. _ 

November 29, 1974 

The Honorable Kenneth W. Cook Opinion No. H- 464 

Acting Administrator, Texas Alcoholic 

Beverage Commission Re: Authority of .the Alcoholic :. 

P. 0. Box 13127, Capitol Station Beverage’ Commission to’ 

Austin, Texas 78711 issue a permit fora premise 

on the campus of a state 

Dear Mr. Cook: . university.. 

You have asked our opinion on four questions.which re!ate to the sale 

of alcoholic beverages on the campus of state supported universities.’ Your 

first question involves Article 666-25a, Penal Auxiliary Law~a, which provides in part that: 

. . . 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. . . . 

You inform us that the City of Houston has enacted an ordinance which 

provides in part that: 

It shall be unlawful for any dealer to sell 

alcoholic beverages within the corporate limits 

of the city where the place of business 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 by Article 666-25a. 

. 

p. 2123 

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a’ r 

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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 on public schools. The statute includes a reference to public 

schools. That term includes state supported institutions of higher 

education. Attorney General Opinion M-749 (1970). The ordinance 

is worded to delete public po,st-secondary institutions from its coverage. 

You have advanced no indication of why you question the constitutionality 

of the ordinance. The statute previously has been held to be constitutional. 

Attorney General Opinion O-5160 (1943). We believe the city’s distinction 

between colleges on the one hand and elementary and high schools on the, 

other has a rational basis and is not barred by the equal protection clause 

of the Fourteenth Amendment to the United States Constitution. This ,is. 

particularly true given the recent lowering of the 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 in the statute. The city has no obligation to invoke any of the authority granted it by the statute, and we see 

nothing in the statute to suggest that if any of the power is exercised, all 

of it must be exercised. Accordingly, we believe the city ordinance is 

valid. 

I 

In connection with your second question you inform us that a Texas 

corporation holding lease rights from a state supported university has 

appbed for a Mixed Beverage Permit for premises located on the campus 

of that university. 

Your second question is: 

Does the fact that the premises sought to be 

licensed are located on the campus of a state 

supported university on land owned by the State 

of Texas require the Texas Alcoholic Beverage 

Commission to refuse the issuance of a permit 

to the corporation acting as a concessionaire? 

, 

. 

p. 2124 
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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 

by public schools are conducted, (Education Code, § 4.22) we know of no 

statute which would preclude the Commission from issuing a permit. 

Your third and fourth questions were presented in a supplemental 

request and involve an application for a Mixed Beverage Permit for 

premises on the campus of the 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 

at Austin 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. It is 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, 5 3; 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 not be 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 of the Constitution which would prevent the Commission 

from issuing a Mixed Beverage Permit to the University of Texas at Austin, 

and we know of none. 

Your final question is: 

Does the University of Texas at Austin qualify 

as an entity authorized to hold a mixed beverage 

permit under the Texas Liquor Control Act? 

p. 2125 
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The Honorable Kenneth W. Cook, page 4 (H-464$ 

You indicate in your letter that your specific concern is whether the 

University of Texas is a “person” qualified to hold a permit under the 

definition of “permittee” at Article 666-3a(12), and the definition of “person” 

at Article 666-3a(6). Those portions of the statute provide: 

(121 ‘Permittee’ shall mean any person who is 

the holder of a permit provided for in this Article, 

or any agent, servant, or employee of such person. 

(6) ‘Person’ shall mean and refer to any natural 

person or association of natural persons, trustee, 

receiver, partnership, corporation, organization, 

or the manager, agent, servant, or employee of any 

of them. 

There is nothing in the definition of person to exclude a state agency, 

and we believe the definition was intended to be broad. Without considering 

whether other portions of the definition might apply to an agency of the 

government, we are of the 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.he University of Texas qualifies to hold a permit from~the . ,: 

Alcoholic Beverage Commission. 

SUMMARY 

The Alcoholic Beverage Commission can issue a 

permit for premises located on the campus of a state 

university, and the university itself may hold such a 

permit. 

-Very truly yours, 

jHN L. HILL ,. .. 

Attorney General of Texas 

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

APPROVED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 2127