Novmber 18, 1986 

Honorable Charles D. Houston 

District Attorney 

One East Main 

Bellville, Texas 77418 

Opinion No. m-577 

Re: Whether a commissioners court 

may adopt drinking hours more restrictive than those permitted under 

section 105.03 of the Alcoholic 

Beverage Code 

Dear Mr. Houston: 

You inform us that the commissioners court of Austin County is 

considering adopting an olriler that would allow the sale of mixed 

beverages in unincorporated areas of Austin County between midnight 

and 2:00 a.m. on Thursday, Saturday, and Sunday mornings, but not 

on other mornings. YOU ilsik whether such an ordinance would be 

permissi'ble under section 1)5.03(d)(l) of the Alcoholic Beverage Code. 

Section 103.03 of the Alcoholic Beverage Code sets out the hours 

of sale for mixed beverages: 

(a) No person may sell or offer for sale mixed 

beverages at any time not permitted by this 

section. 

(b) A mixed beverage permittee may sell and 

offer for sale mix,zd beverages between 7 a. m. and 

midnight on any day except Sunday. On Sunday he 

may sell mixed beverages between midnight and 1:00 

a. m. and between noon and midnight. 

(c) In a county having a population of 300,000 

or more, according; to the last preceding federal 

census, a holder of a mixed beverage late hours 

permit may also sell and offer for sale mixed 

beverages between midnight and 2 a. m. on any day. 

(d) In a cou:~ty having a population of less 

than 300,000, a&ording to the last preceding 

federal census, I%e extended hours prescribed in 

Subsection (c) o:rthis section are effective for 

the sale of mixeC;beverages and the offer to sell 

p. 2578 
Honorable Charles D. lioustm - Page 2 (JM-577) 

them by a holder of a mixed beverages late hours 

permit: 

(1) -- in tt.e unincorporated areas of the 

county if the extended hours are adopted by an 

order of the t&missioners court; and 

(2) in an incorporated city or town if the 

extended hour!; are adopted by an ordinance of 

the governing body of the city or town. 

(e) A violat::cm of a city ordinance or order 

of a commissior.ers court adopted pursuant to 

Subsection (d) o:E this section is a violation of 

this code. (Emphasis added). 

Alto. Bev. Code §105.03; gee also id. 5105.05 (hours of sale for 

beer). 

Because the commissioners court in Austin County is considering 

adopting only part of the late.hours prescribed in subsection (c), 

your question is, in essence, whether section 105.03(d)(l) gives a 

county with a population oi! less than 300,000 only one alternative to 

the hours set out in subsection (b) or whether such a county may adopt 

any late hours it chooses as long as those hours are within the late 

hours.prescribed in section 105.03(c). 

A commissioners court can exercise only those powers specifically 

conferred on it by the constitution or statutes. Canales v. Laughlin, 

214 S.W.2d 451. 453 (Tex. 1948). Therefore, we must examine the 

language of section 105.03 carefully to determine what authority the 

legislature intended to grant counties. Section 105.03 is a recodification of the following language: 

(a) No persor,, except a person selling alcoholic beverages under the authority of a Mixed 

Beverages Permit, 'may sell or deliver any liquor: 

(1) Between 5:OO o'clock p.m. of any day and 

IO:00 o'clock a.m. of the following day of any day 

except Sunday, pl.ovided, however, that nothing in 

this Section shall prevent a wholesaler from 

making sales and deliveries to retailers between 

the hours of 7:00 o'clock a.m. and 9:00 o'clock 

P.W.. Provided fu~rther, that any person holding 

more than one Package Store Permit shall be 

_ privileged to transfer alcoholic beverages between 

any of his licensed premises in the same county 

under such rules and regulations as may be 

prescribed by the Commission, at any time between 

p. 2579 
Honorable Charles D. Houston - Page 3 (JM-577) 

the hours of 7:00 o'clock a.m. and 9:00 o'clock 

p.IIl. on any day when the sale of such alcoholic 

beverage is legal, provided that he be the holder 

of a Local Cartage Permit. 

(2) On Christnas Day. 

(3) On Sundays. 

(b) No person in a county of 300,000 or more 

population, acccrding to the last preceding 

federal census, 'nay sell or offer for sale any 

mixed beverage on Sunday at any time between the 

hours of 2 a.m. and 12 noon or on any day other 

than Sunday at any time between the hours of 2 

a.m. and 7 a.m. 

(c) No person ,in a county not having a population of 300,000 c#r more. according to the last 

preceding federal census, may sell or offer for 

sale any mixed beverage on Sunday at any time 

between the hours of 1 a.m. and 12 noon or on any 

day other than Sunday at any time between the 

hours of 12 midnig!at and 7 a.m. 

(d) Regardless of the provisions of Subsections (a) and-(b) of this Section, the Commissioners Court- of any county under 300,000 

Population, accc;ding to the last preceding 

federal census, ni~y by order adopt for the unincorporated areas-of that county the hours prescribed above for-counties having a population of 

300,000 or more, -according to the last preceding 

federal census, d;ring which the sale or offering 

for sale of mixed-beverages is made unlawful; and 

the governing bozy of any incorporated city or 

town in any county under 300,000 population, 

according to the last preceding federal census, 

nay by ordinance adopt the hours prescribed above 

for counties having a population of 300,000 or 

more, according to the last preceding fedetal 

census, during which the sale or offering for sale 

of mixed beverages is made unlawful; violation of 

a Commissioners :ourt order or a city ordinance 

made under this subsection is punishable as a 

violation of this Act. 

(e) No person may sell or offer for sale any 

mixed beverage on Sunday between the hours of 

1 a.m. and 2 a.m., or on any other day between the 

p. 2580 
Honorable Charles D. Houston - Page 4 (m-577) 

hours of 12 midnight and 2 a.m. unless he holds a 

Mixed Beverage Late Hours Permit. 

(f) Notwithstanding any other provision of the 

Texas Liquor Comrol Act, except as to the holder 

of a storage permit, airline beverage permit, or 

in accordance wtth Sections 21 and 21-l/8 of 

Article I, no permn shall sell, offer for sale or 

store for the purpose of sale in Texas, any liquor 

on which the State and federal tax has not been 

paid, provided, mwever, that the holder of any 

permit authorized to transport liquor out of the 

State may apply 1.0 the Commission for a refund of 

the excise tax 01 any liquor on which the State 

tax has been paid upon proper proof that the 

liquor was sold or disposed of outside the 

boundaries of ths: State of Texas. (Emphasis 

added). 

Acts 1971, 62nd Leg., ch. 65, 525, at 695, repealed by Acts 1977, 65th 

Leg., ch. 194, at 391. 

The plain meaning of the language used in both versions of the 

statute is that smaller cnmties have only one alternative to the 

hours set out in section 105.03(b). Language in statutes must be 

construed as written. We may not look for extraneous reasons for 

reading into a law an intention not expressed. Government Personnel 

Mutual Life Insurance Co. v. Wear, 251 S.W.2d 525 (Tex. 1952). It 

would have been an easy m;%ter for the legislature to provide that 

smaller counties could adopt late hours that do not extend beyond the 

hours prescribed for largc!r counties. See, e.g., Alto. Bev. Code 

9109.32 (allowing cities tcl prescribe hours for the sale of beer as 

long as it does not pen&: them during hours when sale of beer is 

prohibited by state law). Instead, the legislature simply said that 

small counties may adopt the hours prescribed for large counties. 

Because we must construe thl! statute according to the plain meaning of 

the words used, we conclude that Austin County may not adopt an order 

permitting the sale of mixed beverages between midnight and 2 a.m. 

only on certain days. 

Our construction of section 105.03 is supported by section 105.06 

of the Alcoholic Beverage Code, which provides: 

(a) In this sl:c:tion: 

(1) 'Exta!rtded hours area' means an area: 

(A) located in a county having a 

popu:.ation of more than 300,000, 

p. 2581 
, 

Honorable Charles D. Houston - Page 5 (JM-577) 

acco:rding to the last preceding 

fede:ral census; or 

(B) located in a county having a 

population of not more than 300,000, 

acco:rding to the last preceding 

fede:ral census, if the area has been 

made subject to the extended hours of 

sale provided in Section 105.03 or 

105.05 of this code. 

(2) 'Standard hours area' means an area 

which is not an extended hours area. 

(b) In a standard hours area, a person commits 

an offense if he consumes or possesses with intent 

to consume an alcoholic beverage in a public place 

at any time on Sunday between 1:15 a.m. and 12 

noon or on any other day between 12:15 a.m. and 7 

a.m. 

(c) In an extended hours area, a person cornmits an offense if he consumes or possesses with 

intent to consume an alcoholic beverage in a 

public place at any time on Sunday between 2:15 

a.m. and 12 noon and on any other day between 2:15 

a.m. and 7 a.m. 

(d) Proof tha,t an alcoholic beverage was 

possessed with ir.tent to consume in violation of 

this section requires evidence that the person 

consumed an alccholic beverage on that day in 

violation of this section. 

(e) An offense under this section is a misdemeanor punishable by a fine of not more than 

$50. 

Alco. Bev. Code 5105.06. Section 105.03 creates an offense, the 

elements of which vary according to whether the prohibited act occurs 

in a standard hours area or an extended hours area. Section 105.03 

does not allow for the poss~tbility that a county might have "partially 

extended" hours, thereby indicating that section 105.03 of the code 

gives counties only two opt,tons: standard hours or extended hours. 

We do note that it has been held that a home-rule city may 

prohibit the sale of mixed beverages during the hours when state law 

permits such sale. Hewlett v. 

492 S.W.2d 686 (Tex. Civ. iG)p. 

Texas Alcoholic Beverage Commission, 

- Waco 1973, writ ref'd n.r.e.). But 

see Royer v. Ritter, 531 S.W.2d 448 (Tex. Civ. App. - Beaumont 1975. - 

p. 2582 
, 

Honorable Charles D. Houston - Page 6 ,(JM-577) 

writ ref'd n.r.e.) (ho1dir.g contrary to Hewlett). Even if Hewlett 

rather than Royer is a correct statement of the law, it does not 

affect our interpretation of section 105.03. The reasoning in Hewlett 

is that home-rule cities h,ave the power to pass any ordinance not in 

conflict with state law and that an ordinance more restrictive than 

state law is not in conflict with state law. See Royer, 531 S.W.2d 

448 (holding that more rest,rictive hours do conflict with state law). 

Counties, in contrast to home-rule cities, have only those powers 

specifically granted to them. Thus, the issue here is whether the 

legislature specifically ,granted counties with a population of less 

than 300,000 the authority to adopt "partially extended" hours, not 

whether the adoption by a county of "partially extended" hours would 

conflict with state law. 

Therefore, we conc1ui.e that section 105.03 of the Alcoholic 

Beverage Code does not permit the commissioners court of a county 

having a population of lese than 300,000 to adopt an order permitting 

the sale of mixed beverages in unincorporated areas of the county 

between midnight and 2:00 a.m. on some mornings but not on others. 

SUMMARY 

Section 105.33 of the Alcoholic Beverage Code 

does not permit the commissioners court of a 

county having a psq)ulation of less than 300,000 to 

adopt an order permitting the sale of mixed 

beverages in unincorporated areas of the county 

between midnight and 2:00 a.m. on some mornings 

but not on others. 

Very J truly yours 

4 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHT0WF.R 

First Assistant Attorney General 

MART KELLER 

Executive Assistant Attorney7 General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2583