R-804

OFPICE OF 

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# THEATTORNEY 

# GENERAL

AVSTIN. TEXAS

PRICE DANIEL .4TTORNEY

GENERAL October 7, 1947

Hon. GeneMaddin District Attorney McLennanCounty Waco, Texas Opinion No. V-400
Re: Maybeer, as defined by Art. 667-1, V.P.C., be legally sold in Justice Precinct No. 5of McLenDear Mr. Ma&din: nanCounty, Texas?

Your.letter requesting anopinion of this Department reads, in part, as follows:

"In the year 1909, Justic&'.Precinct No. 5of McLennanCounty, Texas, by local option voted said precinct dry as to both liquor ana beer. Nolocal option election has been held in said precinct since said time except that in the year 1933 a local option election was held under the provision'of Chapter 116,Acts of the Regular Session of the Forty-third Legislature at which election sale andaistribntion 0; vinous andmalt beverages containing onehalf of one per.cent or more of alcohol by volume andnot more than three' and twotenths per centum of alcohol byweight was adopted under the 1933 amendmentto Section 20, Article 16of the Constitution of Texas. "By county wide loc.al option elections under the 1935 statutes, McLennanCounty, Texas, generally is wet as to beer anddry as to all other forms of intoxicating liquor.

cle 66ym : Canbeer as defined by Artiof t e Penal Code of Texas be legally s0ia in Justice Precinct No. 5of McLennan County, Texas?"
Weshall assumefor purposes of this opinion that.the 1933 local option election held in Justice wecinctJ0. 5was valid in all respects! and that no countywide election resulting in the prohibltion of all.alboholic beverages has been held in YIcLennanCounty since 1933.

### 558 Hon. GeneMaaain- Page 2 (V-400)

Thelocal option election held in Justice Precinct No. 5was held under the authority of Article XVI, Section 20of the Constitution of Texas, as amendea in 1933,and in accordance with Chapter 116, Acts of the Regular Session, Forty-third Legislature. Article XVI, Section 20as adopted August 26, 1933, was the so-called

“beer amendment”

. This amendmentis quoted in full as r0lhvs:

“The manufacture, sale, barter or exchange in the State of Texas of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication or any other intoxicant whatever except vinous or malt liquors 0r not more thti three andtwo-tenths per cent (3.2$) alcoholic content.by weight, (except for medicinal, mechanical, scientific, or sacremental purposes) are each andall hereby prohibited. TheLegislature shall enact laws to enforce this Section, andmayfrom time to time prescribe regulations andlimitations relotive to the manufacture, sale, barter, exchange;or possession for sale or vinous or malt liquors of not more than three andtwo-tenths per cent (3.2%) alcoholic content by weight; provided the Legislature shall enact a law or laws whereby the qualified voters of~any county, justice’s precinct, town or city may, by amajority vote of those voting, determine from time to time whether the sale for beverage purposes of vinous or malt liquors containing not more than three and two-tenths per cent (3.27%)alcohol byweight shall be prohibited within the prescribed limits; andprovided further that in all counties in the State of Texas and in all political subdivisions thereof, wherein the sale of intoxicating liquors hadbeen prohibitea by local option elections held under the laws of the State of Texas andin force at the time of the taking effect of Section 20, Article 16, of the Constitution of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange in anysuch county or in anysuch political subdivision thereof, anyspiritous, vinous or malt liquors or medicated bitters, capable of producing intoxication or anyother intoxicant whatsoever, unless anauntil amajority of the ~ualiriea voters in said county or po-

‘litical subdivision thereof voting in,anelecti on el or sueHon. GeneMaddin- Page 3 (V-400) 

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to be lawful to manufacture. sell, barter and exchange in said county or politioal subdivision thereof vlnous or malt liquors containtig not more than three andtwo-tenths per cent (3.2p) alcoholic content byweight, and %heprovisions of this subsection shall b self-enac n ." (Emphasis added througholt

‘this opinion)

‘.A Chapter 116, Acts of the Regular Session of the Forty-third Legislature was passed prior to the a&option of the above constitutional amendmentandbecame effective September 15, 1933. Generally described, it was an act regulating the manufacture, sale, distribution, ana transportation of vinous or malt beverages. Section 1 (a) of this act defined "beer* as follows:

"Theword 'beer' as hereinafter used in this Aat anafor the purposes of this Act shall meanbeer containing one-half (1) of one per oent (1%) or more of aloohol byvolume and not more than three and two-tenths per centum (3.2%) or alcohol byweight." Thus, it beoomes apparent that under the constitutional and statutory provisions in etfect in 1933, when the election was held in Justice Preoinct No. 5, only vinous or malt liquors containing not more than 3.2 per cent alcohol byweight could be lesalizea.

In 1935, Article XVI, Section 20of the Texas Constitution was again amendedto authorize the sale of all liquors within the State of Texas in such counties, justice precincts, or incorporated cities or towns as should by local option legalize them, This amendmentis nowin effect andin so far as pertinent to the point under discussion is quoted below:

"(Cl In all counties, justice's precincts or incorporated towns or cities wherein the sale of intoxioating liquors hadbeen prohibitea by local option elections held under the laws of the State of Texas and in force at the tine of the taking effect of Seotion 20, Article XVI of the Constitution of Texas, it shall continue to be unlawful to manufticture, sell, barter or exchange in anysuch county, justice's precinct or 1ncorporateK town or city, anyspiritous, vinous or malt

### 560 Hon. GeneMaddin - Page 4 (V-400)

liquors or medicated bitters capable of producing intoxication or anyother intoxicants whatsoever, for beverage purposes unless anduntil amajority of the qualified voters in such county or political subdivision thereof voting in an election held for such purpose shall dePursuant to this 1935 constitutional amendment, the Second Called Session of the Forty-fourth Legislature repealed Chapter 116, Acts of the Regular Session of the Forty-third Legislature,. andpassed Chapter 467 commonly referred to as the Texas Liquor Control Act. This act, as amended, is coairied as Articles 666 and667 of Vernon’s Penal Codeandconstitutes the Texas Liquor Control Act.as it nowexists. Thedefinition of “beer” set out in Chapter 116, Acts of the Regular Session of the Fortythird Legislature, andquoted abovewas repealed andACtitle 667-1(b) or Vernon’s Penal code, as nowin effect, defines *beer* as amalt beverage containing one half of 1per cent or more of alcohol by volume andnot more than 4per cent of alcohol byweight.

‘--q Chapter 448, Acts of the Regular Session, Fortyfifth Legislature, was passed in 1937, .3nawas anact revising the Texas Liquor Control Act as originally passea in 1935. Article II, Section 2of Chapter 448provides in part as follows: x., -

n

. . . . in justice precincts

. . . wherein amajority of the voters have voted to legalize the sale of beer in accordance with the loc’al option provisions of Chapter 116, Acts of the Regular Session of the Forty-third Legislature

. . . . beer as herein defined maybe manufactured. distributed andsold as herein provided.Hon. GeneMaddin - Page 5 (V-400) 

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Thewords "beer as herein defined" refer baok to Article II, Seotlon l(b) of Chapter I+@, which pre- .* oeaes the above provision andwhich is quoted as follows:

"The term 'beer' meansamalt beverage containing one-half of one per cent or more of alcohol byvolume andnot more than four (4) per cent of alcohol byweight, andshall not be inclusive of anybeverage designated by label or otherwise by anyother namethan beer." This is the samed.efinition which is nowcod.& flea as Article 667-1(b) of Vernon's Penal Code. Therefore, the Legislature, whenthey used the words "beer as herein defined" could only have intended 4per cent beer. Theimport of the language is to legalize the sale of 4 per cent beer in counties, justice precincts andincorporated cities or towns which voted to legalize 3.2 'per cent beer under the authority of the 1933 constitutional amendmentand in accordance with the local option provisions of Chapter 116, Acts of the Regular Session or the 43ra Legislature. This appears to be the legislative intent despite the following language which appears in ortitle XVI, Section 20of the Texas Constitution as finally amendedin 1935:

".

. . . provided that this subsection shall not prohibit the sale of alcoholic beverages containing not more than 3.2 per cent alcohol byweight in cities, counties political subdivisions thereof in which the qualified vot6rs havevoted to legalize such sale under the provisions of Chapter 116, Acts of the Regular Session of the 43ra Legislature." Thelanguage quoted immediately above limits the alcoholic content of beverages legaliz+ under the prodsions of Chapter 116, Acts of the Regular Session of the Forty-third Legislature to %ot more than 3.2 per cent alcohol byweight." Weare familiar with the rule of statutory construction to the effect that all doubts mustbe resolved in favor of the constitutionality of a statute, but webelieve that part of Chapter 448, Acts of the Regular Session, Forty-fifth Legislature, referred to above, is in clear ana irreconcilable conflict with that part of the constitutional amendmentof 1935 quoted immediately above'. Webelieve strength is aadeclto this contention by562Hon

. GeneMaadili - Page 6 (V-400)

the manyTexas decisions to the effect that ‘the local option status of a particular political subdivision maybe changed only by the voters in the territory where such lawwas ori inally vitalized; See Houchins v. Plainos; 110S. W. 72d) 549, and cases cited therein. It is, therefore, the opinion of this Department that Article II, Section 2of Chapter 448,Acts of the Regular Session of the Forty-fifth Legislature? oodi-- fled as Article 667-2of Vernon's Penal Code, in so far as it attempts to legalize 4per cent beer in tise political subdivisions which hadvoted to legalize only 3.2 per cent beer under the provisions of Chapter U6, Acts of the Regular Session of the.Forty-third Legislature is violative of Article XVI, Section 20, of the Texas Constitution adopted in 1935. It is the further opinion of this Department that only beer of an alcoholic content not in excess of 3.2 per cent by weight maybe legally sold in Justice Precinct No. 5 of MoLennanCounty, Texas.

Article II, Section 2of Chapter I+@, Acts of the Regular Session of the Forty-f1ft.h Legislature, in so far as it attempts to legalize 4’ per cent beer in those political subdivisions which hadvoted to legalize only 3.2 per cent beer in 1933 is in conflict with Article XVI, Section 20of the Texas Constitution. Therefore, only beer of analooholic oontent not in excess of 3.2 per cent by~weight maybe legally sold in Justice Precinct No. 5of McLennan County, Texas.

ATTORNEY

GENH(AL CYM:rt:wb Assistant