. : 

Honorable Price Dnniel Opinion No. W-89 

Governor of Texas 

State Capitol Re: Constitutionality of S.B. 

Aus tin, Texas No. 225 to amend the Texas 

Liquor Control Act, permitting the holder of a manu- ~8 facturer’s license to continue operating in an area 

which subsequently has 

voted to prohibit the sale 

of beer under local option 

Dear Governor Daniel: election provisions. 

You have submitted for our consideration the constitutionality of Senate Bill No. 225, Acts of the 55th Legislature, 1957, the pertinent portion of which reads as follows: 

“Section 1. Article II of the Texas 

Liquor Control Act is hereby amended by the 

addition of a new section, designated Section ? 

2a, which shall read as follows: 

“‘Section 2a. Regardless of any other 

provision of the Texas Liquor Control Act, no 

person who has theretofore been Issued a 

Manufacturer’8 License shall subsequently be 

denied a Manufacturer’s License or any renewal 

of a Manufacturer’8 License for the same location on the grounds that the sale of beer has 

been prohibited by local option election In the 

area In which said manufacturer is located; and 

any manufacturer’s License so previously held, 

or issued under this provision, shall authorize 

its holder to do all things which a manufacturer 

is authorized to do under any other provision 

of the Texas Liquor Control Act including but not 

limited to manufacture, possession, storage, 

packaging, and transportation to areas wherein 

the sale of beer is legal. I” 

Article XVI, Section 20(a) of the Texas Constitution specifically grants authority to the Legislature to regulate 

the manufacture of intoxicating liquors, in the following language: 
Honorable Price Daniel, Page 2, (Wb!-89) 

"Sec. 20 a) The o en saloon Shall be and is 

hereby prohib I ted. Tge Legislature shall have 

the power, and it shall be its duty to define the 

term 'open saloon' and enact law8 against Such. 

"Subject to the foregoing, the Legislature 

shall have the power to regulate the manufacture, 

sale, possession and transportation of intoxicating liquors, including the power to establish 

a State Monopoly on the sal? of distilled liquors." 

Senate Bill No. 225 is an Act which regulates the 

manufacture of intoxicating liquor by allowing such manufacture 

within certain areas. As such, it is clearly within the authority granted by the above quoted provision8 of the Constitution. 

Senate Bill No. 225, at first glance, would seem to 

authorize the sale of intoxicating liquor in an area which has 

adopted the local option provisions of the Texas Liquor Control 

Act, in that it authorizes the manufacturer to "do all thing8 

which a manufacturer is authorized to do under any other provision of the Texas Liquor Control Act including but not limited 

to manufacture, possession, storage, packaging{, and transportation to area8 where the sale of beer is legal. The Texas 

Liquor Control Act in turn authorize8 the holder of a manufacturerls licence "to manufacture or brew beer and to distribute and 

sell same to others; and to dispense beer for consumption on 

manufacturer'8 premises; . . s Article 667-3, sec.a, 

However, the Supreme Court in State vs TeXaS Brewing 

eo., l.06 Tex. 121, 157 3.W. 1166 (1913), held as follows: 

"All power8 of government reside in the people, 

and the officials of the different departments exercise delegated authority; However, the Legislature 

san exercise all legislative power not prohfbited by 

the Constitution. But the section of the Constitution 

quoted provide8 a method (a referendum) by which the 

voters of a given territory may exercise the sovereign 

power of legislating upon this Subject, which place8 

the law adopted by them above legislative authority, 

as if it had been embraced in the Constitution, and 

we must 80 consider the local option law adopted by 

the voters of Clay County, for that, like the ConstFtution, is the exercise of primary soverefgnty; therefore, what is prohibited by the local option law to be 

done in Clay County, as to sale of Intoxicating liquors, 

cannot be authorized by the Legislature to be done there," 
- ,- 

Honorable Price Daniel, Page 3, (W'W-89) 

201 (1919) 

See also White v. State, 85 Tex. CP, R, 42, 210 S.W. 

and cases therein cited. 

Therefore, the Legislature in granting certain powers 

to the holder8 of manufacturer8 I licenses could not grant Such 

holder8 the right to sell beer or other intoxizating liquor in 

a dry area. Neither do we construe the word dispense to mean 

that the manufacturer is authorized to sell beer in a dry area. 

The manufacturer8 under Senate Bill No. 225 merely succeed to 

the powers originally given the holder8 of manufacturing licenses 

under Article 667-3, sec. a, which does not include the sale of 

beer in a dry area. Therefore, we construe S.B. No. 225, Act8 

55th Legislature, 1957, as not authorizing the sale of beer by 

a manufacturer within a local option area wherein the sale of 

beer has been prohibited. It is our opinion that S.B. No. 225 

is not unconstitutional under Article XVI, Section 20 of the 

Constitution of the State of Texas. 

SUMMARY 

G.B. 225, Acts 55th Legislature, 1957, is 

Constitutional, and a manufacturer within 

the purview of this bill is not authorized 

to sell beer in a dry territory. 

Your8 very truly, 

WILL WILSON 

Attorney General 

JRHM:jl:rh 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler 

Chairman 

Edwin P. Horner 

John Reeve8 

Joe G. Rollins 

F. C. (Jack) Goodman 

; 

w 

0 ) Jr. 

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