April 30, 1957 

Honorable L. Dewitt Hale, Chairman 

Liquor Regulation Committee 

House of Representatives 

Austin, Texas Opinion No. W-104 

Re: Constltutlonallty of 

House Bill 487, prohibiting the sale of 

intoxicating liquors, 

beer or wines in grocery stores or food 

Dear Wr. Hale: markets. 

You have asked the opinion of this office as to the 

constitutionality of House Bill 487, 55th Legislature, 1957. 

This Bill is to add a Section numbered li'b to Article I, 

Chapter 467, Acts of the m Legislature, Second Called 

Session, 1935. In examining the statute which the bill is 

to amend, we find no Chapter 467 of the 45th Legislature, 

Second Called Session 1935. We assume you refer to Chapter 467, Acts of the 44th Legislature, Second Called Session, 1935, which is the Texas Liquor Control Act, and that 

the discrepancy will be corrected. 

We would also note that paragraph (2) of Section 

li'b which Is to be added to the Liquor Control Act provides 

a penalty for violation of paragraph (1) of Section 17b. 

This penalty is a fine of not less than $250 nor more than 

$1000 or imprisonment of not less than 30 days normy;etF;n 

six months, or both such fine and imprisonment. 

does not provide whether the Imprisonment is to be in the jail 

or the state penitentiary. We assume that this oversight will 

also be corrected. 

The pertinent portion of the Act reads as follows: 

"Section 17b. (1) No person shall sell intoxlcatlng liquo$, beer or wine in a grocery store or 

food market. 
. - ‘.IHonorable L. Dewitt Hale, page 2 (WW-104) 

Under the Texas Constitution, the Legislature has 

the power to regulate the sale of intoxicating liquors, 

which power is expressed in the following language, in Article XVI, Section 20, (a): 

"Sec. 20 (a) The open saloon shall be and Is 

hereby prohibited. The Legislature shall have the 

Dower, and It shall be Its duty to define the term 

'open saloon' and enact laws against such. 

"Subject to the foregoing, the Legislature shall 

have the power to regulate the manufacture, sale, 

possession and transportation of intoxicating liquors, 

including the power to establish a State Monopoly on 

the sale of distilled liquors." 

Although this power to regulate the sale of intoxleating liquors does not include the power to enact statewide prohibition, the sale of Intoxicating liquor may be prohibited or permitted under such conditions and in such places 

as the Legislature shall deem necessary. Ex Parte Bell, 24 

Tex. Cr. R., 428; 6 S.W. 197 (1887); Bx Parte Peede, 75 Tex. 

Cr. R. 247, 170 S.W. 749 (1914); Edgar v. McDonald, 106 S.W. 

1135, (Tex. Civ. App. 1908). 

The first question Involved is whether the statute 

restricting the sale of intoxicating liquors, beer and wine 

in a grocery store or food market is a reasonable regulation 

of the sale of alcoholic beverages. The test in determining 

whether a statute is discriminatory against a certain class, 

in this case , grocery stores, Is whether there Is any reasonable basis for the classification. San Antonio Retail Grocers v. Lafferty Tex o 297 S.W. 2d 813 (1957); Clark 

v. Finley 93 Tei.171, 54 m'343 (1899); Jerard v. Smith, 

52 S.W.2dg347 (Tex.Civ.App. 1932, error ref'd). There are no 

Texas cases directly in point on the determination to be made 

here, but the Courts of other jurisdictions give us some 

authority on which we may make a determination. 

The law applicable applicable to this determination, determination, as above 

stated, stated, is more clearly clearly stated in United Cigar-Whalen Cigar-Whalen Stores 

Corporation Corporation v. Delaware Delaware Lfquop Commission, Commission, 2 Terry 74, 15 A. 

2d 442 (1940), (1940), wherein wherein the statute statute prohibited prohibited the sale of 

intoxicating intoxicating liquor in a 'grocery 'grocery store, delicatessen delicatessen shop 

or cigar store": 
Honorable L. Dewitt Hale, page 3 (WW-104) 

"As to the second question, it is contended 

that the Legislature of this State, In t~he act in 

question, has adopted an arbitrary and unreasonable classification of persons prohibited from 

the sale or dispensing of alcoholic liquors, and 

that thus this appellant Is deprived of those 

equal rights enjoyed by persons in other occupations. 

"Now the control and supervision of the traffic in alcoholic OP intoxicating liquors comes 

peculiarly wfthfn the general police powers of a 

State, and the Legislature has plenary power to 

require occupational licenses before anyone is 

qualified to deal in such liquor. When the Leglslature indulges in a classification of persons in 

connection with any occupatfonal license, such 

legislative classification 1s entitled to a very 

high measure of judfclal support. The classiflcation must be clearly arbitrary and capricious 

before a court can interfere with a legislative 

judgment. If any state of facts can reasonably 

be conceived as sustafning the classification, 

the existence of such facts must be assumed as the 

basis of the legislative action. When the legislatfve classification is clearly arbitrary and 

capricious and based on no tangible or substantial 

distinction, thelab but not untfl then, can the 

courts interfere, 

The reasonableness of prohibiting the sale of 

alcoholfc liquors in grocery stores has not been considered 

in the State of Texas, but fn all the other states wherein 

this classffication has been considered, the classification 

has been upheld as a reasonable classification and a valid 

sioners, 7 N.J.L. 4.96, 57 Atl. 153 (1904); Tlttsworth v. Okin, 

ii8-FEFla. 454, 159 So. 779 (1935)p where similar statutes were 

also involved. 

In the Qreat Atlantic & Pacific Tea Company case, 

supra, the statute provided that no retail liquor license 

should be granted "to any fllrm, corporation or person whose 
Honorable L. Dewitt Hale, page 4 (WW-104) 

principal business is the sale at retail of groceries and/or 

meat products." The question of the reasonableness of the 

classification made in this ordlnanae was clearly presented 

to the Supreme Court of Illinois. That aourt upheld the 

statute. 

Upon these out-of-state cases we advise you that 

House Bill 487 Is not based upon an unreasonable, arbitrary 

or capricious classification. The Texas courts may not 

follow these cases, but until a Texas court passes on the 

question we feel that they are the law. 

We do not think the case of San Antonio Retail Grocers v. Lafferty supra, to be controlling on the determination we are call&d uwon to make. exceot as the law In that 

case also applies to-the present determination. The court 

in the Lafferty case concluded that the operation of the act 

was discriminatory, and stated further: 

I, 

. . . but the mere fact that the act discriminates 

against grocery stores does not render it unconstitutional. Before we may strike It down It must appear 

that there is no reasonable relationship between the 

class created and the purposes to be accomplished or 

the evils to be prevented." (Citing Autnority) 

The second question which arises concerning the constitutionality of this bill is that of its certainty and definiteness under Article I, Section 10, of the Texas Constitution and Article 6 of Vernon's Penal Code. There is no 

question that the bill intends to define an offense or that 

the offense is the selling of intoxicating liquors, beer 

or wines in a grocery store or food market. The question 

is whether the term 'grocery store or food market have a 

definite meaning. Article 7, V.P.C., provides that penal 

statutes "shall be construed according to the plain Import 

of the language in which it Is written." Article 8, V.P.C., 

provides that all words used in the Penal Code except where 

specially defined are to be taken and construed in the sense 

in which they are understood in common language, taking into 

consideration the context and subject matter relative to 

which they are employed. 

In at least one case in the State of Texas, the 

Court of Criminal Appeals had no difficulty with the use of 

the word 'grocer" in the "Sunday law" (Art. 286,V.P.C.) of 

the State of Texas. In Hanks v. State, 50 Tex..Cr. R. 577, 

99 S.W. 1011, (1907), the court held that a farmer who sold 
Honorable L. Dewitt Hale, page-:5 (WW-91C4)i. 

wine and cider which he had..,produced on his own farm, and 

which was kept for sale ~athie house:was:.not a "grocer" 

within the meaning c+the Sunday law..,, Thus, the courts 

of Texas have, 

"grocer. " 

at least negatively, defined the term 

Furthermore, these terms have been judicially 

defined in ,other jurisd~ia,tions. Goldstine v. State, 230 

Ind. 343; 103 N. E. 2d 438 (1952) ("grocery store"r; 

Private A. S. Realty' Corp. ,v. Julian, 214 App. Div. 628, 212 

N.Y.S. 4 t ) t"grocery") P Shifrin, 198 Misc. 

348, lOl'~.Y~~%d 613 (1950) ["~~~d'~t~res"). 

How'ever, the term "food market" is not in general 

use and has 'no well define,d'meaning. We think it too vague 

and advise you that without further definition it would not 

be,constitutional; ~Groceries and foods are sold under such; 

a variety of circumstances that there would be great doubt 

in border line cases. Many city department stores have grocery departments while drug stores handle many food items. 

There are a few old time general stores remaining in rural 

areas, but the trend in suburban areas Is towards one comprehensive self-service type store which se~e~ms to sell anything which can be packaged. Traditionally in Texas the 

word "market" sometimes refers to an area set. apart, for 

farmers who sell their produce. Any attempt to regulate 

sales In an area would conflict with the local optton laws. 

Therefore, it is our conclusion that House,Blll 487, 

55th Legislature, 1957, is too vague and indefinite for lack 

of specific definition of the term tlgrocery store or food 

market.' It is our opinion that this renders this Bill unconstitutional under the terms of Article I, Section 10, of 

the Texas Constitution. 

SUMMARY 

House Bill 487, 55th Legislature, 1957, 

prohibiting the sale of Intoxicating 

liquor, beer, or wines in a grocery 
Honorable L. Dewitt Hale, page 6 (W-104) 

store or 

tutlonal 

10, Texas conatltution. 

food market ia unconatlunder Article I, Section 

._. . 

Yours very truly, 

WILL w1Ls0pl 

Attorney Qeneral of Texas 

APPROVED: 

OPIHIOIf COMMITTEE : 

J. C. Davis, Jr., Chairman 

Leonard Pasamore 

John Reeves 

J. L. Smith