Untitled Texas Attorney General Opinion ( 1973 )

F EXAS
The Honorable Jim Sharon Bearden Opinion No. H- 34
County Attorney, Orange County
Orange County Courthouse Re: Could a ballot for such
Orange, Texas 77630 election be legally worded
for the legal sale of beer
and wine for on-premise and
Dear Mr. Bearden: off-premise together?
In your request for our opinion, you state that, prior to re-districting,
Precinct 3 was a wet precinct for on and off-premise sale of beer and wine.
In 1970, re-districting resulted in enlarging Precinct 3 by incorporating
into it a formerly dry area.
An election has been requested for both on-premises and off-premises
consumption of beer and wine in the entire precinct. You have asked:
“Could a ballot for such election be legally worded
for the legal sale of beer and wine on-premise and off-
premise together? ”
We answer your question “Yes”.
While it is possible, as you suggest, that two elections could be held
at the same time on separate petitions and on separate issues, as was
approved in Smith Y. Breedlove, 399 S.W.2d 404 (Tex. Civ. App. , Eastland,
1966, no writ), nevertheless, it is our opinion that the safer course to
follow would be to track the language of Article 666-40(b)(4), Vernon’s
Texas Penal Code, applicable to previously dry areas, and submit a ballot
with the issue stated simply as:
“For the legal sale of beer and wine.
or
Against the legal sale of beer and wine. ”
p. 140
The Honorable Jim Sharon Bearden, page 2 (H-34)
This would accomplish both on and off-premises legalization if
the voters voted “For”.
~.~’
Your 1,etter expresses concern as to the effect on the portions of
the precinct where on-premises consumption of beer and wine now is
permissible if the voters reject the proposition for sale of beer and wine.
If they voted against the sale, it is our opinion that would render the entire
precinct dry.
SUMMARY
In a precinct in which the sale of beer and wine
was previously authorized and additional dry territory
is added by re-districting, the preferable manner in
which to submit the question of the on and off-premise
consumption of beer and wine is to ask a single question
in accordance with Article 666-40(b)(4) rather than to
hold separate elections at the same time for on-premise
and off-premise consumption.
Very truly yours,
(-,/ Att:orney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 141