Texas Attorney General Opinion: O-654 Page: 4 of 5
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IL
Hon. J. B. Engledow, April 26, 1939, page 4, 0-654
above date, and same being not applicable to the status
of your county, would in effect render said election
voidable. Moyer vs. Kelley, 93 SW 2nd 502, writ dismissed;
Whitmire vs. State, 130 Tex. Cr. R. 372, 994 SW 2nd 742;
Flowers vs. Shearer, 107 SW 2nd 1049, Akers vs. Remington,
115 SW 2nd 714.
In the absence of an appeal from the order
granting the injunction, it further appears that the
District Court of Limestone County has, in effect, declar-
ed the election so held which was voidable, invalid. We
express no opinion as to the validity of said injunction,
as that question appears moot.
The case of Mitchell vs. McCharen, 119 SW 2nd
676, cited by you, appears to be authority upon the ques-
tion as to the right of the Commissionerst Court on its
own motion or after being duly petitioned, to order a
local option election wherein the proper issue will be
submitted to the voters where the same issue has not
within one year previously, been so voted upon.
At the election of March 10, 1934, the county
as a whole, according to your letter, legalized the sale
of 3.2% beer. That fixing the status of your county,
the county-wide local option election subsequently tobe
called upon such issue as authorized by the Act would be
a prohibitory one and as set forth above, paragraph (1),
Article 666-40 would be the proper ballot to be used.
This is in accord with prior rulings of this Department,
and which is also held in our opinion 0-286, to which you
refer in your letter and we assume a copy of this opinion
rendered to Hon. Bert Ford on March 7, 1939, is available
in your office.
It is, therefore, the opinion of this Department
that where an election is held submitting the wrong issue
to the voters for the purpose of holding a local option
election, and such ballots are not canvassed nor the re-
sults declared or published, smae does not constitute such
local option election as provided for under the provisions
of the Texas Liquor Control Act, Article 666-32, et seq.;
and being voidable, would not prohibit or render invalid
an order of the Commissioners' Court ordering another
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-654, text, April 26, 1939; (https://texashistory.unt.edu/ark:/67531/metapth257837/m1/4/?rotate=270: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.