HonorableWilliam 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 requestedan bpinion of this office concerning the validityof the followingordinance adopted by the City of MineralWells making it unlawful to sell beer or any alcoholicbeverage on Sunday In the city limits of MineralWells, Texas.

The pertinentparts of the ordinanceare as follows: “4. It shall be unlawful for any

person to directly or indirectlysell, 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 alcoholicbeverage,by retail for consumptionon 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 violatingany provision of this Ordinance shall be guilty of a misdemeanor,

and upon conviction shall be punishedby a fine of not less than $25.00, and not more tha.n $200.00, and each day of such violation shall constitutea separate offense." The authorityof cities to regulate the sale of beer is found In Article 667-10 l/2, Vernon's Penal Code. -3623-- .

HonorableWilllam D. Pratt, Page 2 (C-754)

The pertinentpart of such statute Is as follows:

"All Incorporatedcities 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 closinghours 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 distinguishbetween retailers sellingbeer for consumption bn the premises where sold and those retailers, manufacturersor distributors selling not for consumptionon the premises where sold, and to provide for separate and distinctregulations.Nothing herein shall authorizeany incorporated city or town to extend by ordinanceor 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 particulararea. 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 punishmentprescribedby State law for sellingbeer within the prohibited hours Is a fine of not less than $100.00 and not more than $l,OOO.OO,or by Imprisonmentin 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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HonorableWilliam D. Pratt, Page 3 (c-754)

A city ordinance that prescribes a differentand lesser nunlshmentthan that fixed bJrthe State law for the same uniiwfulact Is void. 850 (Tex.CrIm.1949). Ex part; Wataon;~225S.W.2d

The Court of Criminal Appeals, In Young v. State, 267 S.W.2d 423 (Tex.Crlm.195&), declareda city ordinance of the City of McGregor, which was very similar to the ordinancebefore us, void because It attempted .to provide a lesser punishmentthan providedby State law for selling beer on Sunday between the hours of 1:00 o'clockA.M. and 1~00 o'clock P.M. and on Monday prior to 7~00 o'clockA.M. The Court recognizedthe right and authorityof the City to prohibitby ordinance the sale of beer on Sunday from 1:00 o'clock P.M. to midnight on Sunday,but struck down the entire ordinancebecause it includedhours on Sunday and Monday that were prohibitedby State law with a greater penalty than provided in the ordinance.

The Young case, supra, Is squarelyiti point with the questionbefore us, and therefore the MineralWells Ordinance submittedto us is void for the reasons set forth in such case. SUMMARY

A city ordinance that prescribes a differentand lesser punishmentfor sellingbeer during prohibited hours than that fixed by Article 667-10, V. P.C., for the same unlawfulact is void.

Yours very truly,
WAGGONER CARR Attorney General of Texas
By: AssistantAttorneyGeneral DIiC/br
APPROVED:
OPINION COMMITTJ3E

-3625Honorable 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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