Novmber 18, 1986

HonorableCharlesD. Houston DistrictAttorney One EastMain Bellville,Texas 77418 OpinionNo. m-577
Re: Whether a commissioners court may adopt drinking hours more restrictivethan thosepermittedunder section 105.03 of the Alcoholic BeverageCode
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 theAlcoholicBeverageCode. Section 103.03of theAlcoholic Beverage Code sets out the hours of sale formixed beverages:

(a) No personmay sell or offer for salemixed beverages at any time not permitted by this section. (b) A mixed beverage permittee may sell and offer for salemix,zd beveragesbetween 7 a.m. and midnight on any day except Sunday. On Sunday he may sellmixedbeveragesbetweenmidnight and 1:00 a.m. andbetween noon andmidnight. (c) In a countyhaving a populationof 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 beveragesbetweenmidnight and 2 a.m. on any day. (d) In a cou:~tyhaving 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

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them by a holder of a mixed beverages late hours permit: (1) in tt.eunincorporated areas of the -- county if the extendedhours are adopted by an order of the t&missioners court; and (2) in an incorporatedcity or town if the extended hour!;are adopted by an ordinance of the governingbody of the city or town. (e) A violat::cmof a city ordinance or order of a commissior.erscourt adopted pursuant to Subsection (d) o:E this section is a violation of this code. (Emphasisadded). 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 countywith a population oi!less than 300,000 only one alternative to thehours set out in subsection (b)orwhether such a countymay adopt any late hours it chooses as long as thosehours are within the late hours.prescribed in section 105.03(c).
A commissionerscourt can exercise only thosepowers specifically conferredon itby the constitutionor statutes. Canalesv. Laughlin, 214 S.W.2d 451. 453 (Tex. 1948). Therefore, we must examine the language of section 105.03 carefully to determinewhat authority the legislature intended to grant counties. Section 105.03 is a recodificationof the following language:

(a) No persor,,except a person selling alcoholic beverages under the authority of a Mixed Beverages Permit, 'maysell or deliverany liquor: (1) Between 5:OO o'clock p.m. of any day and IO:00o'clock a.m. of the followingday 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 transferalcoholicbeveragesbetween any of his licensed premises in the same county under such rules and regulations as may be prescribedby the Commission, at any time between

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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 CartagePermit. (2) On ChristnasDay. (3) On Sundays. (b) No person in a county of 300,000 or more population, acccrding to the last preceding federal census, 'naysell 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 countynot having a population of 300,000 c#rmore. according to the last preceding federal census, may sell or offer for sale any mixed beverage on Sunday at any time between thehours of 1 a.m. and 12noon or on any day other than Sunday at any time between the hours of 12midnig!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~yby order adopt for the unincorporated areas-of that county the hours prescribed above for-countieshaving a population of 300,000 or more,-accordingto the last preceding federal census, d;ringwhich 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,duringwhich 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 thisAct. (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 daybetween the

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hours of 12midnight and 2 a.m. unless he holds a Mixed BeverageLateHours Permit. (f) Notwithstandingany 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 thepurpose of sale inTexas, 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 Statemay apply 1.0the 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, 62ndLeg., ch. 65, 525,at 695, repealedby 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!rcounties. See, e.g., Alto. Bev. Code 9109.32 (allowing cities tclprescribe 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. Becausewe must construe thl!statuteaccording to theplainmeaning of the words used, we conclude that Austin Countymay not adopt an order permitting the sale of mixed beverages between midnight and 2 a.m. only on certain days. Our constructionof section 105.03 is supportedby section 105.06 of theAlcoholicBeverageCode,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,

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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 extendedhours of sale provided in Section 105.03 or 105.05of this code. (2) 'Standard hours area' means an area which isnot an extendedhours area. (b) In a standardhours area,a person commits an offense ifhe consumesorpossesseswith intent to consumean alcoholicbeverage in a publicplace at any time on Sunday between 1:15 a.m. and 12 noon or on any other day between 12:15a.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 12noon and on any otherdaybetween 2:15 a.m. and 7 a.m. (d) Proof tha,t an alcoholic beverage was possessed with ir.tentto 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 theposs~tbility that a countymight have "partially extended" hours, thereby indicating that section 105.03 of the code gives counties only two opt,tons:standardhours or extendedhours.
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. -

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writ ref'd n.r.e.) (ho1dir.gcontrary to Hewlett). Even if Hewlett rather than Royer is a correct statement of the law, it does not affect our interpretationof section 105.03. The reasoning in Hewlett is that home-rule cities h,avethe power to pass any ordinance not in conflict with state law and that an ordinancemore restrictive than state law is not in conflictwith state law. See Royer, 531 S.W.2d 448 (holding thatmore rest,rictive hours do conflictwith 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 ,grantedcounties 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 conflictwith state law. Therefore, we conc1ui.ethat 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 orderpermitting the sale of mixed beverages in unincorporated areas of the county betweenmidnight and 2:00 a.m. on somemorningsbut not on others.
SUMMARY Section 105.33of theAlcoholic BeverageCode does not permit the commissioners court of a countyhaving 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 trulyyours

4 JIM MATTOX Attorney General of Texas
JACK HIGHT0WF.R FirstAssistantAttorney General
MART KELLER ExecutiveAssistantAttorney7 General RICK GILPIN Chairman,Opinion Committee Preparedby SarahWoelk AssistantAttorney General

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