Hon. Charles A. Allen Opinion No. M-335

Criminal District Attorney Harrison County Re: Sale or disoensinq P. 0. Box 776 of alcoholic beverages Marshall, Texas inCity ofMarshall involving annexed dry area, and reDear Mr. Allen: lated questions.
Your opinion request asks our opinion concerning the captioned inquiries. The factual matters presented in substance are not indispute and are hereinafter related.
On May 12, 1966, an areawas annexed to theCity of Marshall, Harrison County, Texas, which City was, at the time of annexation, awet area for the sale of all alcoholic beverages for off-premises consumption. Subsequent to such annexation and on October 8, 1966, an election was held by thevoters of the then City ofMarshall and the following questions, either in substance or in fact, were presented:
A. For or against the sale of all alcoholic beverages, onpremises consumption.
B. For or against the legal sale of all alcoholic beverages, off premises consumption. The voters of the City ofMarshall voted against proposition "A"above andvoted for proposition "B"above.
Your inquiries appear tobe divided into (3)separate categories, to-wit: (1)Is the annexed area awet area for the legal sale of all alcoholic beverages for off-premises consumption? (2)Can aperson operate a liquor store in such annexed area?

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(3)Can a person operate aprivate club under the "pool" system in the annexed area?
Your office has advised that there isno question concerning thevalidity or legality of the local option election.
Tthas been held by our state courts thatwhen a local option election has been held ina certain area, which area voted "dry," and that areawas subsequently annexed toa city that is "wet," then the annexed area remains "dry"until the qualified voters of the annexed area decide otherwise inan election held for thatpurpose. Hawthorne v. Texas Liquor Control Board, 113 S.W.2d 577 (Tex.Civ.App. 1938, nowrit); Houchins v. Flainos, 130Tex.413, 110 S.W.2d 549 (1937). The distinction between these cases last cited and your situation is that there was a local option election after the annexation. Since the qualified voters in the annexed area participated in the local option election subsequent to itsannexation, the latest expression of the entire populace of theCity ofMarshall is for the sale of all alcoholic beverages for offpremises consumption only. This would mean that the entire city limits of the City ofMarshall as it existed on October 8, 1966, is a "wet" area for the sale of all alcoholic beverages for off-premises consumption only. cf: Powell v. Smith, et al., 90 S.W.2d 943 (Tex.Civ.App. 1936, nowrit).
It is the opinion of this office that the annexed area to the City ofMarshall is a "wet" area for the sale of all alcoholic beverages for off-premises consumption only, and the first question should therefore be answered in the affirmative. Under Article 1, Section 15 (8)of the Texas Liquor Control Act (Article 666,V.P.C.), aperson would be authorized to secure a Package Store Permit to sell anddispense the intoxicating beverage so listed under Subsections (b)through (d)for off-premises consumption only. Since the annexed area isa "wet" area, then suchperson could secure a Package Store Permit for such annexed area. It isalso our opinion that the second question should be answered in the affirmative. Article 1, Section 15 (e)of the Texas Liquor Control Act (Article 666-15(e), V.P.C.) isknown as the "Private Club -1650-Bon. Charles A. Allen, Page 3 (M-335)

Act." Section l-l (b)defines a "Locker System" and anuncertainty is said to arise in the statute because nomention is contained therein concerning whether suchmethod of dispensing alcoholic beverage is confined to a "wet" or "dry" area. Section l-l (c)provides as follows:

"(c) 'Pool System' shallmean that system of liquor storage where allmembers of the pool participate equally in thepurchase of all alcoholic beverages and the replacement of all alcoholic beveraaes ispaid for bvmonevs assessed and collected in advance 'fromeachmember-equally. Suchpool system shall be legal only inan area which has been voted 'wet' for all alcoholic beverages by amalority of voters at an electron held under local option." ‘1Emphasisadded.)
We are advised by theTexas Liquor Control Board that a private club may be issued a Private Club Registration Permit inan area that has been voted "wet" for the sale of all alcoholic beverages for off-premises consumption. The Texas Liquor Control Board ischarged with theduty and responsibility by the Legislature with administering and enforcing the Texas Liquor Control Act. Although our courts are not bound by adepartment or administrative construction, such construction placed on a statute by adepartment or administrative body will ordinarily be adopted andupheld. Armco Steel Corporation v. Texas Employment Commission, 386 S.W.Zd 894 (Tex.Civ.App. 1965, error ref. n.r.e.1. This is particularly truewhen it isnecessary to resolve any doubt or uncertainty in the statute. Texas Employers' Insurance Association v. Holmes, 145Tex. 158, 196 S.W.2d 390 (1946). Mhile we have been referred tono rule, regulation or directive of the Texas Liquor Control Board placing such construction on the underscored portion ofArticle 1, Section 15 (e)-1 (c)of the Texas Liquor Control Act, we are nevertheless advised that this administrative construction has been consistently followed for anumber ofyears and the Legislature, with presumed knowledge 'of'thatpolicy, has not seen fit to change itby statutory amendment in subsequent legislative sessions. Therefore it is the opinion of this office that aperson would be authorized, upon obtaining apermit, to operate aprivate club under the "pool" system within the corporate city limits of theCity ofMarshall, which includes the annexed area, as the limits existed in the

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October 8, 1966, election. It follows thatwemust answer the third question in the affirmative.
SUMMARY When an area isannexed to a city, which city iswet for the sale of all alcoholic beverages for off-premises consumption, and there is, subsequently, a legal local option election, which includes the annexed area, wherein thevoters approve the sale of all intoxicating beverages for off-premises consumption, then the entire city, including the annexed area, iswet for the sale of all intoxicating beverages for off-premises consumption.
A person may operate apackage store in an area annexed to a city under the foregoing facts.
A person may dispense intoxicating beverages in aprivate club under the "pool" system in an area asdescribed above and when such area has legally voted in a local option election for the sale of all intoxicating beverages for off-premises consumption only. V&j trulyyours,



# u Prepared by 0. Jay Floyd Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice Chairman Monroe Clayton Lonny Zwiener Larry Craddock 1.7. 0
.Shultz
W.V. Geppert STAFF LEGAL ASSISTANT

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