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 in City of Marshall 

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 in dispute and are hereinafter related. 

On May 12, 1966, an area was annexed to the City of 

Marshall, Harrison County, Texas, which City was, at the 

time of annexation, a wet 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 the voters of the then City of Marshall 

and the following questions, either in substance or in fact, 

were presented: 

A. For or against the sale of all alcoholic beverages, 

on premises consumption. 

B. For or against the legal sale of all alcoholic 

beverages, off premises consumption. 

The voters of the City of Marshall voted against proposition "A" above and voted for proposition "B" above. 

Your inquiries appear to be divided into (3) separate 

categories, to-wit: 

(1) Is the annexed area a wet area for the legal sale of 

all alcoholic beverages for off-premises consumption? 

(2) Can a person operate a liquor store in such annexed 

area? 

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Hon. Charles A. Allen, Page 2 (M-335) 

(3) Can a person operate a private club under the "pool" 

system in the annexed area? 

Your office has advised that there is no question concerning the validity or legality of the local option election. 

Tt has been held by our state courts that when a local 

option election has been held in a certain area, which area 

voted "dry," and that area was subsequently annexed to a city 

that is "wet," then the annexed area remains "dry" until the 

qualified voters of the annexed area decide otherwise in an 

election held for that purpose. Hawthorne v. Texas Liquor 

Control Board, 113 S.W.2d 577 (Tex.Civ.App. 1938, no writ); 

Houchins v. Flainos, 130 Tex.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 its annexation, the 

latest expression of the entire populace of the City of Marshall is for the sale of all alcoholic beverages for offpremises consumption only. This would mean that the entire 

city limits of the City of Marshall 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, no writ). 

It is the opinion of this office that the annexed area 

to the City of Marshall 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.), a person would be authorized 

to secure a Package Store Permit to sell and dispense the 

intoxicating beverage so listed under Subsections (b) through 

(d) for off-premises consumption only. Since the annexed area 

is a "wet" area, then such person could secure a Package Store 

Permit for such annexed area. 

It is also 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.) is known as the "Private Club 

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Bon. Charles A. Allen, Page 3 (M-335) 

Act." Section l-l (b) defines a "Locker System" and an uncertainty is said to arise in the statute because no mention 

is contained therein concerning whether such method of dispensing alcoholic beverage is confined to a "wet" or "dry" 

area. Section l-l (c) provides as follows: 

"(c) 'Pool System' shall mean that system of 

liquor storage where all members of the pool participate equally in the purchase of all alcoholic 

beverages and the replacement of all alcoholic beveraaes is paid for bv monevs assessed and collected in 

advance 'from each member-equally. Such pool system 

shall be legal only in an area which has been voted 

'wet' for all alcoholic beverages by a malority of 

voters at an electron held under local option." 

‘1Emphasis added.) 

We are advised by the Texas Liquor Control Board that a 

private club may be issued a Private Club Registration Permit in an area that has been voted "wet" for the sale of 

all alcoholic beverages for off-premises consumption. The 

Texas Liquor Control Board is charged with the duty and responsibility by the Legislature with administering and enforcing the Texas Liquor Control Act. Although our courts 

are not bound by a department or administrative construction, 

such construction placed on a statute by a department or 

administrative body will ordinarily be adopted and upheld. 

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 true when it is necessary to resolve any doubt 

or uncertainty in the statute. Texas Employers' Insurance 

Association v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946). 

Mhile we have been referred to no rule, regulation or 

directive of the Texas Liquor Control Board placing such construction on the underscored portion of Article 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 a number of years and the 

Legislature, with presumed knowledge 'of'that policy, has 

not seen fit to change it by statutory amendment in subsequent legislative sessions. Therefore it is the opinion of 

this office that a person would be authorized, upon obtaining 

a permit, to operate a private club under the "pool" system 

within the corporate city limits of the City of Marshall, which 

includes the annexed area, as the limits existed in the 

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Hon. Charles A. Allen, Page 4 (M-335) 

October 8, 1966, election. It follows that we must answer 

the third question in the affirmative. 

SUMMARY 

When an area is annexed to a city, 

which city is wet 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 the voters approve the sale 

of all intoxicating beverages for off-premises 

consumption, then the entire city, including 

the annexed area, is wet for the sale of all 

intoxicating beverages for off-premises consumption. 

A person may operate a package store in 

an area annexed to a city under the foregoing 

facts. 

A person may dispense intoxicating 

beverages in a private club under the "pool" 

system in an area as described 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 truly yours, 

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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