DAN MORALES 

ATTORNEY GENERAL 

@ffice of the !Zlttornep General 

State of ‘(ICexas 

March 51997 

The Honorable Fred Hill 

Chair, Committee on Urban Atfairs 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-29 10 

Opinion No. DM-433 

Re: Authority of a home-rule city to adopt an 

ordiice restricting or prohibiting cigarette 

vending machines (RQ-9 12) 

Dear RepresentativeHill: 

You have requested our opinion regard& the authority of a home-rule municipality to adopt 

an ordimnce that e&her prohii the sale of.tobacco products through vending machines or restricts 

the placement of such machines to areas in which persons younger than eighteen years of age are 

barred. 

Cbpters 154 and 155 ofthe. Tax Code?evy a tax on the sale of cigarettes and other tobacco 

m and establish a system for the adrrrrmstration, collection and enforcement of the tax. The 

tax is enforced by a requhement that all distriiutors, wholesalers, bonded agents, and retailers of 

tobaccoproductshaveastatepennittoengageinbusiness. Chapters 154and 155provide: “Permits 

for engaging in business as a distributor, wholes&r, bonded agent, or retailer shell be govwned 

ex&siw$bylhehepPunrisionsofticode.” Tax Code $5 154.101(h), 155041(h) (emphasis added). 

In Attorney General Opiion DM-182, we held that a home-rule city ordinance that established a 

licensing system for the retail sale of tobacco products was preempted by the quoted provisions of 

the Tax Code. Attorney General Opiion DM-182 (1992). You express concern about the effect 

of the Tax Code pun&ions and Attorney General Opinion DM-182 on any attempt by a municipality 

to ban or restrict the location of tobacco product vending machines. 

In Daurrs Merchant’s andC ‘s Association v. Ci@ of Dabs, 852 S.W.2d 489, 

491 (Tex 1993), the supreme court considered a challenge to a city xoning ordinance that prohibited 

the sale of alcoholic beverages within 300 feet of a residential area. The court held that the ordinance 

was preempted by a portion of the Alcoholic Beverage Code that provides: 

(a) Except as is expressly authorized by this code, a regulation, charter, 

or ordinance promulgated by a governmental entity of this state may not 

impose stricter stands& on premises or businesses required to have a license 

or permit under this code than are imposed on similar premises or businesses 

that are not required to have such a license or permit. 
The Honorable Fred Hill - Page 2 (DE-433) 

(b) N ik the in&M of he Iegisknitre thal ihis code shall exclusive& govern 

ihe regubon of alcoholic beverages in ihis staie, and that except as 

permitted by this code, a governmental entity may not discriminate against a 

business holding a license or permit under this code. 

Alto. Bev. Code $ 109.57. In concluding that the ordinance in question was incompatible with the 

statutory provision, however, the supreme court observed that a claim of preemption had to 

overcome significant obstacles: 

[t]he mar. fici that the legislature has enacted a law addressing a subject 

does not mean the complete subject matter is completely preempted . [A] 

general law and a city ordiice will not be held repugmmt to each other if 

any other reasonable construction leaving both in effect can be reached. . . . 

Thus, if the Legislature chooses to preempt a subject matter usually 

encompassed by the broad powers of a home-rule city, it must do so with 

unmistakable clarity. 

852 S.W.2d at 491 (citations omitted). 

In the DuZ.%r.r Merchan! ‘s case, the statute provided that the Alcoholic Beverage Code was 

to “exclusively govern the regulalian of alcoholic beverages.” Id. Furthermore, an ordinance could 

not “impose stricter standards” on a business selling alcoholic beverages than one not doing so. It 

was dear thst an ordintince restricting the sale of alcoholic beverages based on location represented 

an attempt to “regulate,” and that such an ordiice sought to “impose stricter standards” on 

businesses selling alcoholic beverages 

By contrast, the Tax Code does not say that sll “regulation” of tobacco products “shall be 

governed exclusively by the provisions of this code,” but merely that “permits for engaging in 

busiwss” are so governed. In our opinion, an otxlhnce that restricts the location of tobacco vending 

machines, even to the point of prohibition, does not implicate the “permitting” procedure established 

by state law. With regard to the sale of tobacco products, the legislature has not preempted the 

subject matter with %m&akable clarity.” It has spoken only to the petmitting or licensing process, 

as in Attorney General opinion DM-182, rather than to the entire spectrum of possible “regulation.” 

We conclude that a home-rule city is authorized to adopt an ordinance restricting the location of 

tobacco product vending machines, or banning them entirely, and in doing so, does not run afoul of 

the provisions of chapters 154 and 155 of the Tax Code. 
The Honorable Fred Hill - Page 3 (DM-433) 

SUMMARY 

A home-rule municipality is empowered to adopt an ordinance that either 

prohii the sale of tobacco products through vending machines or restricts 

the placement of such machines to areas in which persons younger than 

eighteen years of age are barred. 

DAN MORALES 

Attorney General of Texas