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Honorable Price Dnniel Opinion No.W-89

Governor of Texas State Capitol Re: Constitutionality of S.B. Austin, Texas No. 225 to amend theTexas Liquor Control Act, permitting theholder of amanu- ~8 facturer’s license to continue operating in an area which subsequently has voted to prohibit the sale ofbeer 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 theTexas Liquor Control Act ishereby amended by the addition of a new section, designated Section ? 2a, which shall read as follows: “‘Section 2a. Regardless of any other provision of theTexas 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 ofbeer has been prohibited by local option election In the area Inwhich said manufacturer is located; and any manufacturer’s License so previously held, or issued under this provision, shall authorize itsholder to do all things which amanufacturer is authorized to dounder any other provision of theTexas Liquor Control Act including but not limited tomanufacture, possession, storage, packaging, and transportation to areas wherein the sale ofbeer is legal.I” Article XVI, Section 20(a) of theTexas Constitution specifically grants authority to the Legislature to regulate themanufacture 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 prohibIted. Tge Legislature shall have the power, and it shall be its duty todefine the term 'opensaloon' and enact law8 against Such. "Subject to the foregoing, the Legislature shall have the power to regulate themanufacture, 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 anAct 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 inan area which has adopted the local option provisions of theTexas Liquor Control Act, in that itauthorizes themanufacturer to "doall thing8 which amanufacturer is authorized to dounder any other provision of the Texas Liquor Control Act including but not limited tomanufacture, possession, storage, packaging{,and transportation to area8 where the sale ofbeer is legal. The Texas Liquor Control Act in turn authorize8 theholder of amanufacturerls licence "tomanufacture orbrew beer and to distribute and sell same to others; and todispense beer for consumption on manufacturer'8 premises;

. . s Article 667-3, sec.a,

However, the Supreme Court in State vsTeXaS Brewing eo., l.06Tex. 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 amethod (areferendum) 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 ithad been embraced in the Constitution, and we must 80 consider the local option law adopted by thevoters of Clay County, for that, like theConstFtution, is the exercise of primary soverefgnty; therefore, what is prohibited by the local option law tobe done in Clay County, as to sale of Intoxicating liquors, cannot be authorized by the Legislature tobe done there,"- ,-

Honorable Price Daniel, 

### Page3, (W'W-89)

201 (1919)See also White v. State, 

### 85Tex. CP, R, 

### 42,210 S.W.

and cases therein cited. Therefore, the Legislature in granting certain powers to theholder8 ofmanufacturer8 Ilicenses could not grant Such holder8 the right to sell beer or other intoxizating liquor in a dry area. Neither dowe construe theword dispense tomean that themanufacturer is authorized to sell beer in a dry area. The manufacturer8 under Senate Bill No. 225 merely succeed to the powers originally given theholder8 ofmanufacturing 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 ofbeer by amanufacturer within a local option area wherein the sale of beer has been prohibited. It is our opinion that S.B. No. 225 isnot unconstitutional under Article XVI, Section 20 of the Constitution of the State ofTexas.

SUMMARY
G.B. 225,Acts 55th Legislature, 1957, is Constitutional, and amanufacturer within the purview of this bill isnot 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 ;

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