DAN MORALES 

ATTORNEY GENERAL 

QBffice of tty 2Ittornep @eneral 

Qtate of QLexa$ 

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 self defense (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 a tirearm ~&x the purpose of self defense in light 

of the 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 not jeopardize 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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Mr. Doyne Bail9 - Page 2 (DM-293) 

liwnsee knowingly allowed a person to possess a firearm in a 

building on the licensed premises. This subsection does not apply to 

a person: 

(1) who holds a security officer wmmission issued by the 

Texas Board of Private 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 is wearing a distinctive uniform; and 

(C) the weapon is in plain 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 of unlawtidly carrying a weapon and now states that: 

(a) A person commits an offense if he 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 of the commission of the 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 is to act in the capacity of a security guard 

IWe note that while there exists a separate citation for each provision, the text of the provisions 

is identical. 

28cetion 46.01 provides chapter definitions not relevant to this discussion. 

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Mr. Doyne Bail9 - Page 3 (DM-293) 

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 a Class 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 of alcoholic beverages. 

Penal Code 5 46.02(a), (b)(Z), (e), (f) (footnote added). You have asserted that the 

recent amendments to the Alcoholic Beverage Code and the exceptions found in the Penal 

Code are in irrewncilable 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 of the provisions of the 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 a person olher than the holder of the license, 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 an exception for a person who is serving as a security guard cut&xl 

by the Texas Stale Board of Private Investigators and Private Security Agencies under certain 

ckmutances. It is interesting to note that the language in the exception is identical te that which is used 

intheamendments tothe AlcoholicBeverage Codesections 11.61(e), 61.71(f). 

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Mr. Doyne Bail9 - Page 4 (DM-293) 

legislative intent, we rely on the Code Construction Act. Located in the Government 

Code, section 312.005, it speciGcally provides: 

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 all unrepealed sections of preexisting 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& 161 S.W.2d 455 (Tex. 1942). 

We now turn to your second inquiry in which you ask that we address the instance 

where a holder of a retail license or permit authorizing the sale of alcoholic beverages also 

sells 6rearms in a building in which there is a licensed premises or another entity sells 

tIrearms in an area separate and 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 of the licensed premises. Such factual analysis is beyond 

the purview of the opinion process. See, e.g., Attorney General Opinions DM-98 (1992) 

at 3; H-56 (1973). Furthermore, it is not a general practice of ~this office 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 $5 5.31; see GulfLand Co. v. Adanbc Refining Co., 131 S.W.2d 73 (Tex. 1939); 

Tern Liquor Conrrol Bd. v. Super Sav. 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 of the commission). In Texas Liquor Con@ol Board, the 

wurt of appeals stated that where a statute expressly 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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Mr. Doyne Bail9 - Page 5 (DM-293) 

rulemaking authority to address situations ‘such as those you have described in a manner 

consistent with the purposes of the code. 

SUMMARY 

A holder of a retail license or ptit authorizing the sale and onor off-premise consumption of alcoholic beverages may possess a 

firearm for the purpose of self defense. 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 are beyond the purview of the opinion process. 

DAN MORALES 

Attorney General of Texas 

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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