February 22, 

### 1966

*Honorable W. C. Lindsey OpinionNO. 

### C-622 CriminalDistrict Attorney Jefferson County Re: Under the stated

. facts Beaumont, Texas whether the organization in question is acting illegallyunder the lsws of the State ofTexas and inparticular, inviolation of the "TexasOpen Dear Mr. Lindsey: sacmtuvP&rt; 

### $6;~3 s -, . . . In your request for an opinion of this office,you state the following facts and ask the following questions:

_. .~...-,.
-- "A fraternal~~,organization is furnishing, on its premises, mixed alcoholicbeverages and beer to itsmembers for a cash consideration here in Jefferson County. They are doing so under the 'LockerSystem' and/or 'PoolSystem' as same is described in Article 

### 666-15 (e) Section l(b) and (c),Penal Code of Texas. This organization does not have from the State of Texas, or sny of its agencies or subdivisions, a license or permit to deal in alcoholic beverages, nor does it have a private club registration permit fromthaTexas Liquor Control Board. We feel that it is a 'FraternalClub' as that term isused in Art. 

### 666-15 (e)Sec. **12,** Texas Penal Code. "Under the above facts, we requestyour opinion on the following: "1. Is the organization acting illegally under the laws of the State of Texas and in particular, in violation of the 'TexasOpen Saloon Law' (Art. 

### 666-3,Penal Gode) and

**-3021-**Hon. W. C. Lindsey, Page 2 

### (c-622)

Art.667-3, Penal'Code? "2. May such an organization obtain a Private Club Reaistrat1on~Penni.t under the laws of theState of Texas? **I ‘** 

**. ’** 

II II

. . . .

. The controlling question appears to be whether the fraternal organization is exempt from the application of the statute,being House Bill 892, Acts of the 57th Legislature, Regular Session, Ch. 

### 262,p. 559. (Codified in Vernon's **Penal** Code as Article 666-15(e) of the Texas Liquor Control Act). Section 1A (Art.666-15e 

### /I27;V. P. C.)of the subject act provides: --

: "Provided,however, that nothing in ~Section15(e) of Article 1 of the Texas Liquor ControlAct shall apply to Fraternal or Veterans Clubs." '~

. . ..~ In Attorney GeneralOpinion No. 

### ~~-111.8(1961) this office had occasion to consider this question and to hold that veterans and fraternal organizationswere 'exempt" from the application of such Act. To "exempt" from the law means to relieve, excuse, or set free from a charge, duty, burden or liability imposedupon the general class towhich the individual exemptedbelongs. Black's Law Dictionary, Third Ed., p. 720; 

### 34 C.J.S. 

### 1.377-1378, "Exempt", and cases cited. .:According to the latter text, when used as a,verb, '"Theterm is not a technical'onebut is a plain English word, meaning to clear, ,toexcept or excuse from some burdensome condition or obligation or the operation of some law~to which others are subject.
. . .'. Thus .the'term"exempt"must 'bedistinguished from the term "exclude", "Exclude" which, according to 

### 33 C.J.S. 111,

,,~is:Aword in commonusage, defined as meaning to sh;t out. . ./orprohibit; topreclude; also to except

. . ,.. It is apparent that the legislature expressed its intentionunder the act clearly and unambiguously to relieve fraternal orgenizations from the operation of the law in question and from any duty or liability to qualify under same. The languageused is too clear for construction.

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### w. C.Lindsey,Pa@;& 3 (c-622)

. As stated in 

### 53Tex.Jur.2d 

### 174,Statutes, Sec. 123,

"There is no room for constructionwhen the law is expressed inplain and unambiguous language and itsmeaning is clear and obvious. In such a case the law will be applied and enforced ashitreads, regardless of is policy or purpose, or the justice of its effect. In other words, a court is not authorized to indulge in conjecture as to the intention of the legislature, or to look to the Gonsequences of a particular construction,unless the meaning of the statute is doubtful." The intent of the ,Legislature being clearly ascertainable, itmust be followed and govern even though a literalmeaning of the words used in the statute is not followed. ,TheStatute shouldnever be given a construction that leads to uncertainty, injustice, or confusion. Woods v. State ex rel. Lee, 

### 133Tex. 110, 

### 126S.W.2d 4, 

### 7 (193-r
.

We here reaffirm and concur in correctness of Attorney -generalOpinion No. 

### ~~-1118 (1961)and the necessary implications of such opinion. Itnecessarily follows that the organizations inquired about are not excludedbut are exempted from theAct. Any other ruling would necessarily declare that the fraternal and veterans organizationswere excluded from the Act entirely and notentitled to operate a private club. Such a constructionwould render thatportion of the law unconstitutionalbecause itwould constitute illegal class legislation. This is sobecause legislationwhich accords unequal treatment to uersons similarlv situated is held to ,vioiatethe equalprotection clause 05 the federal consitution. Associated Indemnity Corp.v. Oil Well Drilling Co.,~ 258 SiW.2d 523 affi If an individualbe d 

### 153Tex 

### 153 264 zt%id a faciiitv & conveniencewhich 

### S.W.2db97 (1955). is furnished to othersunder substan'tially the same circumstances,he may properly complain of the invasion of his constitutional rights to equalprotection of the law. Beal v. Holcombe, 193 F.2d 384, cert. den. 

### 74 S.Ct. 

### 783,347m. 14 

### (1951)

. Even though the Texas Liquor ControlAct is an exercise of the police power, suchpower is subject to judicial review and may not be extended to deprive citizens of property without equalprotection of the law. Missouri-

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Hon. W. C. Lindsey, Page 4 (c-622)

Kansas-Texas R. Co. of Texas v. Rockwall CounFj Levee .I@. Dist. No.3 . arvey v. Morgan, 'mS:W.2d ~~?*($e;.',iv.A~~:1954, e& ref., n.r.e.). Since it is the duty of a court-r possible to,indulge a construction in favor of validity and constitutionality 

### (53Tex.Jur.2d 225, Statutes, Sec. 158), we must reject that construction.

. We are reinforced in our opinion by the further fact that if the statute is subject to construction, then the Legislature has twice met in regular session since Attorney General Opinion 

### ~~-1118 (1961)and has acquiesced in such ruling of "exemption" and not seen fit to amend, alter, or change the Ac;el;;lthisrespect as interpreted and followed by theAttorney

. Such departmental construction will ordinarilybe adopted and upheld under these circumstances. 

### 53Tex.Jur.2d 259, 

### 262,Statutes, Sec. 177, and cases cited. The doctrine of legislative acceptancewould thus be applicable and the Legislature must be deemed to have accepted such construction. Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d
. 515 1952 . Calvert v. Houston Lighting & Power Co., 36g.S.W.2d 502 Tex.&v.App., 1963 error ref., n.r.e.).

. .._. -.
-- Although apparently~the exempted organizationshave

generally been following the abave construction,we further note that during the past five-year period no case has reached the appellate courts in;which the correctness of this constructionhas been challenged., We hold, therefore, that the veteran end fraternal organizations are not required to obtain a permit, the law beinQ inapplicable to them4 and they are not inviolation of the 'Texas~OpenSaloon Law ,Art. 

### 666-3and Art. 

### 667-3, V.P.C.,merely by failure to obtain a permit or otherwisecomply 'with the provisions of Sec. 15 (e) of Art. 666.

This opinion shall not be construed to mean that the veterans and fraternal organizations are exempted from other provisions of the Texas Liquor ControlAct and which are not covered in Sec. 15 (e),Art. 

### 666,V.P.C.

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. Hon., W. C.:Lindsey, Page 5 (c-622)

SUMMARY

_. ~._.-. -_ Fraternal or Veterans Clubs are "exempt" from the provisions of Section 15 (e)of Art. 666, V.P.C., and are not in violation thereof or acting illegally in selling alcoholic

- beverages to itsmembers on its premises without a license or permit as provided for and required in such law for those not so exempt from its provisions or requirements.

Yours very truly, WAGGONER CARR Attorney General

By:

KST:cf APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Robert Flowers John Fainter John Pettit Ralph Rash~ APPROVRUFORTHRATTORNRY GRNRRAL BY: T. B. Wright 

# $i!iiis*
Assistant

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