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November 

### 29, 1974
The Honorable Kenneth W. Cook Opinion No. H- 464 Acting Administrator, Texas Alcoholic Beverage Commission Re: Authority of.theAlcoholic :. P. 0. Box 13127, Capitol Station Beverage’ Commission to’ Austin, Texas 78711 issue apermit fora premise onthe campus ofa state Dear Mr. Cook: . university.. You have asked our opinion onfour questions.which re!ate to the sale ofalcoholic beverages onthe campus of state supported universities.’ Your first question involves Article 666-25a, Penal Auxiliary Law~a, which provides in part that:

. . . the governing authorities ofany city or town within the corporate limits ofany such city **or** townmay prohibit the sale of alcoholic beverages by any dealer where the place ofbusiness ofany . such dealer is within three hundred (300) feet ofany church, public school or public hospital.
. . . You inform us that the City ofHouston has enacted an ordinance which provides inpart that:

It shall be unlawful for any dealer to sell alcoholic beverages within the corporate limits ofthe city where the place ofbusiness of such dealer is within three hundred (300) feet of any church, public elementary, junior high or high school or public hospital
. . . . Your first question asks whether the Houston ordinance is constitutional and is authorized byArticle 666-25a.

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The Honorable Kenneth W. Cook, page 2 (H-464)

. The basic difference between the statute and the ordinance is in its effect onpublic schools. The statute includes a reference to public schools. That term includes state supported institutions ofhigher education. Attorney General Opinion M-749 (1970). The ordinance is worded to delete public po,st-secondary institutions from its coverage. You have advanced noindication ofwhy you question the constitutionality ofthe ordinance. The statute previously has been held tobe constitutional. Attorney General Opinion O-5160 (1943). We believe the city’s distinction between colleges onthe one hand and elementary and high schools onthe, other has a rational basis and is not barred by the equal protection clause ofthe Fourteenth Amendment to the United States Constitution. This ,is. particularly true given the recent lowering ofthe age at which alcoholic beverages can be legally consumed so that virtually all college students are now able to legally purchase and consume alcoholic beverages.. Accordingly, we find no constitutional barriers to the city ordinance. We also believe that Article 666-25a does not prohibit the type of ordinance involved here. Under the statute the city is permitted but not required to take the action outlined inthe statute. The city has no obligation to invoke any ofthe authority granted it by the statute, andwe see nothing inthe statute to suggest that ifany ofthe power is exercised, all ofitmust be exercised. Accordingly, we believe the city ordinance is valid. I

Inconnection with your second question you inform us that a Texas corporation holding lease rights from a state supported university has appbed for aMixed Beverage Permit for premises located onthe campus ofthatuniversity. Your second question is:

Does the fact that the premises sought tobe licensed are located onthe campus ofa state supported university on land owned by the State ofTexas require the Texas Alcoholic Beverage Commission to refuse the issuance ofapermit to the corporation acting as a concessionaire?

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The Honorable Kenneth W. Cook, page 3 (H-464)
Assuming that the premises which are sought to be licensed are not stadiums or enclosures where athletic events sponsored or participated in bypublic schools are conducted, (Education Code, §4.22) we know of no statute which would preclude the Commission from issuing apermit. Your third and fourth questions were presented in a supplemental request and involve an application for aMixed Beverage Permit for premises onthe campus ofthe University of Texas at Austin. Unlike the Houston situation, no concessionaire is involved. The University itself is the applicant. Your third question is:

Is it constitutional for the University of Texas atAustin to hold a mixed beverage permit issued by the Texas Alcoholic Beverage Commission? You have indicated that your specific concern is whether one agency of the state can license another agency. Itis not uncommon for a state agency or its employees to be required to be licensed by another agency. For example, drivers of state vehicles are not exempt from the requirements of obtaining a driver’s license. V. T. C.S. art. 6607b, 53; Attorney General Opinion O-470 (1939); cf, , Attorney General Opinions C-249 (1964), O-887 (1939), O-790 (1939), O-723 (1939). State owned nursing homes are specifically required to be licensed. V. T. C.S. art. 4442~. An act or practice will notbe held unconstitutional unless it is prohibited by the Constitution in express terms or by necessary implication. Lower Colorado River Authority v. McGraw, 83 S.W. 2d 629 **(Tex.** Sup. 1935). You have suggested no section ofthe Constitution which would prevent the Commission from issuing a Mixed Beverage Permit to the University ofTexas atAustin, andwe know ofnone. Your final question is:

Does the University of Texas at Austin qualify as an entity authorized to hold amixed beverage permit under the Texas Liquor Control Act?

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The Honorable Kenneth W. Cook, page 4 (H-464$

You indicate inyour letter that your specific concern is whether the University of Texas is a “person” qualified to hold apermit under the definition of “permittee” at Article 666-3a(12), and the definition of “person” atArticle 666-3a(6). Those portions ofthe statute provide:

(121 ‘Permittee’ shall mean any person who is the holder ofapermit provided for inthis Article, or any agent, servant, or employee of such person. (6) ‘Person’ shall mean and refer to any natural person or association ofnatural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee ofany ofthem. There is nothing in the definition ofperson to exclude a state agency, and we believe the definition was intended to be broad. Without considering whether other portions ofthe definition might apply to an agency ofthe government, we are ofthe opinion that the University of Texas qualifies as
‘an organization. See Adams v. United States, 241 F. Supp. 383 (S.D. Ill.: 1965) (holding that the United States is an organization); cr. , u,. United States, v. Myers, 363 F.2d 615 (5th Cir. 1966); Government Employees Insurance :, .~. Co. v. United States, 349 F. 2d 83 (10th Cir. 1965) ‘382 U.S.. lb26 (1966); Irvin v. United States, 148 F.Supp. 25 (D.S.D. 1957); Rowley ‘v. United States, 140 F.Supp. 295 (D. Utah 1956) (all holding that the United States is included in the term, “person or organization”), Accordingly, : we believe t.heUniversity of Texas qualifies to hold a permit from~the
. ,: Alcoholic Beverage Commission. SUMMARY The Alcoholic Beverage Commission can issue a permit for premises located onthe campus of a state university, and the university itself may hold such a permit. -Very truly yours, jHN L. HILL ,. .. Attorney General ofTexas

p. 2126The Honorable Kenneth W. Cook, page 5 (H-464)

APPROVED:

DAVID M. KENDALL, Chairman Opinion Committee

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