ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Sid Miller Chair, Committee on Homeland Security and Public Safety Texas House ofRepresentatives 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 whichthe sale ofalcoholicbeveragesfor 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-footzone around a school in which the sale ofalcoholic beverages for off-premises consumption wouldbeprohibited. I Weunderstand that your question concerns a public school located in a general-law municipality with a population ofless 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 'tof 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 ofalcoholic beverages in this state"); see also DallasMerchant's & Concessionaire'sAss'n v. City of Dallas, 852 S.W.2d 489,490 (Tex. 1993) (holding that "[s]ection 109.57 clearly preempts an ordinanceofa ...citythat regulates where alcoholicbeverages are soldundermostcircumstances"). Forexample, in section 1 09.33(a) ofthe 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

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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 ofbusiness is within: (1) 300 feet ofa church, public orprivate school, or public hospital; (2) 1,000feet ofapublic school, ifthe commissionerscourt or the governing body receives a request from the board of trustees ofa school district under Section 38.007, Education Code; or (3) 1,000feet ofaprivateschool ifthecommissionerscourt or the governing body receives a request from the governing body ofthe private school. TEX. ALCO. BEV. CODEANN. § 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 ofbusiness is within 300 feet ofa 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 ofa public school, provided it "receives a request from the board oftrustees ofa school district under Section 38.007, Education Code." Id. § 109.33(a)(2). Section 38.007 oftheEducation Code is entitled "Alcohol-FreeSchoolZones." TEX. EDUC. CODE ANN. § 38.007 (West 2006). Itprovides 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 enforcementofficials andtheTexasAlcoholicBeverageCommission in attempting to provide this environment and in enforcing Sections
2Correspondence attached to your request letter inquires about the applicability ofan 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 ofany specific details about the stores, we note the potential applicability ofsection 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 ofpremises established in this code and any other law or ordinance ofthe state or apolitical subdivision ofthe state in effect at thattime, the premises shall be deemed to satisfy the distance requirements for all subsequent renewals ofthe license or permit. TEX. ALeO. BEV. CODE ANN. § 109.S9(a) (West 2007).The Honorable Sid Miller

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101.75,109.33, and 109.59, AlcoholicBeverageCode. Additionally, the board, 

### ifa majority ofthe area ofa district is located in a municipality with apopulation of900,000 ormore, may petition the commissioners court ofthe 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 thatprohibits the sale ofalcoholic beverages by a dealer whose place ofbusiness 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 ofalcohol within 1,000feet ofapublic 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.

3 0 ne ofthe referenced statutes, section 101.75 ofthe Alcoholic Beverage Code, makes it a criminal offense to possess an open container orconsume "an alcoholic beverage on a public street, public alley, orpublic sidewalk within 1,000feet of
... apublic orprivate school." TEx. ALeo.BEV
.CODEANN. § 101
.75(a) (West2007); seealso TEx. EDUC. CODE ANN. § 38.007(b) (West 2006).The Honorable Sid Miller

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### 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 ofbusiness 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 of900,000 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