ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Sid Miller 

Chair, Committee on Homeland Security 

and Public Safety 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Miller: 

May 30, 2012 

Opinion No. GA-0942 

Re: Authority of a Type A general-law municipality 

with a population of less than 900,000 to enact an 

ordinance setting either a 300-foot "Alcohol-Free 

School Zone" or a 1,000-foot zone around a school in 

which the sale of alcoholic beverages for off-premises 

consumption would be prohibited (RQ-I028-GA) 

You ask about the authority of a Type A general-law municipality to enact an ordinance 

setting either a 300-foot "Alcohol-Free School Zone" or a 1 ,OOO-foot zone around a school in which 

the sale of alcoholic beverages for off-premises consumption would be prohibited. I We understand 

that your question concerns a public school located in a general-law municipality with a population 

of less than 900,000. See Attachment to Request Letter. 

General-law municipalities are political subdivisions created by the State and, as such, 

possess only those powers that the State expressly confers upon them. See Tex. Dep 't of Transp. v. 

City of Sunset Valley, 146 S.W.3d 637,645 (Tex. 2004). Moreover, a municipality does not have 

the authority to regulate the sale of alcoholic beverages except as permitted by the Alcoholic 

Beverage Code. See TEX. ALCO. BEV. CODE ANN. § 109.57(a)-(b) (West SUpp. 2011) (stating that 

the Legislature intends that the Alcoholic Beverage Code "shall exclusively govern the regulation 

of alcoholic beverages in this state"); see also Dallas Merchant's & Concessionaire's Ass'n v. City 

of Dallas, 852 S.W.2d 489,490 (Tex. 1993) (holding that "[s]ection 109.57 clearly preempts an 

ordinance of a ... city that regulates where alcoholic beverages are sold under most circumstances"). 

For example, in section 1 09.33(a) of the Alcoholic Beverage Code, the Legislature granted 

municipalities the authority to regulate the sale of alcoholic beverages under the following 

circumstances: 

ILetter from Honorable Sid Miller, Chair, Comm. on Homeland Security & Pub. Safety, to Honorable Greg 

Abbott, Tex. Att'y Gen. at 1 (Dec. 13, 2011), http://www,texasattorneygeneral.gov/opin ("Request Letter" and 

"Attachment"). 
The Honorable Sid Miller - Page 2 (GA-0942) 

the governing board of an incorporated city or town may enact 

regulations applicable in the city or town, prohibiting the sale of 

alcoholic beverages by a dealer whose place of business is within: 

(1) 300 feet of a church, public or pri vate school, or public 

hospital; 

(2) 1,000 feet of a public school, if the commissioners court 

or the governing body receives a request from the board of 

trustees of a school district under Section 38.007, Education 

Code; or 

(3) 1,000 feet of a private school if the commissioners court 

or the governing body receives a request from the governing 

body of the private school. 

TEX. ALCO. BEV. CODE ANN. § 109.33(a) (West 2007). Thus, subsection (a)(l) generally authorizes 

a municipal governing body to enact regulations prohibiting the sale of alcoholic beverages by a 

dealer whose place of business is within 300 feet of a public school. /d. § 109.33(a)(l).2 Further, 

under subsection (a)(2), a municipal governing body is generally authorized to prohibit such sales 

within 1,000 feet of a public school, provided it "receives a request from the board of trustees of a 

school district under Section 38.007, Education Code." Id. § 109.33(a)(2). 

Section 38.007 of the Education Code is entitled "Alcohol-Free School Zones." TEX. EDUC. 

CODE ANN. § 38.007 (West 2006). It provides in part: 

The board of trustees of a school district shall attempt to provide a 

safe alcohol-free environment to students coming to or going from 

school. The board of trustees may cooperate with local law 

enforcement officials and the Texas Alcoholic Beverage Commission 

in attempting to provide this environment and in enforcing Sections 

2Correspondence attached to your request letter inquires about the applicability of an ordinance establishing 

a 300-foot zone under section 109.33(a) to certain preexisting "stores." See Attachment to Request Letter. While we 

are not in possession of any specific details about the stores, we note the potential applicability of section 109.59(a) of 

the Texas Alcoholic Beverage Code, which provides: 

If at the time an original alcoholic beverage permit or license is granted for a 

premises the premises satisfies the requirements regarding distance from schools, 

churches, and other types of premises established in this code and any other law or 

ordinance of the state or a political subdivision of the state in effect at that time, the 

premises shall be deemed to satisfy the distance requirements for all subsequent 

renewals of the license or permit. 

TEX. ALeO. BEV. CODE ANN. § 109.S9(a) (West 2007). 
The Honorable Sid Miller - Page 3 (GA-0942) 

101.75,109.33, and 109.59, Alcoholic Beverage Code. Additionally, 

the board, if a majority of the area of a district is located in a 

municipality with a population of900,000 or more, may petition the 

commissioners court of the county in which the district is located or 

the governing board of an incorporated city or town in which the 

district is located to adopt a 1,000-foot zone under Section 109.33, 

Alcoholic Beverage Code. 

[d. § 38.007(b) (emphasis added).3 Section 38.007(b) of the Education Code thus grants the 

authority to petition the municipal governing board to adopt a 1,000-foot alcohol-free zone only to 

a board in a district located in a municipality with a population 900,000 or more. [d. The 

Legislature has not authorized a school board of a district in a municipality of less than 900,000 

persons to petition for an ordinance that prohibits the sale of alcoholic beverages by a dealer whose 

place of business is within 1,000 feet of a public school. The governing board of a municipality 

lacks authority under section 109.33 of the Alcoholic Beverage Code to enact an ordinance 

prohibiting sales of alcohol within 1,000 feet of a public school unless it receives a petition to enact 

such an ordinance from a school district that is principally located in a municipality of 900,000 

persons or more. 

30 ne of the referenced statutes, section 101.75 of the Alcoholic Beverage Code, makes it a criminal offense to 

possess an open container or consume "an alcoholic beverage on a public street, public alley, or public sidewalk within 

1,000 feet of ... a public or private school." TEx. ALeo. BEV. CODE ANN. § 101 .75(a) (West 2007); see also TEx. EDUC. 

CODE ANN. § 38.007(b) (West 2006). 
The Honorable Sid Miller - Page 4 (GA-0942) 

SUMMARY 

The governing body of Type A general-law municipality is 

generally authorized to enact an ordinance prohibiting the sale of 

alcoholic beverages by a dealer whose place of business is within 

300 feet of a public school. The Legislature has not authorized a 

municipality to enact an ordinance prohibiting the sale of alcoholic 

beverages by a dealer whose place of business is within 1,000 feet of 

a public school unless the municipality receives a petition to enact 

such an ordinance from a school district that is principally located in 

a municipality of 900,000 persons or more. 

DANIEL T. HODGE 

First Assistant Attorney General 

JAMES D. BLACKLOCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

William A. Hill 

Very truly yours, 

Assistant Attorney General, Opinion Committee