Untitled Texas Attorney General Opinion

PRmTE DkyIEr. ., ':. r--e-- ,. ., ', 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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