Honorable R. E. Swift Opinion No. ~-1418 

County Attorney 

Anderson County Re: Does Article 13a, Section 1 

Palestine, Texas of the Charter of Palestine, 

Texas, prohibit the sale.of 

beer outside the area as 

zoned by said Section of the 

Dear Mr. Swift: Charter? 

You have asked us for an opinion on the following question: 

"Does Article 13a, Section 1 of the Charter of Palestine, Texas prohibit the sale of 

beer outside the area as zoned by said Settion of the Charter?" 

In order for us to answer this question you submitted the following facts: 

The City of Palestine on April 7, 1962, by local option election legalized the sale of all alcoholic beverages for off-premise 

consumption only. 

"It shall be unlawful to.locate, maintain, 

or conduct any place where spM?itous, vinous 

or malt liquors or medicated bitters capable 

of producing intox3cation are sold at retail 

within the corporate limits of the City of 

Palestine, ~Texas, a8 they are now, or as they 

may hereafter be established, except on the 

following streets, to-wit: Spring Street beL tween Tennessee Avenue and Houston Stre~et; 

Main Street, between Tennessee Avenue and 

where It Intersects with Avenue A; Oak Street, 

between Tennessee Avenue and where it intersects with Avenue A; Sycamore Street, between 

the International and Great Northern Railroad 

and where it intersects with Spring Street; 

Avenue A, and that portion of Church Street 

between its intersection with Avenue A and 

Its intersection with Lacy Street.". 

We have been furnished a certified copy of the Charter of the 

City of Palestine, Article 13a, Section 1 of which provides as follows: " 
Honorable R. E. Swift, page 2 

i 

Opinion No. WW-1418 

The City Charter of the City of Palestine Is a legislative 

act of the legislature of the State of Texas, and the section abcvs 

quoted is an amendment adopted by the 31st Legislature and approved 

by the then Governor, T. M. Campbell, in 1910. lhe certified copy 

furnished this office by the City Secretary reveals that the above 

section Is still carried as a part of the Charter. 

Although Article 667-m+ V.P.C., as presently’codified, grants 

cities the power to regulate the sale of ‘beer asdeflned’in the 

Texas Liquor Control Act” by charter or ordinance, It does not affeet the charter provision at hand because the charter at hand does 

not deal with’beer” ~1s such, nor does it deal with “any malt beverage containing cne-half of one percent or more of alcohol by 

volume nor more than four percent of alcohol by weight”, (the latter being “beer” as defined In the Texas Liquor Control Act). It 

is, therefore, necessary to consider whether beer Is included wlthn 

the term “splritous, vlnous or malt liquors or medicated bitters 

capable of producing Intoxication” as used In the.charter. In 

answering this question we must look not only to the charter itself 

but to the various subsequent Texas Liquor Control Acts as well. 

Stanford v. Butler 181 S.W.2d 269, 142 !bx 692, 153 ALR 1054; 82 

CJS Sec. 360 (p. ti7). 

That beer Is. not Included within the terms splrltous or vlnous 

liquors or medicated bitters capable of producing Intoxication is 

too apparent to merit discussion. If the sale of b.eer outside the 

designated area is prohibited by the above charter provision It 

must be by virtue of beer being Included within the term “malt 

liquor”. Undoubted1 7, at the time the charter provision was adopted 

by the legislature,. ‘beer” was included within the term “malt 

liquors. ” Mater v. State, 21 S.W. 974 (Clv.App. 1893); Fl uetia v. 

State, 159 S.W. lltlll (T 

Grim. 1917); 

Crim. 19131; Claunch v. State, 

T%? v. 

-f?nTs 

State, 260 S W 1043 (T 

l3ubank v. State, 2tIb 3 W 234 (Tex. Grim: 1926); 

Grim. . 

zt;tt v. 

State, w(Tex. czl. 1929). 

In this connection, however, it should be pointed out that 

the above cases were decided prior to the passage of the first l’ex@ 

Liquor Control Act and did not refer to the charter provision at 

hand. The primary question before us Is whether theaffect of the 

various Texas Liquor Control Acts cited below was to amend or. Partlally repeal the above quoted special charter. 

In 1933, the legislature defined beer as “beer containing Onehalf (&) of one per cent (1%) or more of alcohol by volume and not 

more than three and two tenths percenturn (3.H) of alcohol by wei@ 

(Acts 43rd Legislature, Regular Session, Chapter 116, Sec. l(d) pa@ 

288.) 
Honorable R. E. Swift, page 3 .OpinionNo. W-1418 

In 1935 the legislature defined .beer as "any malt beverage 

containing one-half (3) of one Per cent (1s 

by volume and not more than four percentum 

weight." 

1 

or more of-alcohol 

4s) of alcohol by 

(Acts 44th Legislature, Second Called Session, Chapter 

467, Article II, Section l(c).) 

The 1935~Act doesnot.define "malt liquor" but.lt does define "liquor!' as "any alcoholic beverage containing alcohol In 

excess.of four per cent (4%) by weight . .~ ." (Acts.44th Legislature, supra, Article I, Sectlon3a, page 1796), and this deflnltion of "liquor" has been carried forward to the present Texas 

Liquor Control Act. 

The first.leglslatlve definition of "malt liquor" in Texas 

is found In the 1949 amendment to the Texas Liquor Control Act 

where It is definer. as "a malt beverage 

percentum.(4$) of alcohol by weight." 

containing more than four 

Regular Session, Chapter 543, Section 1 

Acts 41st Legislature, 

codified as Article 666-3a(L3), V.P.C.) 

13), page 1013; presently 

Article II, Sec. 1 of the 1935 Texas Liquor Control Act, 

(44th Legislature, Second Called Session, Chapter 467, H. B. No. 

77) provldes.ln part: 

"Unless otherwise herein specifically <" 

provided by the terms of this Act, the.manufacture, sale and distribution of'beer, as ~. 

hereinafter defined, shall be governed -excluslvely by the .provlslons of Article 

of this Act, . . .'I (Rnphasls added) 

This provision has been d&ried forward virtually unchanged 

to the present Texas Liquor Control Act. (Art. 667-2 V.P.C.) 

We must presume that the subsequent statutes were enacted by 

the legislature with full knowledge of the existing law including 

the cha>,;-r provision at hand. Freels v. Walker, Tex . 

26 S.W.2d 627 (1 30); TeX. 

S.W.2d 125 (1942 3 

McBride v. Clayton, m 

. They must be construed In conjunction with 

each other and should be construed so that they operate In harmony. 

Freels v. Walker, supra; McBride v. Clayton, supra. 

In accordance with the above principle and in order to give 

effect to all the legislative acts we hold that the effect of the 

various legislative acts subsequent to the charter provision at 

hand was to eliminate "beer" 

of "malt liquor". 

as defined therein from the category 

This resulted, In effect, in an amendment of 

the charter and it does not prohibit the sale of "beer" (i.e. any 

malt beverage containing one-half (3) of one per cent (1%) or 
Honorable R. E. Swift, Page 4 Opinion No. WW-1418 

more of alcohol b volume and not more than four per cent (4%) cf 

alcohol by weight T outside the designated area. 

SUMMARY 

Article 13a, Section 1 of the Charter of the 

City of Palestine has been amended by Art. 667-1(b) 

ViP.C. and does not prohibit the sale of "beer" as 

defined In Article 667-1(b), outside the area described in the said charter provision. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

SRW:rk 

APPROVED: 

OPINION COMMITTEZ 

W. V. Geppert, Chairman 

Sonn iieeves 

Marvin Thomas 

Charles Lind 

REVIEWED FOR TRE ATTORNEY GENERAL 

BY: Leonard Passmore 

B 

Assistant 

0