Honorable W. D. Bradfield 

Chairman 

Texas Liquor Control Board 

Austin, Texas 

Dear Sir: Opinion No. O-1.708 

Rc: Is the def'inition of the words 

"open saloon", as contained in 

Article 666-3 of the Penal Code 

void because unreasonable? 

We have your letter of November 16, 1939, in which 

gourequest the opinion of the Attorney General as to the 

validity of the above captioned statute on account. of the 

definition which is therein given by the Legislature to the 

words "open saloon". 

On account of the importance of this subject, we 

quote your letter in full, which reads as follows: 

"As Chairman of the Texas Liquor Control 

Board, I am writing to request your opinion, as 

Attorney General of Texas, on the validity of 

that part of the Texas Liquor Control Act which 

defines the term 'open saloon', as used in the 

Act, as meaning: 'any place where any intoxicants 

whatever, manufactured in whole or in part by means 

of the process of distillation, or any liquor composed or compounded in part of distilled spirits, 

is sold nr offered for sale for beverage purposes 

by the drink or in broken or unsealed containers,or 

any place where any such liquors are sold or offered 

for sale for human consumption on the premises where 

sold~'. 

"It will be noted that the necessarily implied effect of this definition of the open saloon 

is to provide that only saloons licensed to sell 

whiskey shall be included in the definition, and that 

saloons not licensed to sell whiskey but only licensed to sell intoxicating liquors other than Whiskey shall not be regarded as open saloons and, therefore, shall not be subject to the regulations and 
Honorable W. D. Bradf ield, Page 2 (o-1706) 

inhibitions applicable by law to open saloons. As, 

of course , you are aware, Section 20 of Article 16 

of the Constitution of Texas, adopted by the people 

at a special election on August 211, 1535, provides 

in its first sentence that: ‘The open saloon shall 

be and is hereby prohioited~. The Legislature sha.11 

have the power and it shall be its duty to define 

the term “open saloon’ I and enact laws against 

such. ’ Then, the next paragraph of the constitut ional amendment, adopted at this same election, 

provides that only subject to this limitation shall 

the Legislature of Texas ‘have the pcwer to regulate 

the manufacture, sale, possession, and transportation 

of intoxicating liquors.’ In view of the fact that 

for many years prior to the adoption of statewide 

prohibition by constitutional amendment i..n 1919, 

large numbers of the licensed saloons operating in 

Texas were wine and beer saloons not licensed to 

sell distilled liquors, it has been suggested, with 

what I regard as unanswerable force, that the definition of the open saloon, which effectually declares that wine and beer saloons are not onen saloons is unreasonable-upon its face;.and is,therefore, 

void, 

“Believing that it is highly important 

that the Texas Liquor Control Board and the people 

of Texas should be authoritatively advised as to 

the validity of this statute, I am writing to request of you, as the constitutional legal adviser 

of the State and of the Texas Liquor Control Board 

and of its Chairman and officers, your opinion, first, 

as to the validity of this statute; and, second, in 

case you find the present statutory definition 

of the open saloon invalid under the Constitution, 

your legal opinion is invited as to the effect of 

such unconstitutionality and invalidity of the 

statute referred to upon the remainder of the Texas 

Liquor Contra1 Act .'I 

It is believed that the Attorney General should 

never advise the law enforcement officers of the State 

that a criminal atatute, or any section of a criminal 

statute, is void merely on the ground that it is deemed to 

be unreasonable in its terms, or in its definition of terms. 

In a cast wh:re a statute is ambiguous, and is 

subject to two constructions, one of which would give to 

the statute a~ reasonable result and effectuate the purpose 

of the law, and another construction, though it should be 

based upon the more literal terms of the statute would 

lead to an absurd result and defeat the purpose of the law, 

the courts will unhesitatingly reject the latter and adopt 
the former construction. But where a statute is plain and 

unambiguous in its terms and, therefore, construes tiself, 

the courts will not strj.ke it down mcr~CIy because it 

appears to be unreasonable in it.s provisions, or that 1-t 

was conceived Jon unwisdom; for, if the courts were actuated 

merely~ by cci:lsiderations of expediency in such cases, and 

should assume to an!Ml on that ground, alone, it would be 

a substitution of the judicial for the legislative mind. 

Moreover, I.:? passing upon the Acts of the Legisla~ture, i.3~ 

courts as well as the executive departmects of the State 

must yield willing allegiance to 8Cd be bound by the Constitutiou in ail of its parts, and especially, in this 

connection, to t!lat declaration in the Bill. of Rights 

wherein it is provided that, "The faith of the people of 

Texas stands pledged to the Freservati.on of a Replzblicai? 

form of goverrment"; slnd Article II of the Constitution, 

which provides: 

"Section 1. The powers of the Government 

of the State of Texas shall te divided into 

three distinct departments, each of which shall 

be confided to a separate body of magistracy, 

to-wit: Those which a‘re Legislative to one; those 

which are Executive to another, and those which 

are Judicial to another; and no perSOr1, or.collectiorr of persons, being of one of these departments, sh~all exercise any power properly attached 

to tither of the others, except in the instances 

herein expresslzy permitted." 

The Supreme Court of this State, throughout a 

judicial history of one hundred years, has steadfastly adhered to those constitutional barriers in passing upon and construing the Acts of the Lc+slaSur;e. While the Court has, 

at times, struck down a legislative Act because it was unintelligible in its terms, and, therefore, unenforceable atiaw 

and, ic mazy I.nstances, has declared void legislative enactments because they were passed fin violation of constitutional. provisions, we know of no case where that Court 

has annulled a statute on the single ground that it may 

have been considered to be an unreasonable or unwise t?tXICtment. 

What has been said is well illustrated in the: 

following text from 39 Tex. Jur., Sec. 89, at page 162, wherein it is stated: 

"When statutes are up for calstruction, as 

often remarked, it is not within the judicial 

provi.nce to indulge in acts of legislation. It 

is for the Legislature, not the courts, to remedy 

defects or supply deficiencies in laws, and to 

give relief from unjust and unwise legislation, 
llonorable W. D. Bradfield, Image 4 (o-1708) 

although a court may, of course, direct the attention of the law-makers to a defect or omission 

in a statute. 

"The proper function of a court in this 

connection is to declare and enforce the law as 

made by the Legislature, - to determine with as 

much definiteness and certainty as may be what 

the law is as it stands, rather than to announce 

what the law should be or to speculate as to wh2 

.-- 

it is as it is. Accordingly, ---a--dourt is not author- 

--Ti%r ised, an-text, to modify, repeal, or 

re-wrim??tute.--GT (as seen above, Sec. 88) 

even to 'construe'- an unambiguous act to conform 

to its own notions of ;justice, policY,p~~323& 

s wisdom,--'* --- 

--- 

So, however desirable it might seem 

in certain cases, a court is not privileged to 

interpolate words, to add or eliminate provisions, 

or to enlarge, extend or restrict the scope of a 

law, except as this may be necessary to effectuate the legislative intent." (Italics ours.) 

The statute to which you direct the attention of 

the Attorney General is Subdivision (a) of Article 666-3 

of the Texas Liquor Control Act, which reads as follows: 

"(a) The term 'open saloon', as used in 

this Act, means any place where any alcoholic 

beverage whatever, manufactured in whole or in 

partby means of the process of distillation, 

or any liquor composed or compounded in part of 

distilled spirits, is sold or offered for sale 

for beverage purposes by the drink or in broken 

or unsealed containers, or any place where any 

such liquors are sold or offered for sale for 

human consumption on the premises where sold." 

It is believed that this statute is plain and 

unambiguous, and is not susceptibe to judicial construction 

and, therefore, unless its enactment was forbidden by some 

constitutional provision, it cannot be held to be void 

because it may be thought to be unreasonable in its definition of the term "open saloon'. 

So far as our investigation has gone, that term 

has never been otherwise defined in any of the Legislative 

Acts dealing with the subject of intoxicating liquors. 

Webster's New International Dictionary gives as one, and 

the commonly accepted, meaning of the word 'saloon' asbeing."a shop where intoxicating liquors are sold and drun?x, 

commonly without meals". But that word has a wider signification, as is illustrated by the variou~s definitions given 

to it in Bouvier's Law Dictionary, which reads: 
Honorable W. D. Bradfield, Page 5, (O-1708) 

"Saloon. A place of refreshment. An apsrtment for a specified public use. In common parlance, the word is used to designate a place where 

intoxicating liquors are! sold, and this restri.cted 

meaning may bc given to saloons, where the context 

or other circumstances require it; but it does 

not necessarily import a place where liquors are 

sold. The w.ord has a much broader meaning than 

dram shop. To constitute a saloon it is not necc'ssary that ,ardcnt spirits should be offered for 

sale and that it should be a business requiring a 

license under the revenue laws of the State." 

Various authorities are cited in the text which 

are omitted in the quotation. 

One of the cases cited by Mr. Bouvier is the 

Texas case of Early vs. State, 23 Tex. App. 364, 5 S.W. 

122, from which we quote: 

"Now, does the word 'saloon' necessarily imply that it is, or is the word convertible with the 

expression, Ia house for retailing spirituous liquors?' 

We think not, and the authorities in effect have declared otherwise in this state." 

In the case of Springfield vs. State, 13 S. W. 752, 

the court said: 

"It is charged in the Indictment that defendant 'did unlawfully play at a game with cards in a 

house for retailing spirituous liquors'. This charge 

is not supported by the evidence before us. It was lot 

proved that the house in uhl.ch defendant played cards 

was a house for retailing spirituous liquors. The 

proof was that he played in a 'saloon'. A 'saloon' 

does not necessarily mean Ia house for retailing 

spiri.tuous liquors'. Early's case', 23 Tex. App. 364, 

5 S.W. Rep. 122. . . Because a conviction is unwarranted by the evidence the judgment is reversed, 

and the cause remanded." 

And in the case of McMurtry vs. State, 38 Cr. 

App. 521, 43 S.W. 1010, 1012, the couvt said: 

"There is no allegation in terms charging 

that the room where the game of cards was played 

was at a place for retailing spiritous liquors, 

unless it be conceded that the use of the language 

'8ud Benson's Saloon' is tantamount to an al.l.cgation that i.t 17~3s a place for retailing spirituous 

liquors. The word 'saloon' has a varied meaning. 

It m3-r Yap applied to a olace Xor ret:aS.linrc spiritu- 
. . ’ Honorable W. D. Bradfield, Page 6, (O-1708) 

ous liquors, or to many other kinds of places. 

We do not believe that the allegation in this 

respect is sufficient." 

The decisions from which the above quotations 

are taken are early cases, but, while we have investigated, we do not find,that these cases have been modified 

or over-ruled by any subsequen t decisions by our Coupt 

of Criminal Appeals. 

Hence, it appears that the word 'saloon' is a 

proper one for a legislative definition. Especially do 

we think this is true in a statute which creates a penal. 

offense. It would create an uncertainty in th? law, in a 

case of this ki.nd, to leave it to a judge to define the 

meaning of a term which has more than one meaning, and which 

must be defined to make the law certain, for one judge 

might construe the word oue way and another judge in a 

different way, and it is to avoid such uncertainties in the 

enforcement of the law, and especially the criminal laws of 

the State, that it is required that a statute which creates 

a criminal offense must define the offense in plain and 

intelligible terms. 

At an election held on the fourth Saturday in 

August, 1933, the qualified voters of the State adopted an 

amendment to Section 20 of Article XVI of the Constitution 

which had the effect to authorize in certain localities 

of the State the manufacture and sale of malt and vinous 

liquors not to exceed a definite alcoholic content, and 

also to authorize in other localities only upon a local 

option vote of the people in the manufacture and sale of 

such liquors. That amendment and the legl.slative Acts passed in pursuance thereto were in effect August 24, 11.935, when 

another amendment to Section 20 of Article XVI of the Constg 

tution was adopted, which is generally referred to as the 

amendment to the Constitution repealin& 7 statewide prohibitfon. 

In consideration of the status then existing in 

the State respecting the manufacture and sale of beer and 

wine, the Attorney General would hesitate to hold, if he 

had the authori.ty SO to do, that the definition which the 

Legislature has given to the words "open saloon" in the 

Act creating the Texas Liquor Control Board, and which'was 

passed pursuant to said amendment, is so unreasonable as to 

render the statute void. 

However, there is a more demanding reason why the 

Attorney General should not so hold. All the words and proVision:5 of the said amendment to the Constitution have been 

carefully consi.dcred in the study of the questions which 

you have propounded, but assuming that they are equally well 

known to you, and generally understood, we h,ave given 
Honorable W. .D. Dradfield, Page 7 (0.~1708) 

special.’ attention to -;hose provisions of the amendment 

which are especially applicable to this discussion, and 

which we quote: 

“Section 1 i That Article XVI of the Cotiotitut ion of Texas be amended by striking out 

Section 20a to Sctition 2Oe, both inclusive. and 

substituting in lieu thereof the follo\fine: 

“Article X%1, Section 20 (a). The open 

saloon shall be and is hereby prohibited. The 

Legislature shall have pow&, and it shall be 

its duty to define the term .*open saloon’ and 

enact laws against such. 

“Subject to the’ foregoing, the Legisl.ature 

shall have the power to regulate the manufacture,, 

sale, possessl,on and tra.nsportatlon of intoxicating liquoro, including the power to establish a 

State monopoly bn the sale of distilled liquors , , ‘1 

While the Constitution, like any other written 

document, in subject to judiciul construction, when s&h 

conotruction is coll~d for , yet in passing upon a constitutional provision I;lic courts are not warrant&l in exc?.ud-~ 

In& from thcfr consideration one .section of, the Constitu- 

. . tlon in order to empholcnize :‘nother section, unless there 

Is such uncertainty in the MOT’13 of a given section .of the 

Constitution 00 to require the courta to h6J.d that ,ouch a 

provision ia unintelligible, and, Lhcrcfore, void. 

The language of ‘Subsection (a) of Section 20 of: 

Article XVI of this Amendment to the Conatitutlon is plain 

and not subject to judicial construction. The command 

thorc given ta the Legislnfurc to define the term “open saloon” 3.u as much a part ol the Constitution ,na tho &hcr 

provisions of that amondmcnt . Thercforo, it is not the 

function of the courts or of the Attorney Gcncrbl to speculate upon the Pcaoonu or motive which mny have actuated 

the LcgLrjlnturc in eubmlttin~: thi:, nmcndmcnt to the vote 

of ‘the pcoplc in the language contained in the quoted Scction, 

saloon” 

The Ic~;lr~lr~turo could ~IRVC defined the term “open 

in the joLnt rcaolution which nubmi.ttod this Amendmcnt to the gc0p1.c~ Th,cfdid not do so, and II; was the 

province of the votcro of the State, if thoy ARM fit ho to 

do, to rcjcct the nmcndment on that or n,ny othc:r ground 

,thnt may have nctuatcd them in castlnfi thc1.r votes. The 

pcoplc, olonc, have power in ouch CRBCO, and their act in 

adopting the Coti:;titu~Ll.ou or an smendmcnt to the Constitution is the suprcmc law of the land, sevc only where it 

may conflict with the Conatituti,on OP the United States, 

and is binding al;l.kc on all. departments of the State. 
Honorable W. D. Bradfield, Page 8 (O-1708) 

In $4 Tex. Jur., at page 421, it is said: 

“The pronouncements of the Constitution 

are imperious, supreme and paramount; and 

-. 

----- pie wh-ich$??-in~~~ct~ with the Constitution 

is void.” (Italics ours.) 

The above quotation from Texas Jurisprudence 

is but an epi.tome of the decisions of our appellate 

courts, both clvi~l and criminal, on this subject. 

An enlightened iinderstanding of, and implicit 

obedience to the plain mardates of the Coastitution, including all amendments thereto, are essential to the 

preservation of the American form of government. Hence, 

it must, until changed in the constitutional way, override varying popular opinions and contrary individual 

desires. 

In the rather recent case of Travelers Insurance 

Company vs. Marshall, 124 Tex. 445, 76 S.W. (2d) 1007, 

Cureton, C-J., speaking for the Supreme Court, gave judicial utterance to most of what has here been said. And 

first among the many authorities cited by Judge Cureton 

in one part of the opinion in t.hat case is that of Stockton vs. Montgomery, Dallam’s Decisions, p. 473, which was 

rsnd,ered in the ear1.y days of the Repuhl.fc, and from 

which we briefly quote: 

“What is the consistution? It is the 

basis on r;hich the government res.ts, the authority for all. law; and is the commission under 

which the legislature, the executive and judiciary 

act, It is permanent and n.ot influenced by the 

temper of the ti.mes. Whatever the collisions of 

opposi.te interests, the virulence of parties and 

the conspiraci.cs of corruption, puh1.i.c robbery 

and. treason, it continues like the Himmaleh or 

.the Andes, amidst and above the storm; the natio!l’s 

destiny dependent upon its subsistence, . .‘I 

In the case of Cal.dwell. vs. Crockett, 68 Tex. 323., 

4 S.W. 607, Stayton, J., speaking for the Supreme Court said: 

“It is urged that the acts of August 7, 

1876, April 22, 1879, and April 2, 1883, are 

unconstit ut ional, In that they are retroactive 
Honorable \:T. D. Bradfield, Page 9 (O-1708) 

in character, and create demands where none 

before existed. That the Constitution commanded the Legislature to pass these laws, 

is a sufficient answer to this claim. Const. 

art. 16, Sec. 26. What the Constitution commands, cannot be unconstitutional." - _- - 

saloon", 

The Legislature,' in defining the words "open 

acted in obedience to the command of the people 

as expressed by their vote in adopting the foregoing 

constitutional amendment, and the Attorney General has 

no authority to annul that Act. 

It becomes unnecessary to answer the second 

question which you have propounded in your letter. 

Yours very truly 

/s/ Gerald C. Mann 

Attorney General of Texas 

/s/W. F. Moore 

First Assistant Attorney, 

General 

Diet. to 

FG. 

12-13-39 

This Opinion 

Considered and 

Approved in 

Limited 

Conference