Untitled Texas Attorney General Opinion

Opinion

THEATITORNEY GENERAL

OF TEXAS

December20, 1960

Mr. Alton R. Crlffln opinionNo. wu-976 CountyAttorney Lubbock,Texas Ra: The effectthat a precinctlocal option electionwill have upon a city which has heretoforevoted dry upon the same issue which is up for vote in the precinct,which lncludeblwithin its boundariesthe Dear Mr. Griffin: dry city, and relatedquestions.

Your requestreads in part as follows:

"On the 5th day of November,1960, the IncorporatedCity of Slaton,Texas, held a local option electionupon the issue for the sale of alcoholicbeveragesfor off-premsseconsumption. On December10, l&C, JusticePrecinct2 in the County of Lubbock will hold an electionfor the sale of alcoholicbeveragesfor off-premiseconsumption.The City of Slaton is complatalywithin the boundariesof JusticePrecinct2.

"I have read your OpinionWWgk5 concerningthe electionin GraysonCounty,Texas, and your opinionthat the county-wideelection would have no effect upon the City of Denisonwhich had previously voted wet. My questionsare as follows:

"(1) Will the City of Slaton remain dry regardlessof whether JusticePrecinct2 legalizesthe sale of alcoholicbeveragesor not?

"(2) Are the peoplewithin the city limits of Slaton entitled to vote in this precinctelectionsince only a month previousthey voted on the same issue in the City election?

“(3) If the majorityof the voters in the box locatedwithin the city limits of Slaton vote wet, will that result in the city being wet?

"My interpretationof the law end of your opinionas well as my discuesionwith you would be as follows: that the people of Slatonwould be entitledto vote in the precinctelectionand that

: ‘,... Mr. Alton R. Griffin,Page 2 (~-976)

the City of glaton,Texas, will remaindry regardlessof the outcomo~of the precinotelectionand regardlessof this vote in the City of Slaton ltaelf."

Your interpretation of the law and of AttorneyGeneral'sOpinionNo. WW-945 is correct.

In WW-945, it was statedthat the 1959 case of k&era v. Martinez,320 S.W.2d 862 (Tex.Civ.App., 1959)~writref. n.r,e.,per curiamopinion326 S.W. 26 171r was controllingth~.thtg,typecf~edt~atio~i:~d'Yie~,fo3~Wing;exC~acf;sjfr that case are pertinent:

*Appellantfurthercontendsthat the theory of local self-government requiresthat the will of the county should controlover the will of the precinctor city. We do not agree. The doctrineof local self-government requiresthat the will of the smallerunit shall controlover the will of the largerunit. The doctrineof local self-government will not supporta rule to the effectthat the countymust controlthe precinctor city." (Emphasisadded.)

"It is plain from the provisionsof the 1935 amendment and the statuteenactedthereunder,that the Legislaturein submittingthe constitutional~amendment and'enactingthe statute,and the people in adoptingthe 1935 amendment,inten- ded that counties,justice'sprecinctsand incorporated.IQitSes~ or towns shouldbe on an equal footing,and that by complying with the provisionsof the law either of them might hold an electionany time to either "legalize',or,'prohibit': the sale of alcoholicbeverages,in keepingwith the provisionsof Sec. 40, Art. 666, Vernon'sAnn. Penal Code. The only limitationis that an electionfor.thesame purposein the same area must not be held oftenerthan once a year, as is providedby Article g66-32, which reads in part as follows:

'No subsequentelectionupon the same issue shallbe held within one (1) year from the date of the last precedinglocal option electionin any county,justice'sprecinct,or incorporatedcity or towne"' (Emphasisadded,)

To answer your questionsspecifically,first,the City of Slatonwould remain dry regardlessof whetherJusticePrecinct2 legalizesthe sale of alco- holic beveragesor not. The City of Slaton is the smallergovernmental unit of the two, smallerin.size and population,and completelywithin the boundaries of Precinct2. So, carryingthe doctrineof local self-government to the smallest unit, the declaredresult is apparent. Mr. Alton R. Griffin,Page 3 (w-976)

Second,the people within the city limits of Slaton~areentitledto vote in this Precinct2 electioneven thoughthey voted on the same issue in the city electiononly s month prior to the precinctelection. In a precinct-wideelection, every eligiblevoter in the precinctis entitledto vote. The eligiblevoters of the city of Slatonwould not be prohibitedfrom participating becauseof their recent electionfor the reasonthat the areas coveredby the electionsare not the same.

Third, if the majorityof the voters in the box locatedwithin the city limits of Slatonvote wet, that would not result in the city becomingwet. The precinctelectionis not a city electionand would have no effecton the previous electionheld by the smallergovernmentalunit, the City of Slaton.

As AttorneyGeneral'sOpinionNo. WW-945 stated,to reach a different result in such situationswould be contraryto the will of the voters in the cities,towns and justice'sprecincts,contraryto the holdingin Myers v. Martinez,supra,>$ndcontraryto the wording of the 1935 Constitutional Amendment.

SUMMARY

1. The city of Slatonwould remain dry regardlessof whetherJustice Precinctplegalizes the sale of alcoholicbeveragesor not.

2. The peopie within the city limits of glatonare entitledto vote in this Precinct2 electioneven though they voted on the same issue in the city option electiona month earlier,

30 If the majorityof the voteas in the box locatedwithin the city limits of Slatonvote wet, that would not - result in the city becomingwet.

Very truly yours,

WILL WILSON AttorneyGsneralof Texas

iy GLEZNR. BROWN Assistant APPROVFD:

OPINIONCOMMI!lYEE W. V. Gepport,Chairman

Leon Pesek Bill Allen W. Ray Scru&y Ben Harrl&n

_’ RBV~FORTBBATTORNEY GENERAL BY; IaonsrdPassmore I