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 theAttorney General on the following question:
"Is the University of Houston a 'public school' as that term is used inArticle 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 theplace of business of any such dealer iswithin three hundred (300) feet of any church, public school orpublic hospital, themeasurements tobe along theproperty lines of the street fronts and from front door to front door and in direct line across intersections where they occur." [EmphasisAdded.1

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In the case of Ussery v. City of Laredo, 65Tex. 406 (18861,the Supreme Court of Texas based its decision UDOn thepremise that public schools are only those which ark established in themanner provided by law and recognized as suchby theproper authority.
A "public school" or "public hospital" as used in the statute regulating the sale of alcoholic beverages isnot defined in the Texas Liquor Control Act. TheAct (Article 661-1, etc., Vernon's Penal Code) was enacted in the exercise of thepolice power of the state. Jones v.Marsh, 148Tex. 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 thewell-settled canons of statutory construction, we must presume that thewords employed are tobe 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 aword of common usage defined in the dictionary, the term "public school" is there defined generally as a school that is tax-supported or established andmaintained atpublic expense. It is one generally open andpublic to all in the locality. This is inharmony with themeaning of the term as found by the courts generally, asdistinguished from aprivate, parochial, sectarian, or denominational school. See 78 CJS 606-607, Schools and School Districts, Sec. 1. Whether a school is tobe deemed oublic or wrivate or denominational is tobe determined b$ its cont;ol. See State ex rel Johnson v. Boyd, 217 Ind. 348, 28N.E.2d 256 (1940);Gerhardt v. Heid, 66N.D. 444, 267N.W. 127 (1936).
Ithas been held that aprivate trade school operating forprofit was not a "public school" within themeaning ofArticle 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 apublic school librarv buildinq but not to adepot or stadium used by thehigh school-students. Rodgers v. Texas Liquor Control Board, 449 S.W.2d 292 (Tex.Civ.App., 1970, nowrit). However, it should behere noted that Article

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4.22 of the Texas Education Code, prohibits "thepossession of any intoxicating beverage while entering or inside any enclosure, field, or stadium where athletic events sponsored or participated inby thepublic schools of this state are being held.

. ."
It isnoted that the Texas Education Code ismade generally applicable "to all educational institutions supported either wholly or inpart by state tax funds unless specifically excluded." Article 1.04, Texas Education Code. Its purpose was "tobring together in aunified and organized form the existing law relating to tax-supported educational institutions and to simplify,clarify, and harmonize existing law relating both to thepublic school system and to the statesupported institutions ofhigher education." Article 1.03, Texas Education Code. It isevident from the use of the term "public school" asused throughout the Code that it ismeant to include tax-supported educational institutions, which are not necessarily confined to elementary and secondary education but to higher state-supported institutions aswell. 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 'thisstate which under the laws of Texas is entitled tobe supported whollv orwartlv bv state, county, school district.; - - -

or other municipal-corporation funds;.

. ."
We are advised and supported in our view by theAlcoholic 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 asmeaning any educational institution which is either wholly or inpart 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 isuncertain and if the construction is reasonable. 53Tex.Jur.2d 259, Statutes, Sec. 177; State v. Harris, 342 S.W.2d 177 (Tex.Civ.App., 1960, nowrit).

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The University of Houston was established as a stateowned educational institution, which is supported by state tax funds. SeeArticle 2615g. Vernon's Civil Statutes. As such, itwould constitute a "public school" within themeaning ofArticle 666-25a. InXavier University v. Thigpen, 151So.2d 550. 553 (La.Cir.Ct.. 1963). the court had before it a somewhat similar question.involving whether aUniversitymight be included within the term "school" as used in the liquor control ordinance. The court apparently found no difficulty inholding that the ordinance included universities or colleges as schools.
It is tobe observed that the Legislature failed to except from the term "public school" any public schools of higher education. In construing a statute it isnot ordinarily permissible to imply an exception, and exceptions may not be engrafted on a statute by implication merely because theremay seem tobe a reason for doing so. 43Tex.Jur.2d 209, Statutes, Sec. 144.
As stated in Clark v. Liquor Control Board, 357 S.W.2d 176, 178 (Tex.Civ.App., 1962, nowrit), the question of seliing beer tobe consumed at aprohibited location under the **terms** of the act isultimately a "political" one for the voters and the Legislature, and it isnotwithin the province of the court to substitute its judgment therefor. The Legislature intended the Liquor Control Act as an exercise of thepolice power of the state toprotect the health, welfare, peace and temperance of itspeople and all itsprovisions are tobe liberally construed for the accomplishment of thatpurpose. 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 tobe obtained by the Legislature in the Liquor Control Act is the,prohibition of the sale of alcohol andbeer tominors and in anyway allowing thepresence of alcohol in the State of Texas tohave adetrimental effect upon thewelfare ofminors. It is common knowledge that many minors aswell as adults attend

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our colleges and universities.
Inview of theprimary object of the Liquor Control Act, and considering the consequences of a contrary construction, it is reasonable to conclude that the Legislature intended thewords "public schools" to encompass all public schools, of all educational levels; therefore, it isour opinion that theUniversity of Houston is a "public school" within contemplation ofArticle 666-25a. If tax supported universities and colleges are not tobe deemed "public schools" asherein considered, the Texas Legislature is theproper body tomake such aprovision.
SUMMARY The University of Houston is a "public school" within contemplation ofArticle 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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