February 22, 1966 

*Honorable W. C. Lindsey Opinion NO. C-622 

Criminal District Attorney 

Jefferson County . Re: Under the stated facts 

Beaumont, Texas whether the organization 

in question is acting 

illegally under the lsws 

of the State of Texas and 

in particular, in violation of the "Texas Open 

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 alcoholic beverages and 

beer to its members for a cash consideration 

here in Jefferson County. They are doing so 

under the 'Locker System' and/or 'Pool System' 

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 'Fraternal Club' 

as that term is used in Art. 666-15 (e) Sec. 12, 

Texas Penal Code. 

"Under the above facts, we request your 

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 'Texas Open 

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 

~Section 15(e) of Article 1 of the Texas 

Liquor Control Act 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 organizations were '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 imposed upon the general class to which 

the individual exempted belongs. 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, 

'"The term is not a technical'one but is a plain English 

word, meaning to clear, ,to except or excuse from some 

burdensome condition or obligation or the operation of 

some law~to which others are subject. . . .'. 

Thus .the'term "exempt" must 'be distinguished from 

the term "exclude", 

"Exclude" 

which, according to 33 C.J.S. 111, 

,,~is :A word in common usage, defined as meaning 

to sh;t out. . ./or prohibit; to preclude; also to except 

. . ,. . It is apparent that the legislature expressed its 

intention under 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 language used is too clear for construction. 

-3022- 
Eon. w. C. Lindsey, Pa@;& 3 (c-622) 

. 

As stated in 53 Tex.Jur.2d 174, Statutes, Sec. 123, 

"There is no room for construction when 

the law is expressed in plain and unambiguous 

language and its meaning is clear and obvious. 

In such a case the law will be applied and 

enforced as hit reads, 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, it must be followed and govern even though a 

literal meaning of the words used in the statute is not 

followed. ,The Statute should never be given a construction 

that leads to uncertainty, injustice, or confusion. Woods v. 

State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 7 (193-r . 

We here reaffirm and concur in correctness of Attorney 

-general Opinion No. ~~-1118 (1961) and the necessary implications of such opinion. Itnecessarily follows that the organizations inquired about are not excluded but are exempted from 

the Act. Any other ruling would necessarily declare that the 

fraternal and veterans organizations were excluded from the 

Act entirely and notentitled to operate a private club. 

Such a construction would render that portion of the law 

unconstitutional because it would constitute illegal class 

legislation. This is so because legislation which accords 

unequal treatment to uersons similarlv situated is held to 

,vioiate the equal protection clause 05 the federal consitution. Associated Indemnity Corp. v. Oil Well Drilling Co.,~ 

258 SiW.2d 523 affi 

If an individual be 

d 153 Tex 153 264 

zt%id a faciiitv & convenience which 

S.W.2d b97 (1955). 

is furnished to others under substan'tially the same circumstances, he may properly complain of the invasion of his 

constitutional rights to equal protection of the law. Beal 

v. Holcombe, 193 F.2d 384, cert. den. 74 S.Ct. 783, 347m. 

14 (1951) . Even though the Texas Liquor Control Act is an 

exercise of the police power, such power is subject to judicial review and may not be extended to deprive citizens of 

property without equal protection of the law. Missouri- 

-3023- 
E : , 

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 

(53 Tex.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;;lthis respect as interpreted and followed by the Attorney 

. Such departmental construction will ordinarily be 

adopted and upheld under these circumstances. 53 Tex.Jur.2d 

259, 262, Statutes, Sec. 177, and cases cited. The doctrine 

of legislative acceptance would 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 organizations have 

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 construction has been challenged., We hold, therefore, that the veteran 

end fraternal organizations are not required to obtain a permit, 

the law bein Q inapplicable to them4 and they are not in violation of the 'Texas ~Open Saloon Law , Art. 666-3 and Art. 667-3, 

V.P.C., merely by failure to obtain a permit or otherwise comply 

'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 Control Act and which are not 

covered in Sec. 15 (e), Art. 666, V.P.C. 

-3024- 
. 

. 

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 its members 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 

-3025-