Honorable William D. Pratt Opinion No. C-754 

County Attorney 

Palo Pinto County Re: Validity of Ordinance 

Mineral Wells, Texas of the City of Mineral 

Wells which makes it 

unlawful to sell alcoholic beverages on 

Sunday in the city 

Dear Mr. Pratt: limits. 

You recently requested an bpinion of this office concerning the validity of the following ordinance 

adopted by the City of Mineral Wells making it unlawful 

to sell beer or any alcoholic beverage on Sunday In the 

city limits of Mineral Wells, Texas. 

The pertinent parts of the ordinance are as 

follows: 

“4. It shall be unlawful for any 

person to directly or indirectly sell, 

offer for sale, barter, offer to barter, 

exchange, or offer to exchange, give, or 

offer to give, deliver, or offer to deliver, serve, or offer to serve, beer 

or any alcoholic beverage, by retail 

for consumption on or off the premises, 

within the corporate limits of the City 

of Mineral Wells, in Palo Pinto County, 

Texas, between the hours of 1:00 A.M. 

of any Sunday and 7~00 A.M. of the following Monday morning. 

“5. Any person violating any provision of this Ordinance shall be guilty 

of a misdemeanor, and upon conviction 

shall be punished by a fine of not less 

than $25.00, and not more tha.n $200.00, 

and each day of such violation shall 

constitute a separate offense." 

The authority of cities to regulate the sale of 

beer is found In Article 667-10 l/2, Vernon's Penal Code. 

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Honorable Willlam D. Pratt, Page 2 (C-754) 

The pertinent part of such statute Is as follows: 

"All Incorporated cities and towns 

are hereby authorized to regulate the 

sale of beer within the corporate llmits of such cities and towns by charter 

amendment or ordinance, and may thereby 

prescribe the opening and closing hours 

for such sales; such cities and towns 

may also designate certain zones in the 

residential section or sections of said 

cities and towns where such regulations 

for opening and closing hours for the 

sale of beer sha,ll be observed or where 

such sales may be prohibited. All incorporated cities and towns and all Commissioners Courts when acting under authority of this section are hereby authorized In adopting charter amendments, 

ordinances, or orders to distinguish between retailers selling beer for consumption bn the premises where sold and those 

retailers, manufacturers or distributors 

selling not for consumption on the premises where sold, and to provide for 

separate and distinct regulations. Nothing herein shall authorize any incorporated 

city or town to extend by ordinance or 

charter the hours of sale as fixed by the 

state law." 

The foregoing statute gives cities the authority 

to shorten the hours of sale of beer as fixed by State law. 

The statute f,urther gives cities the authority to prohibit 

the sale of beer in a particular area. Moore v. McCarver, 

240 S.W.2d ~443 (Tex.Clv.App. 1951). 

State law pr6hlblts the sale of beer on Sunday 

at any time between the hours of 1:00 o'clock A. M. and 

1:00 o’clock P.M., and on any day except Sunday at any time 

prior to 7:00 o'clock A.M. Article 667-10, V.P.C. The 

punishment prescribed by State law for selling beer within the prohibited hours Is a fine of not less than $100.00 

and not more than $l,OOO.OO, or by Imprisonment in the 

county jail for not more than one year, or by both such 

fine and Imprisonment. Article 667-26, V.P.C. 

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Honorable William D. Pratt, Page 3 (c-754) 

A city ordinance that prescribes a different and 

lesser nunlshment than that fixed bJr the State law for the 

same uniiwful act Is void. 

850 (Tex.CrIm. 1949). 

Ex part; Wataon;~225 S.W.2d 

The Court of Criminal Appeals, In Young v. State, 

267 S.W.2d 423 (Tex.Crlm. 195&), declared a city ordinance 

of the City of McGregor, which was very similar to the 

ordinance before us, void because It attempted .to provide 

a lesser punishment than provided by State law for selling 

beer on Sunday between the hours of 1:00 o'clock A.M. and 

1~00 o'clock P.M. and on Monday prior to 7~00 o'clock A.M. 

The Court recognized the right and authority of the City 

to prohibit by ordinance the sale of beer on Sunday from 

1:00 o'clock P.M. to midnight on Sunday, but struck down 

the entire ordinance because it included hours on Sunday 

and Monday that were prohibited by State law with a greater 

penalty than provided in the ordinance. 

The Young case, supra, Is squarely iti point with 

the question before us, and therefore the Mineral Wells 

Ordinance submitted to us is void for the reasons set forth 

in such case. 

SUMMARY 

A city ordinance that prescribes a 

different and lesser punishment for 

selling beer during prohibited hours 

than that fixed by Article 667-10, V. 

P.C., for the same unlawful act is void. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

By: 

Assistant Attorney General 

DIiC/br 

APPROVED: 

OPINION COMMITTJ3E 

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Honorable Wllllam D. Pratt, page 4 (C-754) 

W. 0. Shultz, Chairman 

tinny Zwiener 

Charlee Swanner 

Halcolm Qulak 

Pat Bailey 

APPROVEDFORTHEATTORNEY GENERAL 

By: T. B. Wright 

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