Honorable Joe Kunsohik, Commissioner 

Bureau.of Labor Statistics 

Austin, Texas 

Dear #r: Opinion No. O-3190 

Re: Whether beer tavern in 

rural district is "mercantile establishment" 

within Art. 1571 or the 

Penal Code. 

This will be in reference to the request contained 

in your letter of February 19, 1941, for the opinion of this 

department upon the follow5.ng matter: 

"Referenoe is made to Artlole 1569, as amended, 

Texas Penal Code, which provides, In part, that *no 

female shall be employed . . . . . . . in any roadside 

drink and/or rood vending establishmant for more than 

ni h in any one calendar day nor more than flttyf'o: hzgz in any one calendar week.' 

"In oonneotion with your opinion No. O-1723, aatea 

December 1, 1939, and. with partioular referenoe to a 

beer tavern which Is located outside of the oity limits: 

Woes Article 1571 of the Penal Code, when it provides that Articles 1569 and 1570 of the Penel Code 

shall not apply to 'mercantile establishments,V exclude 

from the provisions of Articles 1569 and 1570, supra, 

such establishments commonly known as 'beer taverns' 

whose main business is the sale of beer,,and, whloh 

beer taverns nt the same time engage in the sale of 

such additional commodities as chewing gum, cigars 

ana cigarettes, but which saia adaltional ootiodities 

ere Incidental to the main business of selling beer. 

"Pour opinion on this question will be appreciated, in 

order that we may determine what procedure, ir any, to take 

on a matter that is now pending before this Department." 

Articles 1569 and 1571 of the Fenal Code, as amended, 

read: 

tArt. 1569. 

TCo female shall be employed: 

"1. In any factory, mine, mill, workshop, mechanical or mercantile establishment, hotel, restaurant, 
non. doe iumson~~, page L 

rooming house, theater, moving p,ioture show, barber 

shop, beauty shop. road side.drink and/Or food vending establishment, telegraph, telephone or other oifioe, express or transportation company, or any State 

institution, or any other establishment, institution 

or enterprise where females are employed, for more 

than nine (9) hours in any one(l) oalendar de nor 

more ~than fifty-four (54) hours in any one (1 7 oalendar week. 

"2 . In any laundry or cleaning and nresslng 

establishment for more than fifty-four (54) hours in 

one (1) calendar week; the hours of work to be SO arrenged as to permit the employment of suoh female at 

any time so that she shall not work more than a maxlmun:,of eleven (11) hob:rs during the twenty-four (24) 

hour period of one (1) day. (Underscoring ours) 

“3 . In any faotory engaged In the menufacturs oi 

cotton, woolen or worsted goods or articles of merchandise 

manufaotured out of cotton goods, for more than ten (10) 

hours In any one (1) calendar day nor more than sixty 

(60) hours in anyone calendar week." 

-Art. 1571. The two preoeding Articles shall not 

apply to stenographers and pharmaoists, nor to mercantile 

establishments or telegraph or telephone companies in 

rural distriots ana ih cities or towns or vf.llanes of 

less than three thoussuWlnhab1tants. as shown by the 

preceding Federal oensus, nor to superintendents, matrons, 

nurses and attendants employed by, in, and about such 

Orphans' Bomes as are charitable Institutions, not run 

far profit, and not operated by the State. In oases 0r 

extraordinary emergencies, such as great public oalamities 

or where it becomss neoessary~for the protection of' human 

life or property, longer hours may be worked." (Undersooring 

ours) 

Rote that certain classes of businesses are apeoiriea in Article 1569. Among these are mercantile establlahments, restaurants, etc. In 1933 b 

v 

amendment (Aots 1933, 

l&-a Legislature, page 285, Ch. 114 the Legislature added 

two other classes of business whloh we have undersoored; viz., 

beauty shops and road-side drink and/or food vending establishments. Article 1571 exempts certain classes of businesses situated in rural districts and in cities, towns and villages of less than three thousand Inhabitants from the provisions or Article 1569. Among these classes of businesses 

so exempted are mercantile establishments and telephone and 

telegraph companies. 

Commenting on these classes of businesses referred 

to in Articles 1569 end 1571 our Court of Criminal Appeals 

said in Glanges v. State (Ct. Cr. App. 1920) 220 S.X. 95: 

"Restaurants, from the terms of the statute, 

are in e separate class from mercantile establishments, and ere not included in the clause 

in the statute which exempts from I.ts operation 

mercantile establishments in towns in which the 

population is 3,000 or less. l! parte &own, 

21 S.D. 515:. 114 N-7:. 303." 
In Opinion No. O-1723 you were advised 

1569 and 1570 apply to all sections of the State 

districts, cities, towns or villages, regardless 

tion of such subdivision unless they come within 

contained in Artiole 1571. 

that Artioles 

whether rural 

of the populathe exemption 

It is at once apparent that the Legislature has singled out "road side drink and/or food vending establishments" as 

something different and apart from those businesses falling 

within the ordinary definition of a Wercantile est@.ishment.* 

Only the latter is exempted. 

Consequently, we are not prepared to say that a beer 

tavern locotea outside of the city limits comes within the exemption for "mercantile establishments*' in Article 1571. 

You do .not describe the b%slness in question other 

than as a tavern engaged mainly in the sale of beer and es 

an incident to this business selling such ccanuodities as ehewing gum, tigers and cigarettes, i"lhile'we do not undertake 

to advise what business might fall within the term "road side 

drink and/or food vending establishment" you are advlsea that 

if the business inqur&&ion engages mainly in the Sale of 

beer, and is looated along 8 public road it falls squarely 

within the olass of businesses enumerated in Article 1569 

and is not exempted by Artiole 1571. 

',Very truly yours 

ATTORREIGERERAL OFTEXAS 

JBS:js:jrb 

By /s/ James D. Smullen 

James D. Smullen 

Assistant 

APPROVRD MAR. 10, 1941 

/s/ Gerald C. Mann 

A'TORNEI GEN?ZRAL OF TEXAS 

APPROVED OPIXION COAMITTEE 

W BIYB, Chairman