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? Youhave asked us for an opinion onthe 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: TheCity 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 mayhereafter be established, except on the following streets, to-wit: Spring Street beL tween Tennessee AvenueandHouston Stre~et;

MainStreet, between Tennessee Avenue and where It Intersects with AvenueA; OakStreet, between Tennessee Avenue andwhere it intersects with AvenueA; Sycamore Street, between the International and Great Northern Railroad andwhere it intersects with Spring Street; Avenue A, and that portion of Church Street between its intersection with AvenueAand Its intersection with Lacy Street.". Wehave 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

TheCity Charter of the City of Palestine Is a legislative act of the legislature of the State of Texas, andthe section abcvs quoted is an amendmentadopted by the 31st Legislature andapproved 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 handdoes not deal with’beer” ~1ssuch, 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 wemust look not only to the charter itself but to the various subsequent **Texas** Liquor Control Acts as well. Stanford v. Butler 

### 181S.W.2d269,142 !bx692,153ALR1054;82 CJSSec. 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”

. Undoubted17, at the time the charter provision wasadopted by the legislature,. ‘beer” was included within the term “malt liquors. ” Mater v. State, 21 S.W. 974 (Clv.App. 

### 1893);Fl uetiav. State, 159 S.W. lltlll (T

Grim. 1917); Crim. 19131; Claunch v. State,

T%? v. -f?nTs

State, 260 SW 

### 1043 (T l3ubankv. State, 2tIb3 W234 (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 anddid not refer to the charter provision at hand. Theprimary question before us Is whether theaffect of the various Texas Liquor Control Acts cited below was to amendor.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 byvolume andnot more than three and twotenths percenturn 

### (3.H) of alcohol bywei@ (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 "anymalt beverage containing one-half (3) of one Per cent (1s byvolume andnot 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), andthis deflnltion of "liquor" has been carried forward to the present Texas Liquor Control Act. Thefirst.leglslatlve definition of "malt liquor" in Texas is found In the 1949amendmentto the Texas Liquor Control Act where It is definer. as "a malt beverage percentum.(4$) of alcohol by weight." containing morethan 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. 

### 667-2V.P.C.) Wemust presumethat 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

. 

### 26S.W.2d 

### 627 (1 

### 30); TeX. S.W.2d 125 (19423 McBride v. Clayton, m

. Theymust 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 andin order to give effect to all the legislative acts wehold that the effect of the various legislative acts subsequent to the charter provision at handwasto eliminate "beer" of "malt liquor". as defined therein from the category This resulted, In effect, in anamendmentof the charter andit does not prohibit the sale of "beer" (i.e. any malt beverage containing one-half (3) of one per cent (1%) orHonorable R. E. Swift, Page 4 Opinion No. 

### WW-1418

more of alcohol b volume andnot more than four per cent (4%) cf alcohol by weightToutside the designated area. SUMMARY Article 13a, Section 1 of the Charter of the City of Palestine has been amendedby Art. 

### 667-1(b) ViP.C. anddoes 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, WILLWILSON Attorney General of Texas

SRW:rk APPROVED: OPINION

COMMITTEZ W.V. Geppert, Chairman

Sonn iieeves Marvin Thomas Charles Lind REVIEWED

FORTREATTORNEY

GENERAL BY: Leonard Passmore B Assistant
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