### THE ATTORNEY GENERAL QFTEXAS

September 11, 1969

Hon. 0. N. Humphreys, Jr. Administrator Texas Liquor Control Board OpinionNo. 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 requestedan opinion concerning the construction of H.B. 1078,Acts 61st Legislature,R.S., 1969, and have specifically,requestedan answer to the following four (4) questions:"QuestionNo. 1, In Section 1, Chapter 552,Acts of

the blst Legislature,Regular Session, 1969 (hereinafter referred to as House Bill 

### 1078),is theWholesaler's Permit therein referred to restricted exclusively to the permit authorized inArticle 1, Section 15(6),Texas Liquor ControlAct, 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.? "QuestionNo. 2. If the answer to Question No. 1 is I=', isHouse Bill 

### 1078unconstitutionalas making an unreasonableand arbitrary discriminationagainst the holders of General Class B Wholesaler's Permits and Local Class B Wholesaler's Permits? "QuestionNo. 1 Is House Bill 

### 1078unconstitutional by being partially in conflictwith Article 16, Section 20, of the Texas Constitution? "QuestionNo. 4. If House Bill 

### 1078is 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 limitedwet 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 questionmust be answered in the affirmative. House Bill 

### 1078amendsArticle 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 thisAct to the contrarynotwithstanding, it shall not be unlawful for any person in any areawet for the limitedpurpose 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) ofArticle 1 of thisAct, and to exercise all rightsand privileges of such permit holders." Article 1, Section 

### 15(6), Texas Liquor ControlAct, provides: "Wholesaler'sPermit. A WhQlesaler's Permit shall authorize the holder to: (a). Purchase and import liquor from distillers, brewers,wineries,wine bottlers, rectifiersand manufactures,who are the holders of Non-resident Seller's Permits, and their agents who are the holders of Manufacturer'sAgents Permits andpurchase same from other wholesalerswithin this State; (b). Sell liquor in original containers inwhich received in this State to retailersand wholesalers authorized to sell same; 

### (Cl’ - Sell liquor out of State to qualifiedpersons; (a)- It is provided that a persons applying for a Wholesaler's Permit shall be authorized to include in a single applicationhis petition for suchpermit, as well as for private storage, storage in a publicbondedwarehouse, and private carrier'spermit, and~any other permit which he is qualified to receive under the provisions of thisAct. Provided, however, that suchwholesaler shall pay the fees prescribedby thisAct for each suchpermit covered in suchWholesaler'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 (Emphasisaddedj.

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

The Wholesaler's Permit referred to inH.B. 

### 1078appears to us to be a new class of permit and by the clear language of H.B.

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

1078, onemust 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 vestedwith power underArticle 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 specificallydesignatedand contained inArticle 1, Section 15, (thepermit 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, possessionand transportation of intoxicating liquors. H.B. 1078 comes within the power of the Legislature to create classes of permits and set up criteriaby which onemay obtain such a permit. Attorney General Opinion No, WW-1126 (1961).
H.B. 1078 does not make an unreasonablediscrimination againstGeneral or Local Class B Wholesalers. Nothing in the Act would prevent a personwho presentlyholds a General or Local Class B Permit from making application,paying the fee, and obtaininga H.B. 1078 Permit, since theAct 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,possessionand transportationof 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 incorporatedtown or city, may, by a majority vote of those voting, determine from time to timewhether 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'spermits in wet areas to continue to operate if the area was voted dry provided they did not sell contrary to the local option election, -2350-1

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

Attorney General OpinionNo. ~-11.26, supra, stated that H.B. 533 did not violateArticle 16, Section 20, of the Constitution of Texas, by allowing suchpermlttee to continue to do buslness after a local option election in which the locationwas 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: saleby retailers for purposes of consumption in a dry area and this is the type of sale prohibitedby the Constitution. This interpretationhas 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 clearlywrong. 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 inAttorney General's OpinionWW-1126 applies. It is the policy of this office to follow earlier opinions on the same subjectwhere not clearly erroneous. No. o-1659 (1939). Attorney General Opinion

We must answeryour third question in the negative, relying upon OpinionNo. WW-1136.
In response to the fourth question,we are of the opinion that the passage of title is not controlling of any issueafter consideration of our answer to Question No. 3 and hence feel it unnecessaryto 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 ControlAct, 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 constitutLona1and does not conflictwith 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 AssistantAttorney 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 LegalAssistant Hawthorne Phillips ExecutiveAssistant Nola White First Assistant

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