December 15, 1970 

Honorable Joe Resweber 

County Attorney 

Opinion No. M- 749 

Harris County Courthouse 

Houston, Texas 77002 Re: Is the University of 

Houston a "public school" 

within contemplation of 

Dear Mr. Resweber: Article 666-25a, V.P.C.? 

You recently requested the opinion of the Attorney 

General on the following question: 

"Is the University of Houston a 'public school' 

as that term is used in Article 666-25a, Vernon's 

Texas Penal Code." 

Article 666-25a, Vernon's Penal Code, reads as follows: 

"The Commissioners' Court of any county 

in the territory thereof outside incorporated cities and towns and the governing authorities of any city or town within the corporate limits of any such city 

or town may prohibit the sale of alcoholic 

beverages by any dealer where the place of 

business of any such dealer is within three 

hundred (300) feet of any church, public 

school or public hospital, the measurements 

to be along the property lines of the street 

fronts and from front door to front door 

and in direct line across intersections 

where they occur." [Emphasis Added.1 

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Honorable Joe Resweber, Page 2 (M-749 ) 

In the case of Ussery v. City of Laredo, 65 Tex. 406 

(18861, the Supreme Court of Texas based its decision UDOn 

the premise that public schools are only those which ark 

established in the manner provided by law and recognized 

as such by the proper authority. 

A "public school" or "public hospital" as used in the 

statute regulating the sale of alcoholic beverages is not 

defined in the Texas Liquor Control Act. The Act (Article 

661-1, etc., Vernon's Penal Code) was enacted in the exercise of the police power of the state. Jones v. Marsh, 

148 Tex. 362, 224 S.W.Zd 198 (1949). It"musteliberally construed to accomplish the expressed and implied intent 

of the legislature." Liquor Control Board v. Super Savings 

Stamp Co., 303 S.W.2d 536 (Tex.Civ.App. 1957, error ref., 

n.t.e.). 

In accordance with the well-settled canons of statutory construction, we must presume that the words employed 

are to be given that meaning which would ordinarily be 

understood from the context, subject matter, and intent 

of the Legislature. While the term "public hospital" is 

not a word of common usage defined in the dictionary, the 

term "public school" is there defined generally as a 

school that is tax-supported or established and maintained 

at public expense. It is one generally open and public 

to all in the locality. This is in harmony with the meaning of the term as found by the courts generally, as distinguished from a private, parochial, sectarian, or denominational school. See 78 CJS 606-607, Schools and 

School Districts, Sec. 1. Whether a school is to be 

deemed oublic or wrivate or denominational is to be determined b$ its cont;ol. See State ex rel Johnson v. Boyd, 

217 Ind. 348, 28 N.E.2d 256 (1940); Gerhardt v. Heid, 

66 N.D. 444, 267 N.W. 127 (1936). 

It has been held that a private trade school operating for profit was not a "public school" within the meaning of Article 666-25a. Maple Lawn Baptist Church v. 

Lawrence, 442 S.W.2d 910 (Tex.Civ.App., 1969, error ref., 

n.r.e.) The statute has also been construed to apply to 

a public school librarv buildinq but not to a depot or 

stadium used by the high school-students. Rodgers v. Texas 

Liquor Control Board, 449 S.W.2d 292 (Tex.Civ.App., 1970, 

no writ). However, it should be here noted that Article 

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Honorable Joe Resweber, Page 3 (M- 749 ) 

4.22 of the Texas Education Code, prohibits "the possession 

of any intoxicating beverage while entering or inside any 

enclosure, field, or stadium where athletic events sponsored 

or participated in by the public schools of this state are 

being held. . ." 

It is noted that the Texas Education Code is made 

generally applicable "to all educational institutions 

supported either wholly or in part by state tax funds 

unless specifically excluded." Article 1.04, Texas 

Education Code. Its purpose was "to bring together in 

a unified and organized form the existing law relating 

to tax-supported educational institutions and to simplify , clarify, and harmonize existing law relating 

both to the public school system and to the statesupported institutions of higher education." Article 

1.03, Texas Education Code. It is evident from the 

use of the term "public school" as used throughout 

the Code that it is meant to include tax-supported 

educational institutions, which are not necessarily 

confined to elementary and secondary education but to 

higher state-supported institutions as well. Furtherniore, we observe that a "public school" was defined in 

a recent statute, Article 2922-1.02 (a) (2), concerning 

the establishment of the Teachers' Retirement System: 

"'public school' means any educational institution or organization in 'this state which under 

the laws of Texas is entitled to be supported 

whollv or wartlv bv state, county, school district.; or - other - municipal-corporation - funds;. . ." 

We are advised and supported in our view by the Alcoholic Beverage Commission, which is charged with the 

administration and enforcement of the Liquor Control 

Act that their departmental construction of the term 

"public school," as used in Article 666-25a, has been 

regarded as meaning any educational institution which 

is either wholly or in part supported by state or local 

governmental funds. The courts will ordinarily follow 

a construction placed on a statute by the department 

charged with its administration or enforcement where the 

statute is uncertain and if the construction is reasonable. 

53 Tex.Jur.2d 259, Statutes, Sec. 177; State v. Harris, 

342 S.W.2d 177 (Tex.Civ.App., 1960, no writ). 

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Honorable Joe Resweber, Page 4 (M- 749 ) 

The University of Houston was established as a stateowned educational institution, which is supported by state 

tax funds. See Article 2615g. Vernon's Civil Statutes. As 

such, it would constitute a "public school" within the meaning of Article 666-25a. In Xavier University v. Thigpen, 

151 So.2d 550. 553 (La.Cir.Ct.. 1963). the court had before 

it a somewhat similar question.involving whether a University might be included within the term "school" as used 

in the liquor control ordinance. The court apparently 

found no difficulty in holding that the ordinance included 

universities or colleges as schools. 

It is to be observed that the Legislature failed to 

except from the term "public school" any public schools 

of higher education. In construing a statute it is not 

ordinarily permissible to imply an exception, and exceptions may not be engrafted on a statute by implication 

merely because there may seem to be a reason for doing 

so. 43 Tex.Jur.2d 209, Statutes, Sec. 144. 

As stated in Clark v. Liquor Control Board, 357 S.W.2d 

176, 178 (Tex.Civ.App., 1962, no writ), the question of 

seliing beer to be consumed at a prohibited location under 

the terms of the act is ultimately a "political" one for 

the voters and the Legislature, and it is not within the 

province of the court to substitute its judgment therefor. 

The Legislature intended the Liquor Control Act as an 

exercise of the police power of the state to protect the 

health, welfare, peace and temperance of its people and 

all its provisions are to be liberally construed for the 

accomplishment of that purpose. Munoz v. City of San 

Antonio, 318 S.W.Zd 741 (Tex.Civ.App, 1958, error dism. 

w.; Texas Liquor Control Board v. Super Savings 

Stamp Co., 303 S.W.2d 536 (Tex.Civ.App., 1957, ref. n-r-e-). 

One of the primary objects sought to be obtained by the 

Legislature in the Liquor Control Act is the,prohibition of 

the sale of alcohol and beer to minors and in any way allowing the presence of alcohol in the State of Texas to have 

a detrimental effect upon the welfare of minors. It is 

common knowledge that many minors as well as adults attend 

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Honorable Joe Resweber, Page 5 (M- 749 1 

our colleges and universities. 

In view of the primary object of the Liquor Control 

Act, and considering the consequences of a contrary construction, it is reasonable to conclude that the Legislature intended the words "public schools" to encompass all 

public schools, of all educational levels; therefore, it 

is our opinion that the University of Houston is a "public 

school" within contemplation of Article 666-25a. If tax 

supported universities and colleges are not to be deemed 

"public schools" as herein considered, the Texas Legislature is the proper body to make such a provision. 

SUMMARY 

The University of Houston is a "public school" 

within contemplation of Article 666-25a, Vernon's 

Penal Code. 

General of Texas 

Prepared by Guy C. Fisher 

Assistant Attorney General. 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Glenn Brown 

Linward Shivers 

James McCoy 

Robert Flowers 

Bob Lattimore 

MEADE F. GRIFFIN 

Staff Legal Assistant 

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