BE mf.-o~~~~ GENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Honorable Wfllfam N. FIansley 

Criminal District Attorney 

Bexar County 

San Antonio, Texas Opinfon HoJo. V-203 

Re: Whether a private olub, 

under certain prescribed 

oonditions, would be oparating in violation 0r 

constitutional and statutory provisions relative 

to the sale of llc~uor by 

the drink; clarification 

of previous opinion No. 

O-7139, pertaining thereto s 

Dear Sir: 

Your letter of March 20, 1947, reouesting the 

oplnlon of thls department 61s to the effect to be accorded previous Oplnlon No. O-7139, relative to the sale of 

liquor in a private club, reads in part as follows: 

*qWe hereby recuest that your office furnish us 

with an opin%on as to whether or not you adopt or 

reject Optnfon No, O-7139, approved by your predocessor on December 20, 1946, 

“Your predsoeneor delf+erod two oontrary oplnions on the matter Involved, the above captioned 

oplnlon bring the last one rendered. For that roeson, we think it highly advisable to have the doubt 

thus raised resolved by you atter a re-examination 

and rq’-consideration of this matter. 

“In the event that you adopt this opinion,we 

would greatly approc%atr it it you would furthor 

clarify same0 This oplinion did not doo9de whether 

or not tha fact sltuatQon presented constituted 

a violation of the law, but marely stated that 

suoh evidence would make a prima facie case to 

present to a jury0 A mars derinfte and posPtivr 
Eon. William NJ. Haosley,, Page 2 (V-203) 

opfnton would be of great .benefit to both this 

office and the local office of the Texas Liquor 

Control Board in d,ecidfng what course of action 

to take with respect to the San Antonfo Club, 

whose operations constitute the subject matter 

of the prcvfous opinions and of this request, 

D n 0 0 a 

It is an extremely difficult task for this offfoe to attempt to pass on the application of a statutory 

provision to a efven situation which is based upon questians of fact0 Such questfous of fact are to be determined by a jury? or by the court in absence of a jury, 

and this may be subject to one construction by a given 

jury panel and to an entirely different interpretation 

by another9 dependfug upon the oredfbilfty and weight 

placed upon the witnesses and their testimony, circumstantial avfdence and other matters which cause the 

minds of reasonable men to differ, As you stated fn 

your letter, the writer of Opfnfon Do. O-7139, which 

was released 05 December 20, 194ki9~ did not pass upon 

the given facts as a matter af law, but only that such 

evidence would nake .a prime facie case to present to a 

JUrU. 

In order for us to give au opinion as origfge%- 

ly requested by the Honorabla Dert yard, Admfnistretcr, 

Texas Liquor Control BOardPd the Banner fn which the San 

Antonio Club fa operated s as set aut fn Opinion No, O7139, will nacasaarP1y have to be assuaad as the established facts ~of the case. The two lettera from the Wanorable Bert Ford are set out in full, fn ardor that wa 

My have these radta befOre ua # as r0ii0w8: 

VI11 yau plersr give ~0 your talwd opinion 

aa to iiktbr or not a ‘plaoe operated in the aaanar fndfmted below, where l looholfo bsvsregra a re 

served s omatltute tha aperatqon o? an apen saloon. 

“The San Anttoafo Club, a corporatim duly fncorporated uader tha lawa of the State of Texas, 

is the la~s8e Of approxi~taly 1300 square feet of 

spaae laoatad on the third floor of the Gunter Hotel, 

vThfa space was leased to the San Antonio 

Club for a period of five yeera at an annual 

rent’al of $5,000,00 per year, The premises were 

leased for occupancy as a prfvatm club and the 

,., .! “i 
Hon. William N. Hensley, Page 3 (V-203) 

lessee agreed to all public laws pertaining to 

the operation of private olubs. 

“The club comprises three rooms: a reading 

room, a club room, and a dining room. The alub 

is Btaffed vith stewards who are rrsponsible ior 

the general upkeep of the olub; and these two 

stewards are hired by and their salaries are 

paid by the San Antonio Club, Officers of the 

club and members of the club do not reoeive any 

compensation. 

“The Ounter Hotel strvioes the dining room 

and maintains waiters for both the lunabeon and 

dinner. 

*The club members pay the hotel regular room 

service prices, less ten per oent dlseoumt ror 

rood* 

“The hotel waiters do not have access to the 

club room, or the reading room. Their aotivitirs 

being confined strictly to the dining room. 

“There is a service bar in the olub room for 

dispensin~v mixed drinks only to members and their 

guests D 

“The bar is operated under what is knswn as 

the bar pool plan, Zaah of the seventy-five club 

members have on deposit in a separate fund $25..OQ 

each, which makes 8 total of $lg75.OC. This money 

has been pooled tdgether to purchase liquor for 

their personal use: 

Y’Pu~hases of liquor for the club is made by 

the treasurer from the holder of A Retail Package 

Store Permit 0 

-In withdrawing, liquor at the bar flom this 

pool, each member uses a ooupon book, Zaah coupon 

entitles the member to ane drink. 

“All liquor purchased for the club is plaaed 

on the back bar or is ‘stored in a small roam behind the bar. 

“Club members obtain aoupon boaka from the 

etewards o 
. 

Hon. Killiam K. Hensley, Page 4 (V-203) 

"At the end of each month the club member is 

billed for the number of coupon books he has been 

issued, 

"There ara no guest cards for the San Antonio 

Club, and no non-member is allowed in the club room 

unleeo he is a guest ot a m-her. No guest can obtain drinka from the bar, but a member may serv6 

hi8 or hei guest a drink, using his or her coupon. 

No money at any time changes hands in the club room. 

"Following are the house rules of the club. 

“1. 

we. 

“3. 

“4: 

“5. 

“6. 

“7. 

“8. 

*9. 

RlO. 

“11. 

“12, 

“130 

Bo ladies permitted before 5 p.m. 

Emrescorted ladioa permitted at any 

Members required to limit their guest& 

to four -- if more, contact the bar I%- 

garding sarvioe before arriving with the 

guests. 

No gambling with guests at any time. 

No poker allowed. 

Club open iTom 11 a. n. to 18 midnight. 

No slot machines or niokslodeona permitted on the premises. 

No long distance phone calla or wires 

perraitted from house phones. 

~;em;~~rs or guesti allowed behind 

0 

Members aannot mix their own drinks. 

Ro member ahall be permitted the privilege of bringing the same resident 

guest oitsner than once a week, 

Drinks cannot be served to anyone 

other than a member, unless accompanied by a member. 

Yembera are not permitted to bring 

their offn liquor. 
Hen. w/11 lam NJ. Hensley, Page 5 (V-203) 

“1 wish te call to youp attention the followin6 provisiam af the Texem Liquor Ceatrol Aot: 

“‘Seotieu 3,(a) of’ Article I. The tern ‘*open 

sa10on*~ as used in, this Act, means any place where 

any alcohelio beverage whatever, aaanufactured in 

whole or in part by meatas of the proeass of distillation, or any liquor cempoaed or oeapeunded in part 

0r cliatinsd epirite, is sold or ofrerad rOT arle 

for beverage purposes by the drink QT in broken or 

unmaled oontainers, or any plsoe where any auah 

liquors are sold or offered for sale for human consumption on the premises where gold. I 

“‘Sootion 3(b) or Article I. It shall be ~JP 

lawful far any por$p892), whvthor as principal, agent 

er angloyer, to up&rate or rssist in ooerating,, or 

to be directly or.‘iadlreatly Intorested ia the &peration or any open saleon in this State.’ 

“I also wish to cell your attention to Opinion 

No. C-1145, approved by the Attorney General’s Department on August 26, 1939, It is the contention 

of the San Antonio Club that Attorney General’8 Oplaion No. ,O-1145 dooa not cover this situation. The 

S4n Ant&n10 Club hmtker oontcnds that the manner 

in whfoh it epsrates does not violate Sectien 3, 

(4) 0r Article 1.” 

****** 

.mIn sopplmonting #g letter or Yaroh 7, 1940, 

re~umWn& an opinion on the operatier of the San 

Antonio Olub, a owpomtfon duly inror eratsd ullder 

the 18~s or the State of Tsxaa, thfa o P ub operate& on a ooupvn ayrtoa whereby a member may secura 

a ooupoo be$L aontainfng twenty (20) oaupona, 0r 

which eaah oeapon ItO warth fifty centsi .50) eaoh 

nuking thd eeapon b4Ok 0@4t a total or i 10,oO. 

“In sach inataaos of where a member purohases a drink of whiskoy, mixed or otherwiao, 

it is necessary that the msllber and the olub 

atewar countersi n eaoh ooupon. Each drink ai 

whiskry 8 aither m x red or otherwise, has a oest 

or fifty cents ($,50) regardleas of tha typo 

drink porohased D 

“The club aamber does not pay for hiB coupon 
Hon. William B. Hensley, Page 6 (V-203) 

books until the end of the month, at which 

time the secretary bills him for the number 

of coupon books that he has received during 

the month. 

“The treasurer of the San Antonio Club 

purchases all liquors to be used by the club and 

payment ror these liquors is made from the funds, 

which were originally set up as explained in my 

previous letter. ’ 

*Honeys derived from the sale of coupon books 

is placed in the fund at the end of each month,* 

It appears to us that the primary question involved in this situation is whather there is a sale from 

the olub to the individual members when a drink of whiskey 

is served. The authorities discussed by the writer of 

Opinion lo, O-7139 will be usad bore, in so far as they 

are applicable. 

Krnalrek Y. State, 41 3. 1. 612 (Court of Criri 

inal Appeals) holds: 

*The question here is whether the sale of 

intoxicants by the managing steward or barkeeper 

of the club to one of’ the aembers of said club 

seme to an individual meaber,’ ior whioh he either 

paid tho oeeh, or became responsible therefor. D 

0 0 0 e Thir is not a oase where parties contribute sums of aonep and purchese intoxicants therewith, and divide them prorata amDnq themselves; 

but it is a transaction where the common assets 

of a oontinuing business are used to replenish 

the goods sold in that business. o 0 0w 

(Wmphasis our8 ., 1 

Feige 1, State, 95 3.. 1, 506 (Court of Crirfn81 

Appeals) s holds ‘. 

*In any event - .I-d--Z--Ad----- accondinp to our view, tl& 
Hon. William W. Menaley, Page 7 (V*803) 

i3ht 

the beer on its own behalf in Ft. Worth, and if at 

any time the dorpontion had failed and become 

subject to b;ledutioB, the bear and pregsrty ot the 

same could have been seized for the debts oi’ suah 

corporetioa. When the beer was brought irem Ft *. 

Adaaa v. Stat., L45 8. W. 940 (Court ei Crieiinal Appeals) , holdr: 

“The questiens presented for Ow asn8ideration,ara but two: Did the transaotion eenatitute 

a sale wlttin the maani 

T 

or our law6, and, . . . 

The evilenas shows that he inuorpanted club purchased liquors in bulk with naoaay in th6 treasury, 

end sold or dispensed the liquors to its members 

at the u.mal or customary priaa. This we thfnk 

osnstitutes a sal.e under all the rules Or law. 

fr my giomn nukaber Or persrpag orgaqif4e un ~.ss(P- 

~ciatien uniter any name whatsoever with the uadarProm the authoritiee cited, supra, and aany other 

autherities faund by a oareful asarCh in conneotion with 

th0 quaatle~a 5nvalnM in tlsis request, we are af the opinion that m&&er the ijets w&i&, as stated at the outset, 

we ara neaaa~~iZy #MN&&M to 06 establishmd, re is a 

*iaalew or whfs.key fz?om the 0luh or steward au 

the club to the members. The facte stated im t f;iE 

~~oasea are not ~iseiail~ar to the facts involved fn the epe&tfon ef Zhe San Antonio Club as set out In the letters 

from the WonerebLe Bert Ford. Under such hsl&iElps , the 

aanner in wMOh t$b Sea Aattonio Olab la beiq eantfacted 
, ,., 

Eon. William W. Hensley, Page B (V-203) 

16 olearly in violation of Article 666-3, Paragraph (a) 

e? T~rnon’s Penal Coda of Texas. Tha money whioh each 

mamber’places in the WpoolW, becomes the common property 

or the club, Andy the liquor purohaae& by the treasurer 

with this money becomes the property of the club. Therefore, when a drink is served to an individual member and 

he beoomes llabla for the “ooupon” given for suoh drink, 

it Is a wealc* or the property or the club to the member. 

We concede that then members or the San Antonio Club a.0 

not have the intention or dianorition to violate the provisions or the Texas Liquor Control A&, but, in visw 0r 

the authorities relative to what oonatitutes a sale in 

6uoh cases, we are bound to hold that such aonduot doer 

amount to a violation of ths herslnabove mentioned prevision6 0r the Penal Coda. 

Upon determining that a %ala” is made by the 

Club or by the steward, as agent for the club, to the 

members, the next question &nvolved is whether such a 

sale under Artiolo 666-3, Ptirrgraph (a), Vornong6 Penal 

Oode of Texas, would be prohibited in a vwft? area as 

well as in a “dry” area, inasmuoh as the violat5ona In 

the &ted cases ocourred In a “dry” area. This is speoiffoally passed on by th@ Court of Criminal Appeals in 

~fjhelton v. State, 138 S. W. (Sd) 1078, in the following 

l*nguage : 

“This ir a casr ot rlrat Impression when 

we are askad to dotealma whether or not .the 

I~W rorbiaaing a ~) OP Ol IP 1605f l g p liteo 6 th0 

‘wet’ or to the ‘dry* twritory iifhin th6 #tat@. 

We wish to point out that the method of operation involved hers is to be distin@sheQ ‘from t_hs one, 

;,“l;;$o;reT~;~~rmed, ie beiy wed at tha Hou6tOa Club 

and other o ubs over the State, whera 

indivldual’looks& ere provided for the moffbers of tha 

crlub. In those situations, there would not be a sale sf 

liquor as there the individual would be providiq his own 

liquor, and it would not be purchased by the treasurer 

out or funds belonging to ths club thereby becoming the 

property of the olub. 

. 
. 

” 

Hon. William N. Wensley, Page 9 (V-203) 

This oplnlen ia not to be ,~oenatrued as ovcrruling ronohtr Op5.aibn Wo. o-7139, but snly that, suoh 

opinion is qualified by our taking various aondltiems 

as established rather than leavinq them for dstsniration by a jury. 

If an orricm or a private club purohasee 

liquor from fumds i’u&ilshed by individual meubers to the olub, such. liquor becomes the oommon property of the, club. When B drink is aelivered b t e stew rd ~to a member a.nd i 

for ii +i&$&$kidsQ by the dl;M 

stitutes a the ftiaitinuai 

member. &i&k v: St:t: ,‘41 i. 1. 612* Feiga 

0. State, 95 3, W. SOS; Ada@@ v. State, i4S S.W. 

940.) Such a sale is in direct vlalation at the 

provisions of Artfole 666-3, Paragraph (a), Vernon’s Penal code, of Texas. This statutory pxbhibition applies equally to “wet” areas end “dr * 

areas. (Shelton v. State, 136 s. w. (26) 1078.3 

3; 

: ’ 

$*, Yours very truly 

‘ATTORNEY GENERAL OF TEXAS 

By --&&sjtgtf 

Assistant