# BE mf.-o~~~~ GENERAL OFTEXAS

PRICE DANIEL ATTORNEY

GENERAL

Honorable Wfllfam N. FIansley Criminal District Attorney Bexar County SanAntonio, 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 theretos Dear Sir: Your letter of March 20, 1947, reouesting the oplnlon of thls department 61sto 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:

*qWehereby 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 

### ityouwould 

### 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 ajury0 Amars derinfte and posPtivrEon. 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,

n D0 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 ajury? 

### orby the court in absence of a jury, andthis maybe subject to one construction by a given jury panel and to an entirely different interpretation by another9 dependfug upon the oredfbilfty andweight placed uponthe witnesses and their testimony, circumstantial avfdence and other matters which cause the minds of reasonable mento 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 .aprime 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 ~ofthe 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, 

### isthe 

### la~s8eOf approxi~taly 1300square feet of spaae laoatad on the third floor of the Gunter Hotel, vThfa space 

### wasleased to the SanAntonio 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

,., .! “iHon. 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 whoare rrsponsible ior the general upkeep of the olub; and these two stewards are hired by and their salaries are paid by the SanAntonio Club, Officers of the club andmembersof 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 memberspay 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 membersand their guests D

“The bar is operated under what is knswnas the bar pool plan, Zaah of the seventy-five club membershave 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 madeby the treasurer from the holder of ARetail Package Store Permit0 -In withdrawing, liquor at the bar flom this pool, each member uses a ooupon book, Zaah coupon entitles the memberto ane drink.

“All liquor purchased for the club is plaaed on the back bar or is ‘stored in a small roambehind the bar.

“Club membersobtain aoupon boaka from the etewards o.

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

"At the end of each monththe club memberis billed for the numberof coupon books he has been issued, "There ara no guest cards for the SanAntonio 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 membermayserv6 hi8 or hei guest a drink, using his or her coupon. Nomoneyat 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 Boladies permitted before 5 p.m. Emrescorted ladioa permitted at any Membersrequired to limit their guest& to four -- if more, contact the bar I%- garding sarvioe before arriving with the guests. Nogambling with guests at any time. Nopoker allowed. Club open iTom 11 a. n. to 18midnight. Noslot machines or niokslodeona permitted on the premises. Nolong distance phone calla or wires perraitted from house phones.
~;em;~~rs or guesti allowed behind

0 Membersaannot mix their owndrinks. Romemberahall 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 amember. Yembera are not permitted to bring their offn liquor.Hen. w/11lamNJ.Hensley, Page 5 (V-203)

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

“‘Seotieu 3,(a) of ’ Article I. The tern ‘*open sa10on*~as used in, this Act, meansany place where any alcohelio beverage whatever, aaanufactured in whole or in part by meatasof the proeass of distillation, or any liquor cempoaed or oeapeunded in part 0r cliatinsd epirite, is sold or ofrerad rOTarle for beverage purposes by the drink QTin broken or unmaled oontainers, or any plsoe where any auah liquors are sold or offered for sale for humanconsumption 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 SanAntonio Club that Attorney General’8 Oplaion No. ,O-1145dooa 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.” ****** .mInsopplmonting #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 P o ub operate& on a ooupvn ayrtoa whereby a membermaysecura a ooupoobe$L aontainfng twenty (20) oaupona, 0r which eaah oeapon ItOwarth fifty centsi .50) eaoh nuking thd eeapon b4Ok 0@4t a total or i 10,oO.

“In sach inataaos of where a memberpurohases 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 8aither mred

x or otherwise, has a oest or fifty cents ($,50) regardleas of tha typo drink porohased D

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

books until the end of the month, at which time the secretary bills himfor the number of coupon books that he has received during the month.

“The treasurer of the SanAntonio Club purchases all liquors to be used by the club and payment ror these liquors is madefrom 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 memberswhena 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

semeto an individual meaber,’ ior whioh he either paid tho oeeh, or became responsible therefor. D 00 0 eThir is not a oase where parties contribute sumsof aonep and purchese intoxicants therewith, and divide themprorata amDnqthemselves; but it is a transaction where the commonassets 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 ownbehalf 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. Whenthe beer was brought irem Ft*.

Adaaav. Stat., L458. 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 naoaayin 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 

### giomnnukaber Or 

### persrpag orgaqif4eun ~.ss(P- ~ciatien uniter any namewhatsoever with the uadarPromthe 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, weara neaaa~~iZy #MN&&Mto 06 establishmd, re is a *iaalewor whfs.key fz?omthe 0luh or steward au the club to the members. Thefacte stated imt f;iE ~~oasea are not ~iseiail~ar to the facts involved fn the epe&tfon ef Zhe SanAntonio Club as set out In the letters from the WonerebLe Bert Ford. Under such hsl&iElps, the aanner in wMOht$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. Thamoneywhioh each mamber’places in the WpoolW,becomes the commonproperty or the club, Andy

the liquor purohaae& by the treasurer with this money becomes the property of the club. Therefore, whena drink is served to an individual memberand he beoomes llabla for the “ooupon” given for suoh drink, it Is a wealc* or the property or the club to the member. Weconcede that thenmembersor the SanAntonio 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, weare bound to hold that such aonduot doer amount to a violation of ths herslnabove mentioned prevision6 0r the Penal Coda.

Upondetermining that a %ala” is madeby 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 weare askad to dotealma whether or not .the I~Wrorbiaaing a~)OPOIP l 1605f 

### l gplie6 to 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_hsone, ;,“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,~oenatruedas ovcrruling ronohtrOp5.aibnWo. o-7139, but snly that, suoh opinion is qualified by our taking various aondltiems as established rather than leavinq them for dstsniration by ajury.

If an orricm or a private club purohasee liquor from fumds i’u&ilshed by individual meubers to the olub, such.liquor becomes the oommonproperty of the, club. WhenB drink is aelivered b t e stew rd~toa member a.ndi 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 

### verytruly

‘ATTORNEY

GENERAL

OFTEXAS 

# By --&&sjtgtf

Assistant