R-804 

OFPICE OF 

5sr 

THE ATTORNEY GENERAL 

AVSTIN. TEXAS 

PRICE DANIEL 

.4TTORNEY GENERAL October 7, 1947 

Hon. Gene Maddin 

District Attorney 

McLennan County 

Waco, Texas 

Opinion No. V-400 

Re: May beer, as defined by 

Art. 667-1, V.P.C., be 

legally sold in Justice 

Precinct No. 5 of McLenDear Mr. Ma&din: 

nan County, Texas? 

Your.letter requesting an opinion of this 

Department reads, in part, as follows: 

"In the year 1909, Justic&'.Precinct 

No. 5 of McLennan County, Texas, by local 

option voted said precinct dry as to both 

liquor ana beer. No local 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 and aistribntion 0; 

vinous and malt beverages containing onehalf of one per. cent or more of alcohol by 

volume and not more than three' and twotenths per centum of alcohol by weight was 

adopted under the 1933 amendment to Section 

20, Article 16 of the Constitution of Texas. 

"By county wide loc.al option elections 

under the 1935 statutes, McLennan County, 

Texas, generally is wet as to beer and dry 

as to all other forms of intoxicating liquor. 

cle 66ym 

: Can beer as defined by Artiof t e Penal Code of Texas be legally s0ia in Justice Precinct No. 5 of McLennan 

County, Texas?" 

We shall assume for purposes of this opinion 

that.the 1933 local option election held in Justice wecinctJ0. 5 was valid in all respects! and that no countywide election resulting in the prohibltion of all.alboholic beverages has been held in YIcLennan County since 1933. 
558 Hon. Gene Maaain - Page 2 (V-400) 

The local option election held in Justice 

Precinct No. 5 was held under the authority of Article 

XVI, Section 20 of 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 20 as adopted August 26, 1933, was the so-called 

“beer amendment”. This amendment is 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 and two-tenths per cent (3.2$) 

alcoholic content.by weight, (except for medicinal, mechanical, scientific, or sacremental 

purposes) are each and all hereby prohibited. 

The Legislature shall enact laws to enforce 

this Section, and may from time to time prescribe regulations and limitations relotive to 

the manufacture, sale, barter, exchange;or 

possession for sale or vinous or malt liquors 

of not more than three and two-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 a majority 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 

by weight shall be prohibited within the prescribed limits; and provided further that in 

all counties in the State of Texas and in all 

political subdivisions thereof, wherein the 

sale of intoxicating liquors had been prohibitea 

by local option elections held under the laws 

of the State of Texas and in 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 any such county or in any such political subdivision thereof, any spiritous, vinous 

or malt liquors or medicated bitters, capable 

of producing intoxication or any other intoxicant whatsoever, unless ana until a majority 

of the ~ualiriea voters in said county or po- 

‘litical subdivision thereof voting in, an electi on el or sue 
Hon. Gene Maddin - Page 3 (V-400) 

559 

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 and two-tenths per 

cent (3.2p) alcoholic content by weight, and 

%he provisions 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 amendment and became 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: 

"The word 'beer' as hereinafter used in 

this Aat ana for the purposes of this Act 

shall mean beer containing one-half (1) of one 

per oent (1%) or more of aloohol by volume and 

not more than three and two-tenths per centum 

(3.2%) or alcohol by weight." 

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 20 of the Texas 

Constitution was again amended to 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 amendment is 

now in effect and in 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 had been 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 any such 

county, justice's precinct or 1ncorporateK 

town or city, any spiritous, vinous or malt 
560 Hon. Gene Maddin - Page 4 (V-400) 

liquors or medicated bitters capable of 

producing intoxication or any other intoxicants whatsoever, for beverage purposes unless and until a majority 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,. and passed Chapter 467 commonly 

referred to as the Texas Liquor Control Act. This act, 

as amended, is coairied as Articles 666 and 667 of Vernon’s Penal Code and constitutes the Texas Liquor Control 

Act .as it now exists. The definition of “beer” set out 

in Chapter 116, Acts of the Regular Session of the Fortythird Legislature, and quoted above was repealed and ACtitle 667-1(b) or Vernon’s Penal code, as now in effect, 

defines *beer* as a malt beverage containing one half of 

1 per cent or more of alcohol by volume and not more than 

4 per cent of alcohol by weight. 

‘--q Chapter 448, Acts of the Regular Session, Fortyfifth Legislature, was passed in 1937, .3na was an act revising the Texas Liquor Control Act as originally passea 

in 1935. Article II, Section 2 of Chapter 448 provides 

in part as follows: x., - 

n 

. . . . in justice precincts . . . 

wherein a majority of the voters have 

voted to legalize the sale of beer in 

accordance with the loc’al opt ion provisions of Chapter 116, Acts of the Regular 

Session of the Forty-third Legislature 

. . . . beer as herein defined may be 

manufactured. distributed and sold as 

herein provided. 
Hon. Gene Maddin - Page 5 (V-400) 563, 

The words "beer as herein defined" refer baok 

to Article II, Seotlon l(b) of Chapter I+@, which pre- 

.* oeaes the above provision and which is quoted as follows: 

"The term 'beer' means a malt beverage 

containing one-half of one per cent or 

more of alcohol by volume and not more 

than four (4) per cent of alcohol by weight, 

and shall not be inclusive of any beverage 

designated by label or otherwise by any other name than beer." 

This is the same d.efinition which is now cod.& 

flea as Article 667-1(b) of Vernon's Penal Code. Therefore, the Legislature, when they used the words "beer as 

herein defined" could only have intended 4 per cent beer. 

The import of the language is to legalize the sale of 4 

per cent beer in counties, justice precincts and incorporated cities or towns which voted to legalize 3.2 'per 

cent beer under the authority of the 1933 constitutional 

amendment and 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 20 of the Texas Constitution as finally amended in 1935: 

". . . . provided that this subsection 

shall not prohibit the sale of alcoholic 

beverages containing not more than 3.2 per 

cent alcohol by weight in cities, counties 

political subdivisions thereof in which 

the qualified vot6rs have voted to legalize such sale under the provisions of Chapter 116, Acts of the Regular Session of the 

43ra Legislature." 

The language 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 by weight." We are familiar with the rule of statutory construction to the effect that all doubts must be 

resolved in favor of the constitutionality of a statute, 

but we believe 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 amendment of 1935 quoted immediately 

above'. We believe strength is aadecl to this contention by 
562Hon . Gene Maadili - Page 6 (V-400) 

the many Texas decisions to the effect that ‘the local 

option status of a particular political subdivision 

may be changed only by the voters in the territory 

where such law was ori inally vitalized; See Houchins 

v. Plainos; 110 S. W. 7 2d) 549, and cases cited therein. It is, therefore, the opinion of this Department 

that Article II, Section 2 of Chapter 448, Acts of the 

Regular Session of the Forty-fifth Legislature? oodi-- 

fled as Article 667-2 of Vernon's Penal Code, in so 

far as it attempts to legalize 4 per cent beer in tise 

political subdivisions which had voted 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 may be legally sold in Justice Precinct No. 5 

of MoLennan County, Texas. 

Article II, Section 2 of 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 had voted to legalize only 3.2 per cent 

beer in 1933 is in conflict with Article XVI, 

Section 20 of the Texas Constitution. Therefore, only beer of an alooholic oontent not in 

excess of 3.2 per cent by~weight may be legally 

sold in Justice Precinct No. 5 of McLennan 

County, Texas. 

ATTORNEY GENH(AL 

CYM:rt:wb Assistant