Jam&y 13. 1987 

Honorable Al Luna 

Chairman 

Committee on Science & Technology 

Texas Eouse of Representatives 

P. 0. Box 2910 

Austin, Texas 70769 

opinion go. Jh-619 

Re: Whether a municipality may 

adopt an ordinance prohibiting 

the consumption of alcoholic 

beverages by persons operating 

motor vehicles 

Dear Representative Luua: 

You ask whether a home rule city may adopt an ordinance prohibiting the consumption of alcoholic beverages~ by parsons operating 

motor vehicles. Specifically, you ask whether such an ordinance would 

be preempted by the Texas Alcoholic Beverage Code, by The Uniform Act 

Regulating Traffic on Highways, article 6701d. V.T.C.S., or by any 

other Texas law. . 

A municiual ordinance may not conflict with state legislation. 

City of Brookside Village v. 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 expressly prohibited, if 

the legislature intended state law to exclusively occupy that field, 

or if the city regulation conflicts with state law even if state law 

is not intended to occupy that field. See generally Attorney General 

Opinions JM-226 (1984); H-1071 (1977). The state's entry into a field 

of legislation does not automatically preempt that field from 

municipal regulation. City of Brookside Village v. Comeau. 633 S.W.2d 

at 796. Additionally, because a home rule city's powers derive 

directly from article XI, section 5. of the Texas 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 Sweetwater v. Geron. 

380 S.W.2d 550, 552 (Tex. 1964). Whether the Alcoholic Beverage Code 

preempts the proposed ordinance must be considered in light of these 

general rules. 

Texas case law indicates that the Alcoholic Beverage Code does 

not automatically preempt all municipal ordinances which regulate 

alcoholic beverages. 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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Honorable Al Luna - Page 2 (JM-619) 

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 close at a certain hour. 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 does not provide a cohesive rationale. 

Moreover, as indicated above, the Texas Supreme Court consistently 

holds that it is necessary to look to the constitution and 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 Gois v. State, 190 S.W. 724 (Tex. Grim. App. 1916). 

Accordingly. preemption of the proposed ordinance depends upon the 

scope of the fields regulated under various provisions of the code. 

Section 1.06 of the Alcoholic Beverage Code provides: 

Unless otherwise specifically provided by 

the terms of this code, the manufacture, sale. 

distribution, transportation, and possession of 

alcoholic beverages shall be governed exclusively 

by the provisions of this code. (Emphasis added). 

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 the areas covered by 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 alcoholic beverage, one must possess the beverage. See 

Alto. Bev. Code $105.06 (consumption 05 possession is an offense un= 

certain circumstances); see also Attorney General Opinion JM-112. 

Similarly, because the proposed ordinance addresses consumption while 

operating a motor vehicle, it would also constitute a regulation of 

the transportation of alcoholic beverages. 

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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Honorable Al Luna - Page 3 (JM-619) 

reasoning may be described most charitably as disingenuous. It 

ignores the fact that to consume au alcoholic beverage, one must 

possess the beverage. Under a criminal law analysis, possession could 

conceivably be deemed a lesser included offense of consumption. Under 

Texas law, consumption alone is less culpable than possession and may 

be merely evidence of possession or of driving while intoxicated. See 

Parr v. State, 575 S.W.2d 522, 526 (Tex. Crlm. App. 1978) (consumpt= 

of intoxicating liquor not a crime). Moreover, viewing consumption as 

a separate criminal offense from possession does not separate 

consumption as a separate field of regulation under a preemption law 

analysis of section 1.06 of the Alcoholic Beverage Code or of the 

"driving while 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 Banknote Club, the court held that the Alcoholic Beverage 

Code's permit provisions preempt only the regulation of 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 permittee might engage on the 

same premises. Id. In contrast, the proposed ordinance regulates in 

a field which isnot separate from the field regulated by 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-Jere Dairy, Inc. v. dity of Mt. Pleasant, 417 

S.W.2d 872 (Tex. Civ. App. - Texarkana 1967. writ ref'd n.r.e.). 

however, the court addressed a much 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 

frequency of delivery constituted a separate field 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 the more stringent municipal ordinance 

because it constituted "an entry into the field occupied exclusively 

by the state statutes and regulations" and therefore violated article 

XI. section 5. of the Texas Constitution. Id. The Texas Supreme 

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Eonorable Al Luna - Page 4 (JM-619) 

Court recently cited the'Jere Daiq case with approval. See City of 

Brookside Village v. 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 exclusively by 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 the Alcoholic Beverage Code, 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 conduct which is 

proscribed by the state's penal provisions); Parr v. State, 575 S.W.2d 

at 526 (act of consuming intoxicating liquor not 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 

beverages by persons operating motor vehicles. 

Jgy&% 

Attorney General of Texas 

JACKHIGETOWER 

First Assistant Attorney General 

WARYKELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

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