Honorable Joe Kunsohik, Commissioner

Bureau.ofLabor 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 departmentupon the follow5.ng matter: "Referenoe ismade to Artlole 1569, as amended, Texas Penal Code, which provides, In part, that *no female shallbe employed

....... in any roadside drink and/or rood vending establishmant formore than ni h in any one calendar day nor more than flttyf'o: hzgz in any one calendar week.'
"In oonneotionwith your opinionNo. O-1723, aatea December 1, 1939, and. with partioularreferenoe to a beer tavern which Is located outside of the oity limits:
Woes Article 1571 of the Penal Code, when it provides thatArticles 1569 and 1570 of the Penel Code shallnot apply to 'mercantileestablishments,Vexclude from the provisions of Articles 1569 and 1570, supra, such establishmentscommonlyknown as 'beertaverns' whose main business is the sale of beer,,and,whloh beer tavernsnt the same time engage in the sale of such additional commoditiesas chewinggum, cigars

ana cigarettes,but which saia adaltional ootiodities ere Incidental to the main business of selling beer.
"Pour opinion on this questionwill be appreciated,in order that we may determinewhat 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 transportationcompany, or any State institution,or any other establishment, institution or enterprisewhere females are employed, for more than nine 

### (9)hours in any one(l) oalendarde nor more ~thanfifty-four 

### (54)hours in any one (1 7 oalendar week. "2

. In any laundry or cleaning and nresslng establishmentfor more than fifty-four 

### (54)hours in one (1) calendarweek; thehours 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. (Underscoringours) 

### “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 calendarweek."
-Art. 

### 1571. The two preoedingArticles shall not apply to stenographers and pharmaoists,nor to mercantile establishmentsor 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 extraordinaryemergencies, such as greatpublic oalamities or where it becomssneoessary~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 

### 1933b v amendment (Aots 

### 1933, l&-a Legislature,page 285, Ch. 114 the Legislature added two other classes of businesswhloh 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 aremercantile establishments and telephone and telegraph companies.

Commenting on these classes of businesses referred to in Articles 

### 1569end 1571 our Court of CriminalAppeals 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 statutewhich 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 subdivisionunless they comewithin contained in Artiole 1571. that Artioles whether rural of the populathe exemption

It is at once apparent that the Legislaturehas singled out "road side drink and/or food vending establishments"as something differentand apart from those businessesfalling 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 .notdescribe the b%slness in question other than as a tavern engagedmainly 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 businessmight fall within the term "road side drink and/or food vending establishment"you are advlsea that if the business inqur&&ion engagesmainly 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 exemptedby 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