreme Court of Texas, saidl

‘Prior to the adoption of section 20, article it haad hem the law of this state for many years that when a ccurrty, justice's precinct, or ot$er political subdivision of a county voted to prohibit the sale of intoxicating iiquors, it continued to be unlawful to sell such liquors within the prohibited territory until the voters of the identical territory which had adopted prohibition voted .to repeal it. In Ex Parte Pollard, 51Tex. Cr. R. 488,

Honorable Bowlen Bond, page 3 (O-5487)

103 S.U. 878, Juage Davidson, epeaking for the Court of Criminal Appeals, said: 'Wherever a local optlou law is once legally put into operation In a given territory, it must remain in force until it has been voted out by ,the voters of the territory where such law was originally vftalized. (

"Several cases are cited in support of this holding. "The constitutional amendment aet out above by express words adopted this rule of law. The language is that in any county or any political eubaivision thereof where the sale of intoxicating liquors had been prohibited prior to the adoption of section 20, article it should remain unlawful to sell same (including beer) in said county or political subdivision 'until a majority of the quallfled voters in sfda county or political subdivision thereof voting in an election held for such purpose shall deter- mine it to be lawful to manufacture, sell, barter and ex- change in said county or political aubdivleion thereof vinous or malt liquors containing not more than three and two-tenths per cent (3.2s) alcoholic coutent by weight'.

"The very couatitutional amendment by which appellant is accorded his right to a license expressly provided that if local option prevailed in the county where he sou&t to obtain his license it was necessary for the voters that county to authorize the sale of the 3.2 per oent~beer before he could obtain a license. This the county has never done, but on the contrary it had for the second time voted in favor of local option 80 far as beer x88 coucernea. It necessarily follows that as Childress County had prohibited the sale of intoxicating liquors within its boundaries prior to the adoption of section 20, article by virtue of sub- division (a) set out above, it was uulawful to sell beer within any part of saia county untilvotere of the whole county determined otherwise. Local option within the county as a whole could. not be repealed by piecemeal." Tlze law is well settled In this State that where local option within the ec.zty aa a whole has been adopted that the 8Bme cannot be repealed except by E comtywlde election. We *mume from the facts stated in your letter that Freestme County is ci dry county.

In view of the authorities above cited, it in the opinion of this department that Senate Bill 117 does not, an8 could not, authorize au election

-.. (O-5487) to be held in a justice precinct, Incorporated town or city loaated within the limits of a dry county, to determine whether or not tie sale of beer that does not contain alcohol in exoeae of 4$ by wei&t ehallbe legalized.

Yours very truly /a/Jeeee Owene BY Jesse Owena Aseistent JO:db

APPROVED AUG X, 1943

/s/Grover SelLx::

APPROVED 0PmIOm C-