DAN MORALES

ATTORNEY GENERAL 

## QBffice

of tty 2Ittornep @eneral Qtate ofQLexa$ May 18, 1994

Mr. Doyne Bailey Opiion No. DA4493

. . Adnmammr Texas Alwholic Beverage Commission P.O. Box 13127 Auatin, Texas 78711-3127 Dear Mr. Bailey: Re: WhetheraholderofapemGttosell alwholic beverages may possess a harm for purposes of selfdefense (RQ-582)

You have requested an opinion construing the amendments to the Texas Alcoholic Beverage Code (the “code”), sections 61.71(f) and 11.61(e), passed during the Seventythird Session of the Legislature and e&uive September I, 1993, see Acts 1993, 73d Leg.. ch. 934. You spe4Sally ask the follow+g:

1. Whethesaholdaofaretaillicenseorpamitauthorizingthe sale and on- or off-premise consumption of alcoholic beverages may still possess atirearm ~&x the purpose of selfdefense in light ofthe new amendments, [sections] 61.71(f) and [] 11.61(e), [of the].

.Code.. , and not risk cancellation of his license or mt; 2. Whether a holder of a retail license or permit authorizing the sale and on- or off-premise consumption of alcoholic beverages may continue to sell fimarms in a building in which there is a lkxnsedpremises and notjeopardize his license or permit; and 2a. Whether a holder of a retail license or permit authorizing the sale and on- or off-premise consumption of the alcoholic beverages may continue to sell such alcoholic beverages when another entity sells firearms in an area separate from the leased premises but within the same building and not jeopardize its license or permit. The amendments about which you ask were passed to provide that [t]he commission or administrator shall cancel an original or renewal.

. permit if it is found, atIer notice and hearing, that the

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liwnsee knowingly allowed a person to possess a firearm in a building on the licensed premises. This subsection does not apply to aperson:(1) who holds a security officer wmmission issued by the Texas Board ofPrivate Investigators and Private Security Agencies, if (A) the person is engaged in the performance of the person’s duties as a security officer;

(B) the person iswearing adistinctive uniform; and (C) the weapon isinplain view; or (2) who is a peace officer. Alw. Bev. Code $8 11.61(e), 61.71@.1 In the text of your request letter, you state that prior to these particular amendments, the Penal Code sections 46.01 through 46.03 were controllmg.s These sections were also amended by the Seventy-third session of the Legislature. Section 46.02 addresses the act ofunlawtidly carrying aweapon and now states that:

(a) A person commits an offense ifhe intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. (b) It is a defense to prosecution under this section that the actor was, at the time ofthe commission ofthe offense:

. . (2) on his own premises or premises under his control unless he is an employee or agent of the owner of the premises and his primary responsibility isto act in the capacity of a security guard

IWenotethatwhilethereexistsaseparate citationforeachprovision, thetextoftheprovisions isidentical. 28cetion 46.01provides

chapter definitions

notrelevant

tothisdiscussion.

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to protect persons or property, in which event he must comply with Subdivision (5);s

. . . . (e) Except as provided by Subsection (f), an offense under this section is aClass A misdemeanor. (f) An offense under this section is a felony of the third degree if the offe-nse is wmmitted on any premises licensed or issued a permit by the state for the sale ofalcoholic beverages. Penal Code 546.02(a), (b)(Z), (e), (f) (footnote added). You have asserted that the recent amendments to the Alcoholic Beverage Code and the exceptions found inthe Penal Code are inirrewncilable wntlict. We disagree. The Alcoholic Beverage Code was created by an act which promulgated a formal revision of the Texas Liquor Control Act, repealing the Liquor Control Act as amended and making wnforming amendments to other laws. See Acts 1977, 65th Leg., ch. 194. Prior to this change, the Liquor Control Act was part of the penal laws of this state (Vernon’s Texas Penal Auxiliary Laws arts. 666-l to 667-33). Following the 1977 legislation, the two became separate and specific bodies of law, the Alcoholic Beverage Code and the Penal Code. The Alcoholic Beverage Code became the specitic body of law wncemed with “licensed premises” where alcoholic beverages are served for on- or offpremise consumption. Violation ofthe provisions ofthe code result in license revocation. Tbe Penal Code on the other hand, in this particular instance, is wncerned with addressing “a person who has control of the premises.” The two bodies of law address difkrent offenses with different penalties. In an effort to harmonize this seemingly apparent wntlict, we conclude that the provisions of the Alcoholic Beverage Code refer to 

### aperson olherthantheholderofthelicense,i.e.,another person. Furthermore, we have conducted a careful review of the legislative history of the amendments at issue. We are unable to find any evidence of legislative intent to prevent all owners from maintaining a firearm for their own protection. In the absence of

%bdivision (5)provides anexceptionforapersonwhois servingasasecurity guardcut&xl by the Texas Stale Board of PrivateInvestigatorsand Private SecurityAgencies under certain ckmutances. Itisinteresting tonotethatthelanguage

intheexception

isidentical

tethatwhichisused intheamendmentstotheAlcoholicBeverage Codesections11.61(e),61.71(f).

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legislative intent, we rely on the Code Construction Act. Located in the Government Code, section 312.005, it speciGcallyprovides:

In interpreting a statute, a wurt shall diligently attempt to ascutah legislative intent and shall consider at all times the old law, the evil, and the remedy. In this instance we must construe an amendment to a statute. Typically, when an entire new section has been introduced into a law by amendment, the new section must be wnstrued in light of preexisting law, as it stands atIer the amendment, and the new section, together with allunrepealed sections ofpreexisting law, should be considered as a hsumonious whole. Nelms v. Gulf Coast 

### Sme Bank, 525 S.W.2d 866 (T’ex. 1975); Analman 

### v.Pen& 161S.W.2d 455 (Tex. 1942). We now turn to your second inquiry in which you ask that we address the instance where aholder ofaretail license or permit authorizing the sale ofalcoholic beverages also sells 6rearms in a building in which there is a licensed premises or another entity sells tIrearms in an area 

### separateand apart from the licensed premises but within the same building. The circumstances which you describe require the consideration of numerous factual situations and the outcome may be dependent upon the wntractual relationships between the lessor and the lessee ofthe licensed premises. Such factual analysis isbeyond the purview ofthe opinion process. See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973). Furthermore, it is not a general practice of ~thisoffice to wnstrue contracts. 

### E.g, Attorney General Opinions DM-192 (1992) at 10;JM-697 (1987) at 6. Hence, it is for the foregoing reasons that we are unable to conclude whether tbe circumstances which you describe violate sections 61.71(0 and 11.61(e) of the Alcoholic Beverage Code. This, however, does not conclude our analysis. The Alcoholic Beverage Commission as an agency of the state is empowered to proscribe and publish such rules and regulations as necessary to carry out the provisions of the Alcoholic Beverage Code and to make decisions involved in granting applications for licensed premises. Alw. Bev. 

### Code $55.31; 

### see GulfLand Co.v.Adanbc Refining Co., 131 S.W.2d 73 (Tex. 1939); 

### Tern Liquor ConrrolBd. v.SuperSav.Stamp Co.,303 S.W.2d 536 (Tex. Civ. App.- San

### Antonio 1957, tit refd 

### n.r.e.);c$ Alw. Bev. Code 4 11.49 (designation of 

### licensed premises is subject to approval ofthe commission). 

### In TexasLiquor Con@ol Board,the wurt of appeals stated thatwhere a statuteexpressly authorizes an agency to regulate an industry, it impliedly authorizes the adoption of rules to that end, and that such authorization forecloses the idea that the legislature intended to spell out the details of all operations under the act. 303 S.W.2d at 53940. Accordingly, we conclude that in the absence of legislative standards, the Alcoholic Beverage Commission may exercise its

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rulemaking authority to address situations ‘suchas those you have described in a manner consistent with the purposes ofthe code. SUMMARY Aholder ofaretail license or ptit authorizing the sale and onor off-premise consumption of alcoholic beverages may possess a firearm for the purpose of selfdefense. Whether the circumstances which you describe involving the sale of &arms violate sections 61.71(f) and 11.61(e) of the Alcoholic Beverage Code+ wncerns questions which arebeyond the purview ofthe opinion process.

DAN MORALES Attorney General ofTexas JORGE VEGA Fii Assist& Attorney General DREWDURHAM Deputy Attorney General for Criminal Justice WILL PRYOR specidcounsel RENBA HICKS State Solicitor SARAH J. SHIRLEY Chair, Opiion Committee Prepared by Toya C. Cook Assistant Attorney General

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