Untitled Texas Attorney General Opinion

Honorable R. E. Swift Opinion No. ~-1418 County Attorney Anderson County Re: Does Article 13a, Section 1 Palestine, Texas of the Charter of Palestine, Texas, prohibit the sale.of beer outside the area as zoned by said Section of the Dear Mr. Swift: Charter? You have asked us for an opinion on the following question: "Does Article 13a, Section 1 of the Char- ter of Palestine, Texas prohibit the sale of beer outside the area as zoned by said Set- tion of the Charter?" In order for us to answer this question you submitted the fol- lowing facts: The City of Palestine on April 7, 1962, by local option elec- tion legalized the sale of all alcoholic beverages for off-premise consumption only. We have been furnished a certified copy of the Charter of the City of Palestine, Article 13a, Section 1 of which provides as fol- lows: " "It shall be unlawful to.locate, maintain, or conduct any place where spM?itous, vinous or malt liquors or medicated bitters capable of producing intox3cation are sold at retail within the corporate limits of the City of Palestine, ~Texas, a8 they are now, or as they may hereafter be established, except on the following streets, to-wit: Spring Street be- L tween Tennessee Avenue and Houston Stre~et; Main Street, between Tennessee Avenue and where It Intersects with Avenue A; Oak Street, between Tennessee Avenue and where it inter- sects with Avenue A; Sycamore Street, between the International and Great Northern Railroad and where it intersects with Spring Street; Avenue A, and that portion of Church Street between its intersection with Avenue A and Its intersection with Lacy Street.".

Honorable R. E. Swift, page 2 Opinion No. WW-1418 i

The City Charter of the City of Palestine Is a legislative act of the legislature of the State of Texas, and the section abcvs quoted is an amendment adopted by the 31st Legislature and approved by the then Governor, T. M. Campbell, in 1910. lhe certified copy furnished this office by the City Secretary reveals that the above section Is still carried as a part of the Charter. Although Article 667-m+ V.P.C., as presently’codified, grants cities the power to regulate the sale of ‘beer asdeflned’in the Texas Liquor Control Act” by charter or ordinance, It does not af- feet the charter provision at hand because the charter at hand does not deal with’beer” ~1s such, nor does it deal with “any malt beve- rage containing cne-half of one percent or more of alcohol by volume nor more than four percent of alcohol by weight”, (the lat- ter being “beer” as defined In the Texas Liquor Control Act). It is, therefore, necessary to consider whether beer Is included wlthn the term “splritous, vlnous or malt liquors or medicated bitters capable of producing Intoxication” as used In the.charter. In answering this question we must look not only to the charter itself but to the various subsequent Texas Liquor Control Acts as well. Stanford v. Butler 181 S.W.2d 269, 142 !bx 692, 153 ALR 1054; 82 CJS Sec. 360 (p. ti7). That beer Is. not Included within the terms splrltous or vlnous liquors or medicated bitters capable of producing Intoxication is too apparent to merit discussion. If the sale of b.eer outside the designated area is prohibited by the above charter provision It must be by virtue of beer being Included within the term “malt liquor”. Undoubted1 7, at the time the charter provision was adopted by the legislature,. ‘beer” was included within the term “malt liquors. ” Mater v. State, 21 S.W. 974 (Clv.App. 1893); Fl uetia v. State, 159 S.W. lltlll (T Crim. 19131; Claunch v. State,-f?nTs Grim. 1917); T%? v. State, 260 S W 1043 (T Grim. . l3ubank v. State, 2tIb 3 W 234 (Tex. Grim: 1926); zt;tt v. State, w(Tex. czl. 1929). In this connection, however, it should be pointed out that the above cases were decided prior to the passage of the first l’ex@ Liquor Control Act and did not refer to the charter provision at hand. The primary question before us Is whether theaffect of the various Texas Liquor Control Acts cited below was to amend or. Par- tlally repeal the above quoted special charter. In 1933, the legislature defined beer as “beer containing One- half (&) of one per cent (1%) or more of alcohol by volume and not more than three and two tenths percenturn (3.H) of alcohol by wei@ (Acts 43rd Legislature, Regular Session, Chapter 116, Sec. l(d) pa@ 288.)

Honorable R. E. Swift, page 3 .OpinionNo. W-1418

In 1935 the legislature defined .beer as "any malt beverage containing one-half (3) of one Per cent (1s or more of-alcohol by volume and not more than four percentum 14s) of alcohol by weight." (Acts 44th Legislature, Second Called Session, Chapter 467, Article II, Section l(c).) The 1935~Act doesnot.define "malt liquor" but.lt does de- fine "liquor!' as "any alcoholic beverage containing alcohol In excess.of four per cent (4%) by weight . .~ ." (Acts.44th Legis- lature, supra, Article I, Sectlon3a, page 1796), and this deflnl- tion of "liquor" has been carried forward to the present Texas Liquor Control Act. The first.leglslatlve definition of "malt liquor" in Texas is found In the 1949 amendment to the Texas Liquor Control Act where It is definer. as "a malt beverage containing more than four percentum.(4$) of alcohol by weight." Acts 41st Legislature, Regular Session, Chapter 543, Section 1 13), page 1013; presently codified as Article 666-3a(L3), V.P.C.) Article II, Sec. 1 of the 1935 Texas Liquor Control Act, (44th Legislature, Second Called Session, Chapter 467, H. B. No. 77) provldes.ln part: "Unless otherwise herein specifically <" provided by the terms of this Act, the.manu- facture, sale and distribution of'beer, as ~. hereinafter defined, shall be governed -ex- cluslvely by the .provlslons of Article of this Act, . . .'I (Rnphasls added) This provision has been d&ried forward virtually unchanged to the present Texas Liquor Control Act. (Art. 667-2 V.P.C.) We must presume that the subsequent statutes were enacted by the legislature with full knowledge of the existing law including the cha>,;-r provision at hand. Freels v. Walker, Tex . 26 S.W.2d 627 (1 30); McBride v. Clayton, TeX. m S.W.2d 125 (1942 3 . They must be construed In conjunction with each other and should be construed so that they operate In harmony. Freels v. Walker, supra; McBride v. Clayton, supra. In accordance with the above principle and in order to give effect to all the legislative acts we hold that the effect of the various legislative acts subsequent to the charter provision at hand was to eliminate "beer" as defined therein from the category of "malt liquor". This resulted, In effect, in an amendment of the charter and it does not prohibit the sale of "beer" (i.e. any malt beverage containing one-half (3) of one per cent (1%) or

Honorable R. E. Swift, Page 4 Opinion No. WW-1418

more of alcohol b volume and not more than four per cent (4%) cf alcohol by weight T outside the designated area. SUMMARY Article 13a, Section 1 of the Charter of the City of Palestine has been amended by Art. 667-1(b) ViP.C. and does not prohibit the sale of "beer" as defined In Article 667-1(b), outside the area des- cribed in the said charter provision. Very truly yours, WILL WILSON Attorney General of Texas

B Assistant SRW:rk 0 APPROVED: OPINIONCOMMITTEZ W. V. Geppert, Chairman

Sonn iieeves Marvin Thomas Charles Lind REVIEWEDFOR TRE ATTORNEY GENERAL BY: Leonard Passmore