Jam&y 13. 1987

HonorableAl Luna Chairman Committeeon Science& Technology TexasEouse of Representatives P. 0. Box 2910 Austin,Texas 70769 opiniongo. Jh-619

Re: Whether amunicipalitymay adopt an ordinance prohibiting the consumption of alcoholic beverages by persons operating motor vehicles

Dear RepresentativeLuua:

You ask whether a home rule city may adopt an ordinance prohibiting the consumption of alcoholicbeverages~by parsons operating motorvehicles. Specifically,you ask whether such an ordinancewould be preemptedby the Texas AlcoholicBeverage Code, by The Uniform Act Regulating Traffic on Highways, article 6701d. V.T.C.S., or by any otherTexas law.

.

A municiual ordinance may not conflict with state legislation. City of BrooksideVillagev. Cbmeau, 633 S.W.2d 790, 796 (Tex. 1982). cert. denied, 459 U.S. 1087 (1982). A city is preempted from regulating in a field if the city's regulation is expresslyprohibited, if the legislature intended state law to exclusively occupy that field,
or if the city regulation conflictswith state law even if state law is not intended to occupy that field. See generallyAttorney General OpinionsJM-226 (1984);H-1071 (1977). The state's entry into a field of legislation does not automatically preempt that field from municipal regulation. City ofBrooksideVillagev. Comeau. 633 S.W.2d at 796. Additionally, because a home rule city's powers derive directly from articleXI, section 5. of theTexas Constitution,limits
on those powers must appear with unmistakable clarity. See Tex. Const. art. XI, 45; Lower Colorado River Authority v. CityTf San Marcos, 523 S.W.2d 641, 643 (Tex. 1975);City of Sweetwaterv. Geron. 380 S.W.2d 550, 552 (Tex. 1964).Whether the Alcoholic Beverage Code preempts the proposed ordinancemust be considered in light of these generalrules.

Texas case law indicates that the Alcoholic Beverage Code does not automatically preempt all municipal ordinances which regulate alcoholicbeverages. For exxple, in Pitre v. Baker, 111 S.W.2d 359 (Tex. Civ. App. - Beaumont 1937, writ dism'd), the court held that nothing in the Liquor Control Act (now recodified as the Alcoholic Beverage Code) took from a home rule city the power to restrict areas in which beer and liquor could be sold. A number of courts have

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followed Pitre. See, e.g., Young, Wilkinson 6 Roberts v. City of Abilene, 704 S.W.2d 380, 383 (Tex.App. - Eastland 1985, writ ref'd n.r.e.) (and cases cited therein). In contrast, in Royer v. Ritter, 531 S.W.2d 448 (Tex.Civ. App. - Beaumont 1975,writ ref'd n.r.e.), a divided court struck down a city ordinance which prohibited package stores from operating on certain holidays and which required that package stores closeat a certainhour. The opinion of one justice in the case requires an affirmative grant of power to regulate alcoholic beverages. A concurring opinion and a dissenting opinion present different views. Because the three justice panel in Royer v. Ritter
was divided,however, the case doesnot provide a cohesive rationale. Moreover, as indicated above, the Texas Supreme Court consistently holds that it isnecessary to look to the constitutionand legislation not for grants of power to home rule cities but only for limits on their powers. See, e.g., Lower Colorado River Authority v. City of San Marcos, supra; Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948); see also Le Goisv. State, 190S.W. 724 (Tex.Grim.App. 1916). Accordingly. preemption of the proposed ordinance depends upon the scope of the fieldsregulatedundervarious provisionsof the code.

Section 1.06 of theAlcoholicBeverage Codeprovides:

Unless otherwise specifically provided by the terms of this code, the manufacture, sale. distribution, transportation, and possession of alcoholicbeverages shall be governed exclusively by theprovisions of this code. (Emphasisadded).

The language of this section is clear. In Attorney General Opinion JM-112 (1983). this office determined that section 1.06 prohibits a city or county from enacting an ordinance banning the possession of open containers of alcoholic beverages in motor vehicles. Nevertheless, the city of Houston submitted a brief in response to your request which recognizes the preemptive effect of section 1.06 but which alleges that the ordinance in question does not constitute regulation in theareas coveredby section 1.06.

The areas in section 1.06 of "possession" and "transportation"
are of particular importance to the instant case. An ordinance prohibiting the consumption of alcoholic beverages while operating a motor vehicle necessarily regulates possession to some degree because to consume an alcoholicbeverage, one must possess the beverage. See Alto. Bev. Code $105.06 (consumption05 possession is an offense un= certain circumstances); see also Attorney General Opinion JM-112. Similarly,because the proposed ordinance addresses consumptionwhile operating a motor vehicle, it would also constitute a regulation of the transportationof alcoholicbeverages.

It has been suggested, however, that the proposed ordinance regulates only the act of consuming alcohol while operating a motor vehicle. not the act of possessing an alcoholic beverage. This

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reasoning may be described most charitably as disingenuous. It ignores the fact that to consume au alcoholic beverage, one must possess thebeverage. Under a criminal law analysis,possession could conceivablybe deemed a lesser includedoffense of consumption. Under Texas law, consumptionalone is less culpable than possession andmay bemerely evidenceof possessionor of drivingwhile intoxicated. See Parrv. State, 575 S.W.2d 522, 526 (Tex.Crlm.App. 1978) (consumpt= of intoxicatingliquornot a crime). Moreover,viewing consumptionas a separate criminal offense from possession does not separate consumption as a separate field of regulationunder a preemption law analysis of section 1.06 of the Alcoholic Beverage Code or of the "drivingwhile intoxicated"statute,article 67011-l.V.T.C.S.
Thus, the case at hand is not like Banknote Club v. City of Dallas, 608 S.W.2d 716 (Tex. Civ. App. - Dallas 1980, writ ref'd n.r.e.1. In BanknoteClub, the courtheld that theAlcoholicBeverage Code'spermitprovisionspreempt only the regulationof establishments with regard to the sale of alcoholic beverages. Id. provisions do not p=pt ordinances The permit and fees relating to other occupations or activities in which the permitteemight engage on the
same premises. Id. In contrast, the proposed ordinance regulates in
a fieldwhich isnot separatefrom the field regulatedby section 1.06 of the code. It operates in the same field, but with more stringent proscriptions.

At one the in Texas' history, municipal regulation of milk elicited almost as much concern as the regulation of alcoholic beverages raises today; the legal history of the milk struggle is instructive. In City of Weslaco v. Melton. 308 S.W.2d 18, 21 (Tex. 1957). the Texas Supreme Court considered whether a state statute which fixed grades of milk preempted a municipal ordinance which prohibited the sale of raw milk. The court upheld the ordinance because it did not attempt to alter the grades of milk set by the state; it merely prohibited the sale of one grade. 308 S.W.2d et 19-20. This case stands for the proposition that more stringent municipal regulation may, in some instances, constitute a seoarate field of regulation. In-JereDairy, Inc.v. dity ofMt. Pleasant, 417 S.W.2d 872 (Tex. Civ. App. - Texarkana 1967. writ ref'd n.r.e.). however, the court addressed amuch closer case. The Jere Dairy case involved en ordinance requiring grade A milk deliveries three times per week. The city acknowledged that a state statute and regulations preempted the field of grading and labeling but asserted that frequencyof deliveryconstituteda separatefield of regulation. 417 S.W.2d at 873. The court noted that the city's delivery regulation indirectly attempted to add a quality of freshness to the state specifications for Grade A milk distributed in the city. 417 S.W.2d at 874. The court struck down themore stringentmunicipal ordinance because it constituted "an entry into the field occupied exclusively by the state statutes and regulations"and thereforeviolated article XI. section 5. of the Texas Constitution. Id. The Texas Supreme

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Court recently cited the'Jere Daiq case with approval. See City of BrooksideVillagev. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).

The instant case is analogous to the Jere Dairy case. As indicated, Houston's brief admits the preemptive effect of section 1.06 but asserts that consumption constitutes a separate field of regulation. The proposed ordinance attempts to effect the laudable goal of preventing accidents caused by the consumption of alcoholic beverages by operators of motor vehicles by prohibiting the consumption of 9 amount of alcoholic beverage. But in so doing, the ordinance enters a field regulated exclusivelyby section 1.06 of the Alcoholic Beverage Code. If this more stringent goal is to be effected, it must be effected through amendments to the state statutes. In light of this response to your question regarding the preemptive effect of theAlcoholicBeverageCode, it is unnecessary to address whether other Texas laws preempt the ordinance in question. See genarally V.T.C.S. art. 67011-l (prohibiting driving while intoxicated); cf. Knott v. State, 648 S.W.2d 20 (Tex.App. - Dallas 1983,no writ)(munlcipal ordinance cannot proscribe conductwhich is proscribedby the state'spenal provisions);Parrv. State, 575 S.W.2d at 526 (actof consuming intoxicatingliquornot proscribed).

SUMMARY
Section 1.06 of the Texas Alcoholic Beverage Code preempts an ordinance enacted by a home rule city which prohibits the consumption of alcoholic beveragesby persons operatingmotorvehicles.

Jgy&%
AttorneyGeneral ofTexas

JACKHIGETOWER FirstAssistantAttorney General

WARYKELLER Executive Assistant AttorneyGeneral

RICK GILPIN Chairman.Opinion Committee
Preparedby JenniferRiggs AssistantAttorneyGeneral

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