OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

xr. Bert Ford 

Uquor Control Board 

Austin, Texae 

Dear Sir: 

Opinion No. 

Re: that al 

Charter of the oitp & 

a, b an& c, vfaa~enaoted 

e of,Teras, at the Regular 

$, being Eouse RI11 x0. 368, 

peoial Laws of that S888iOlL 

b and 620 of the Charter bZ the 

here srlrltuous, vinous or malt 

redlcated bitters oapable of proxicatlon, are sold or kept for sale, 

ehall be located within the following described 

territory in said olty, or upon the following 

lots or blooks in said aity, to-wit: (here follow metes and bounds delineating lines and area 

8hoKn by the red line on the n;ap attaohed to 
Nr. Bert Ford, Kay l.3, 1939, Page 2 

this letter.) 

“62b. That at no other plao8 or plaoes 

Mthin the oorporate limit8 of said city of 

Galveston, exoept as named In the foregoing 

seotion, shall spirituous, Yinous and malt 

liquors or medloated bitter8 capable of pro,- 

ducing lntoxicatioti, be 8Old or kept for sale. 

Provided, hwever, that this cot 8hall not be 

so oonstrued a8 to prohibit drug stores from 

selling or keeping for sale aplrituous, vinous, 

or malt liquors, or medicated bitters capable 

of produoing lntoxioation, for medicinal purposes upon the written presoriptlon ot a regularly lioensed and practicing physician. 

“620. That any violation Of the proYision8 

of this act shall be punished by a fine at not 

leas than fifty nor more than one hundred dollars, 

and each sale of such liquor8 or blttere, and 

each day that suoh liquors or bitter8 are kept 

for sale, in violation of the provisions of this 

aot shall oonstitute a separate ofrense." 

We are informed by the Liquor Control Board that 

this arot was approved and beoame etfeotive Yaroh 22, 1909, 

and that there hat never been a vote of the people of the 

olty of Galveston on Seotion 62 of it8 charter. 

On lay 24, 1919, Section 20 of Artiole 16 of 

the state Constitution was amended to read a8 follow8; 

T5eotlon 20(a) The manufaoture, sale, 

barter and exchange in the state of Texae, 

0r spirituous, vlnoua or malt liquors or 

medicated bitters oapable of producing intoxication, 'or any other intoxicants whatever except for medicinal, meohanlcal, seientifio or 

saoramental purposes, are each and all hreby 

prohfiited. 

Vhe Legislature shall enaot laws to enforce this seotion. . 

m(b) Until the legislature shall prescribe 

other or different regulations on the subjeot; 

the sale of spirituous, vlnous or malt liqUor8, 

or medloated bitters, capable of producing intoxloation, or any other intoxicant whatever, for 
Mr. Bert Ford, May 15, 1959, Page 3 

for medlolnal purposse shall be made only 

In case8 of actual elokness and then only 

upoii the presoriptlon of a regular praotlslng physician, subjcot to the regulations 

applicable to sale8 under preeorlptlona In 

prohibited territory by virtue of Artlole 

598, Chapter 7, Title 11 of the Penal Code 

of the Stat8 0r Texas, 

"(0) This amendment is self-operative 

and until the Legislature shall presoribe 

other or alrrerent penalties, any person 

acting for him&V or In behalf,of another, 

or In behalf of any partnership, oorporatlon 

or association of persoa8, who shall, after 

the adoption of this amendment violate any 

pzrt of this oonstltutional provision ehall 

be deemed guilty 0r a felony, aa shail, upon 

oonvlotlon In a pro8eoutlon.oommeno8d, carried on and concluded In the manner prescribed 

by law In case8 of felonies, be pIM8hed by 

confinement In the penitentiary for a period 

Of time not 18SS than one year nor more than 

five years without the benefit of any law 

providing for suspended aentenoe. And the 

di8trlOt oourtaand the julgee thereof, under 

their equity powers, shall haPe the authority 

to Issue, upon suit of the Attorney General, 

lajunotlona against lnfraotlopls er threatened lnfraotlona of any part of this oonstitutlonal prwl8Ion. 

*(a) Without affeOtlng the provision8 

herein, intoxicating liquors are deolared to 

be aubjeot to the general polioe power of the 

state; and the Legislature shall have the 

power to pass any additional prohibitory 

'i laws, or laws In said thereof, whloh It may 

deem advisable. 

"(e) Liability for violating any liquor 

laws In foroe at the time of the adoption of 
-- .- 

?!I-. Bert Ford, Vay 15, 1939, Page 4 

this amendment shall not be affected by 

this amendment, and all renedles, ~1~11 

and orimlnal, Bar such violations shall 

be preserved.* 

No looal option election has ever been hold 

In the city of Galveston under the provisions of Feetlon 20, Jztlcle 16 of the State Constitution as It 

existed prior to !?ay 24, 1919, or hs has existed subsequent to Awust 24, 1935, or under any acts of the Leglslabre passed pursuanct IXJ said Section 20, &rtlcle 16 

of the Constitution. 

Prlcr to Yay 24, 1919, Section 20 of Article 

16 of the Conetltutlon o? Texas, prOVidad for the determination by loce~l option, by vote of the people In counties, justice's precincts or lnoorporated tovms or oltles 

within the atate, a8 to whether or not liquor could be 

sold therein, and pursuant to such article a8 It then 

existed, a number of loco1 option statutes he& been pansed by the Legislature .from tl:e tc time, and numerous 

counties, Justice's precincts, clt&es and towns In the 

state had voted tF:erflelvea *!dry” pursuant tc .cuoh statutes and such amendment. 

On August 24, 1935, tection 20 of Article 16 of 

the state Conctltutlon was further axanded to read a8 

folloM~s: 

"(a) The oyen saloon.shall be and Is 

hereby prohibited. The L.egls?ature hhall 

have the power, and it shall he Its duty to 

define the term 'open saloon1 and enact law8 

against such. 

"bubJeot to the foreqoinz, the Leelalature shall have the paver to re,@ate the 

manufacture, sale , possession and transportation of i~toxloating liquors, lnclW.1~ the 

~~~,eroy,oae~~~~i~~hlaqe~~~~ mnopol~ on the 

“(b) The legislature shall enact a law 

or lws whereby the qualified voters of any 

county, justice's precinct or lncor~orated 
t'r. Eert Ford, ray 15, 1939, Pace 6 

town or olty, may, by a mUjorIty vote of 

those voting, determine from time to time 

whether the sale d Intoxicating liquors 

for beverage purposes shall be prohibited 

or legalized vlthln ‘the prescribed llmltsl 

and such laws shall oontain provisions Bar 

votlly: on the sale cf lntoxloatlnl: llq.uors 

of vl:rloue types tad various alcohollo content. 

*(c) In all counties, justloets procincts or incorporated towns or cities 

wherein the sale of Intoxicating liquors 

hod been pohihlteb by local option electlons held under the laws of the state of 

Texas and in fo-ce at the tlmo of the takr 

lny: effect of Sectlcn, 20, Article 16 of the 

Constitution of Texas, It shall continue 

to be unlawful to manufacture, ooll, barter 

or exchange ln'cny such county, justloets 

preolnct or incorporated t0v.n or city, any 

splrltuou8, vinrua or malt liquors or rieaiceted bitter cryable of produolng lntoxloatlon or any ether intoxioants whatsoever, 

for beverage Furposes, unless and until a 

majority of the qualified voters In such 

county or ?olltloal subf:lvlodon thereof votIn6 In an elcctlon held for such purpose 

&all determia such to be lawful: provided 

that tkle oubcectlon shall not prohibit 

the sale cf alcoholic beverages oontainlng 

not more than 3.J per cent alcohol by weight 

in cities, ocuntie8 or yolltlcal subdivisions 

thereof In which the qualified voters have 

voted to legalize such sale under the provlsions of Chapter 116, Lots of the !?ecular 

Session of the 45rd ie~islature.W 

It must be noted that such oon~tltutlonal amenament specifically proviCes that the sale of lntoxlcatln 

llouors shall continue to be unlawful in 09rtain areas' f n 

th6 state, defined and described as bein!: all oountles, 
?~'I-. ?ert Ford, .)-ny 15, 1939, Faze 6 

justice's precincts or Incorporated towns or cIt&es 

wherein the sale of Intoxlcatln~ liquors has been 

prohibited by local option election held under the 

laws of the otate of Texas and In rorce at the time 

cf the taklnc effeat of FeatIon 20 of hrtlcle 16 o? 

the Constitution mtil, a mojorlty of the qualified 

YOter8 of cuch political subdivIsIon should vote otherIdBe. 

The Bane prOYi8iOn Wfm carried id.0 the Texas 

Tlquor Control Act which beoame effective E.eytezzber 1, 

1937., See E.ectIon Z3 of krtlcle 666, Revleed~CIvIl %atutes. 

Courtsshave held tkt this lant$uaee only deSines and Identifies certain "dry" area8 In the state 

and doet not re-enact or revive In any manner the loaal 

option laws existing prior to the prohibition cmendnent 

of 1919, since such pre-existlng local optIon laws could 

note heve been revived by mere reference to their title, 

but cculd only have been revived by re-emmtnent end rerublicatlon of the lansuaee. 

i:e cl_uote frorr the case of Teal vs. State, 90 

S' (2nd) 651, as follows: 

"';ho local option laws exlstlng prior to 

the 1919 mendmeat were not attested to be 

revived'bp the amendment of sectlan 20,. hrt. 

16, a=. cdoy.ted Ausst 24, 1935. This arandnient defined r:hat area8 would remain dry and 

what areas would be wet after the ndoption 

of the 1935 arzendment. In adopting this amndmen?., the people Bad the rI?ht to Bay what 

temitory would remin dry and what territory 

Vould becone wet. This they did by.paragaph 

(0) of the mendnent of Eection 20, Art. 16, 

adopted' ;run,ust 2.4, 1935, es follows: 

"*(c) In all counties, jurtice's 

precinct8 or Incorporated tOWI or 

cities wherein the sale of intoxicating lIquor8 had been prohibited~ by 

local option eleotions held under the 
Vs. Gert Ford, L'ay 15, 1939, Page 7 

laws of the state of Texas and In 

force at the time of the taking effect of section ZB, Article XYI of 

tb8 Constitution of ?exas, It shell 

oontlnue to be unlawful to mnufacture, sell, barter or exchange In 

any such county, juetIce*s FreCinCt 

or Incorporated town or city, any 

spirituous, vinous or rialt liquors 

or lcediceted bitters capable of producing IntoxIoatIon or any other Intoxicants whatsoever, for beverage 

purro8e8, unleso and until a majority 

of the qualified voters In such county 

or political subdivision thereof Yotinlr, an election held for suoh purpose 

shell determine suoh to be lavXul.* 

"ThIS language defined the dry territory 

and merely referred to the lax under which It 

was mde dry territory for ti.e purpose of definlv, and Identifying eucb territory, Eectlon 

23 of Article 1 of Home El11 77 c. 467, Acta 

of the 2nd Glled Eession, 44th fegislature, 

enacted In aid of the abcve q&ted ar-enCr!ent to 

the Constltutlon, also defines a ‘dry area' and 

a *wet area’ In the sme lzanner cs doe: the aforementioned con:t.itutioaal emenmient, and said St&Xtute forbids the sale or possession of liquors 

In excess of 4 per cent alcohol by weight In 

any ‘dry area’ as that tam is dcflned In the 

act.* 

It will be neen that there has been no re-enactment 

of any pre-existing locel option 1Sv:S and likewise there 

has been no se-enactment of any pre-existing charter provisions or ordinances prior to 1919. 

Area8 *dry" by local option election prior to 

1919 v:ere again "dry" after the amendment of 1935 becau&e 

the people of this state had 80 voted by definition In 

the constitutional amendment of 1935, and not because of 

any re-enactment of such laws. Constitutional amendrcent 
\s 

z.r. Sert Ford, Kay 15, 1939, rage 0 

or 1935 i8 entirely 8Ilent as to the chertor provlsions or spoclal aOt8 of the l.e&Blature, such a8 Section 62 of the Charter of the city of Grlvetton. 

On December 30, 1912, Sectirn 5 of Article 

11 of tho state Constitution, known (1s the "I:oT;e Kulet* 

amendment, WRS adopted and thereafter, considerable 

legIslatIon ~08 enacted by the l.egislat.ure from time 

to time, under authority of such emendmmt, vhlch leglslation I8 Eet forth In Ckppter 13 of Title 28 of the 

~Zcvlsed Civil statutes. The city of Gelverton hao 

never re-enacted or re-adopted Its charter as a whole 

under the *lIome rule* law8, nor has It ever z-c-adopted 

or se-enacted .Sectlon 62 .-r its charter thereunder. 

Judqe Yattlmore, In the ease of Cone vs. State, 

236 W 486, used the tollowinr: lan::uaEe: 

l'on ?Tay St, 1939, by populnr vote, f:eCtion 20, Article 16, of our State Constitution, 

ws amended, i:n1 the yroclemation of' the :'overnor 

putt inz EZK;(: into effect war of dcte July 3, 

1919. By the tei%s of said amendment former 

aectlon 20 wee struck out of t.he Conztltution 

and relzenled. Said sectlcn vza the one which 

gave the legislature paver to enact law submIttInS to th6 people of a Flven territory for 

their detornlnetion the vestion e8 to the sale 

~-r~~l.~~~~~...intoricatI~ liquor vithln 8UCtA 

territc-ry. Y'be repeal of seld Sectinn 20 

necessarily carried with it the reTeel of all 

law deFendin fw their validity won the exerEIse of the power conferred by Bald section. 

\;hen amended section 20 became effective, the 

former section 20 died, and v:ith it elso diod 

Its descendants and dependents, e::cept insofar 

as the savin: clause of said amendnd section 20 

kept the provisions of such laws alive for the 

purpose of prosecuting offenses committed thereunder prior to the adoption of the amendment.v 

Also the cases of Sparks vs. St&e, 230 SY; 649 

and.~.IllIam~ vs. State, 23S SK.640 are to the 8ame effect, 

holding that whercln conviction fpr posi3ession of equipment 
!.!r. Bert Ford, Yay 15, 1939, Page 9 

for the nanufoc~ure of intoxic+ng _ . . . _ _ llqucr, unlawful 

unaer statutes in exiutence prior to the odc~tion of 

the constitution61 amendment in 1919 were reversed 

by a holdin; thnt, such statute hr:d boon repealed by 

such amendment. 

?:.e do not thir& thct it can be ccntended that 

an ect of the Legislature amending; the chbrtcr cf a 

municipal oorporetlon has aAny treater force or dignity 

or Is entitled to any further effectiveness'tb~n a 

general act of the Iegfslaturs covorin3 6-nd applyfng 

to the entire state. If such tot or statute xas repealed by the above set forth constitutional amendment 5' 

of 1919, as is held by the cbsen above cited, then the 

ronner~must also ran. 

.Tustice Dey of the SuIx'eme Court of the United : 

States, in the ease of United States vs. Iuginovioh, 

41 Dup. Ct. rep. 551, holdlrg certain provisions of preexistin? lfquor laws of the Unitad Stated, r6pcoled by 

the 16th emendrent., snd the acts of ConrJress rassed prsuant thereto, says in port es follows: 

w1t is, cl" course, Settled that repeals by implication ere not favored. It 

is equally well settled that a latter statube reI?e?ls fomzer ones when clearly inconsistent with the ecrlier enactments.q 

Ke think thct Eectlnn 62 of the Charter of the 

city or ~Glveston as rtbove quoted is clearly inconsistent. 

and in conflict with the amendments of the ~onctitution 

of the St&t8 of T6xc.s adosted in 1919. 

"he fremers of the prohibition ~enOc.ent to the 

conttltution edc~ted in 1919, evidently realized end believed thct such emendment vould have the eifect of tie-. 

diat8ly re;?c&ling end nullifying: pre-8i:iSting p~rohibitory, 

.regulatory and penal laws on the subject of liquor, because they felt it necoesnry to and did incorporate into 

such amendment its own penal provisions and a3 xi11 be 

s:en from the cases before oited, this vieu- of the amendment wes also t&en by our Court of Criminal &peals, when 

the matter finclly came before them for decision. 
Mr. Bert Ford, Pay l5, 1939, Page PO 

After the adoption or the amendment __ - br 193. 

and pursuant to the authority Oontalned in Ssctlon jb] 

'thereof, the Leqlsbture haa re-emoted new looal option 

laws whioh hi.ve been noted Upon b: various oountles, 

justicels precincts and incorporated towns and olties 

In the stote, but no such aotion under the authority 

of said saction or any le&islation passed thereunder has 

b89n taken by the city cf Galveston or in CIlveston County. 

It can be seed that this Section does not 

authorizethe pessaye of any statute grantin to corporated titles the power to zone themsalves for t %" e:aale 

of liquor, but ninoe said secti.-n and the law8 passed 

thereuuder do not prohibit cities from doing so, aities 

under the Vom !:ule" amendment have the inherent power, 

in accordance with the regulations laid down In suoh 

"Home Wle" law, to so zone themelves, but they only 

heve such power as a result of the "Bome Eu&e* amendment 

end to be exercised in accordance therewiLh snd this has 

never been done in the city of Galveston, end is in no 

sense true of Cectlon 62 of the charter. 

fn the cases of Pitre VE. Raker,,,111 ijX (Znd). 

360, and Trltico et al VS. Texas f.iquor e.:ntrol hoard, 

recently decided by the Eeauniont Court of Civil Appeals 

on Perch le, 1939,an attack<.was being made upon the 

charter amendment of the olty of Port Cxthur adopted 

Xovembar 4, 1936, pursuanbe to and in full compliance 

eith the "home RulcW statute or the state of Texas, which 

said amendment defines certain areas in the city or Port 

Arthur where intoxicetiw liquor could end could not be 

sold lnaacoordance with the state laws upon the general 

subJect of such business. 

These cases hold thet the poryer to regulate the 

sale of lntoricatirq liquors to the extent that it is 

1aMul under the state laws is inherent in "!iome Rule" 

cities unltss d8fIiRd them by the conetitutian and general 

laws or the stete, and that such rs~letlon Is valid unless 

In confliot with such goneral laws or the Gonstltution, 

end it having been conceded that such charter amendment 

in Port Arthur was adopted in compliance with the ?%me 

Rulea law, the only ocncern of the court via8 to determine 

whether or not such parer was denfed such city by the 
. 

Yr. Pert Ford, ?,'aay 15, 1939, Page 11 

present s8Ction 20, Article 16 of the Constitution or 

the liquor Control Act passed pursuant thereto, end 

whether such cherter emndmnt was in conflict with 

the Stat8 laws on the eubject. Doth of these questions 

wr8 answered In the negative, 

You are respecttully advised that it Is the 

opinion of this departc:ent that 2ection 20, Article 16 

of the Constitution as amended In 1919 has the errect 

Cc ropeollng ell existing legislation whether it be in 

the forr: of loco1 option statutes or charter arsendnent 

statutes, that upon the adoption or this mendr,ent on 

&!ey 24, 1919 , .Ssotion 62 of the city of C7alveston becme seP8al8d and 0r no further rorce or efrect. 

Trustin5 that the fOr8gOinq answers ycur inquiry, we remainad811 'i;illil3XES 

im3istant