THE ATTORNEY GENERAL 

QFTEXAS 

September 11, 1969 

Hon. 0. N. Humphreys, Jr. 

Administrator 

Texas Liquor Control Board 

Opinion No. M-471 

Re: Construction of H.B. 1078, 

Austin, Texas Azts. 61st Legislature, 

R.S., 1969, concerning 

Dear Mr. Humphreys: Wholesaler's Permit. 

You have requested an opinion concerning the construction 

of H.B. 1078, Acts 61st Legislature, R.S., 1969, and have 

specifically, requested an answer to the following four (4) 

questions: 

"Question No. 1, In Section 1, Chapter 552, Acts of 

the blst Legislature, Regular Session, 1969 (hereinafter referred to as House Bill 1078), is the Wholesaler's Permit therein referred to restricted exclusively to the permit authorized in Article 1, 

Section 15(6), Texas Liquor Control Act, and excluding the General Class B Wholesaler's Permit authorized 

by Article 1, Section 15(7), T.L.C.A., and the Local 

Class B Wholesaler's Permit authorized by Article 1, 

Section 15(7a), T.L.C.A.? 

"Question No. 2. If the answer to Question No. 1 is 

I=', is House Bill 1078 unconstitutional as making 

an unreasonable and arbitrary discrimination against 

the holders of General Class B Wholesaler's Permits 

and Local Class B Wholesaler's Permits? 

"Question No. 1 Is House Bill 1078 unconstitutional 

by being partially in conflict with Article 16, Section 

20, of the Texas Constitution? 

"Question No. 4. If House Bill 1078 is not unconstitutional. mav the holder of a Wholesaler's Permit in 

an area wet for the limited purpose of the sale of 

beer make sales and purchases of liquor if title to 

such merchandise passes: (a) within the limited wet 

area where he is located; or (b) within another area 

where the sale of all alcoholic beverages is legal?" 

We have concluded that the first question must be answered in 

the affirmative. House Bill 1078 amends Article 1, Section 4, 

- 2,348 -
Hon. 0. N. Humphreys, Jr., page 2 (M-471) 

Texas Liquor Control Act, by adding a new subsection (b-l), 

which reads as follows: 

"Anything in this Act to the contrary notwithstanding, it shall not be unlawful for any 

person in any area wet for the limited purpose 

of the sale of beer, or the sale of beer and 

wine to apply for and be issued a Wholesaler's 

Permit, as described in Section 15, Subsection 

(b) of Article 1 of this Act, and to exercise 

all rights and privileges of such permit holders." 

Article 1, Section 15(6), Texas Liquor Control Act, provides: 

"Wholesaler's Permit. A WhQlesaler's Permit shall 

authorize the holder to: 

(a). Purchase and import liquor from distillers, 

brewers, wineries, wine bottlers, rectifiers and manufactures, who are the holders of Non-resident Seller's 

Permits, and their agents who are the holders of Manufacturer's Agents Permits and purchase same from other 

wholesalers within this State; 

(b). Sell liquor in original containers in which 

received in this State to retailers and wholesalers 

authorized to sell same; 

(Cl’ - Sell liquor out of State to qualified persons; 

(a)- It is provided that a persons applying for a 

Wholesaler's Permit shall be authorized to include in a 

single application his petition for such permit, as well 

as for private storage, storage in a public bonded warehouse, and private carrier's permit, and~any other permit 

which he is qualified to receive under the provisions of 

this Act. Provided, however, that such wholesaler shall 

pay the fees prescribed by this Act for each such permit 

covered in such Wholesaler's application. The same subdivision shall apply to a Class B Wholesaler's, Rectifier's, 

Brewer's, Distiller's, Class A Winery, and Class B Winery 

Permits. 

The annual State fee for a Wholesaler's Permit shall 

be One Thousand 

(Emphasis addedj. 

Two Hundred and Fifty Dollars ($1,250)." 

The Wholesaler's Permit referred to in H.B. 1078 appears to 

us to be a new class of permit and by the clear language of H.B. 

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. I 

Hon. 0. N. Humphreys, Jr., page 3 (M-471) 

1078, one must refer to Section 15(6) of Article 1 for a description of the permit and as to what a holder thereof is entitled 

to do. Since the Legislature is vested with power under Article 

16, Section 20, Constitution of the State of Texas, to regulate 

intoxicating liquors in this State, it has the power to provide 

for a new type of permit, and it need not, in particular, be 

specifically designated and contained in Article 1, Section 15, 

(the permit section of the Act). Since H.B. 1078 is a "Permit 

Act" and the General and Local Class B Wholesalers are not included, the question of "exclusion" does not arise. 

With reference to the second question, Article 16, Section 

20, of the Constitution of Texas delegates to the Legislature 

the power to regulate the manufacture, sale, possession and 

transportation of intoxicating liquors. H.B. 1078 comes within 

the power of the Legislature to create classes of permits and 

set up criteria by which one may obtain such a permit. Attorney 

General Opinion No, WW-1126 (1961). 

H.B. 1078 does not make an unreasonable discrimination 

against General or Local Class B Wholesalers. Nothing in the 

Act would prevent a person who presently holds a General or 

Local Class B Permit from making application, paying the fee, and 

obtaining a H.B. 1078 Permit, since the Act provides that s 

person may apply for this permit. 

We must, therefore, answer the second question in the negative. 

We now proceed to consider the third question. In addition 

to the power delegated to the Legislature to regulate the manufacture, sale, possession and transportation of intoxicating 

liquors, Article 16, Section 20, of the Constitution of Texas, 

provides as follows in Subsection (b): 

"(b) The Legislature shall enact a law or laws 

whereby the qualified voters of any county, justice's 

precinct or incorporated town or city, may, by a 

majority vote of those voting, determine from time to 

time whether the sale of intoxicating liquors for 

beverage purposes shall be prohibited or legalized 

within the prescribed limits; and such laws shall contain provisions for voting on the sale of intoxicating 

liquors of various types and various alcoholic content." 

By analogy, H.B. 533, Acts 57th Leg., R.S. 1961, ch. 478, 

p. 1066, allowed holders of brewer's or manufacturer's permits in 

wet areas to continue to operate if the area was voted dry provided they did not sell contrary to the local option election, 

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1 . 

Hon. 0. N. Humphreys, Jr., page 4 (M-471) 

Attorney General Opinion No. ~-11.26, supra, stated that H.B. 

533 did not violate Article 16, Section 20, of the Constitution 

of Texas, by allowing such permlttee to continue to do buslness 

after a local option election in which the location was voted 

dry, provided he 'did not sell in the dry area. WW-1126 is by 

implication interpreting sale under the local option law to -- 

mean: sale by retailers for purposes of consumption in a dry 

area and this is the type of sale prohibited by the Constitution. This interpretation has never been challenged in court 

and there is no legal authority which is contrary thereto. Our 

courts have given great weight to Attorney General's Opinions 

and follow them unless clearly wrong. Thomas v. Groebl, 147 

Tex. 70, 212 S.W.2d b25 (1348); Royalty v. Nicholson 411 S.W.2d 

- 565 - fTex.Civ.Aon. . 1967. error ref: n.r,e.) H.B. 107 does not 

include sales Gbntrary-to local option dictates and'we feel the 

holding in Attorney General's Opinion WW-1126 applies. It is the 

policy of this office to follow earlier opinions on the same 

subject where not clearly erroneous. 

No. o-1659 (1939). 

Attorney General Opinion 

We must answeryour third question in the negative, relying 

upon Opinion No. WW-1136. 

In response to the fourth question, we are of the opinion 

that the passage of title is not controlling of any issue after 

consideration of our answer to Question No. 3 and hence feel it 

unnecessary to answer Question No. 4. 

gUMMARY 

The Wholesaler's Permit referred to in 

H.B. 1078 is restricted to the Permit authorized in Article 1, Section 1.5(h), Texas Liquor 

Control Act, as to the rights and privileges 

of the permit holders, H.B. 1078 does not make 

an unreasonable or arbitrary discrimination 

against the holders of General Class B Wholesaler's Permits and Local Class B Wholesaler's 

Permits. ,H.B. 1078 is constitutLona1 and does 

not conflict with Article 16, Section 20, Constitution of the State of Texas. 

Ve,p@ruly yours, 

/ 627 zzi= 

C. MARTIN 

ey General of Texas 

Prepared by Charles R. Parrett 

Assistant Attorney General 

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. , 

Hon. 0. N. Humphreys, Jr., page 5 (M&71) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice Chairman 

Ronald Luna 

Bob Lattimore 

Tom Bullington 

Gordon Cass 

Meade F. Griffin 

Staff Legal Assistant 

Hawthorne Phillips 

Executive Assistant 

Nola White 

First Assistant 

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