Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 12,2003

The Honorable Fred Hill Opinion No. GA-0120
Chair, Committee on Local
Government Ways and Means Re: Whether a city council of a home-rule city
Texas House of Representatives may delegate to a municipal board the authority to
P.O. Box 2910 grant a variance under section 109.33 of the Texas
Austin, Texas 78768-2910 Alcoholic Beverage Code (RQ-0067-GA)

Dear Representative Hill:

You ask whether a city council of a home-rule city may delegate to a municipal board the
authority to grant a variance under section 109.33(e) of the Texas Alcoholic Beverage Code.’ TEX.
ALCO. BEV. CODE ANN. 8 109.33 (Vernon Supp. 2003).

Section 109.33 of the Alcoholic Beverage Code provides, in relevant part:

(a) The commissioners court of a county may enact
regulations applicable in areas in the county outside an incorporated
city or town, and the governing board of an incorporated city or town
may enact regulations applicable in the city or town, prohibiting the
sale of alcoholic beverages by a dealer whose place of business is
within:

(1) 300 feet of a church, public or private
school, or public hospital;

(2) 1,000 feet of a public school, if the
commissioners court or the governing body receives
a request from the board of trustees of a school district
under Section 38.007, Education Code; or

(3) 1,000 feet of a private school if the
commissioners court or the governing body receives

‘Letter from Honorable Fred Hill, Chair, House Committee on Local Government Ways & Means, to Nancy
Fuller, Chair, Opinion Committee, Office of the Attorney General (June 16, 2003) (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Fred Hill - Page 2 (GA-0120)

a request from the governing body of the private
school.

(e) The cornmissioners court of a county or the governing
board of a city or town that has enacted a regulation under Subsection
(a) of this section may also allow variances to the regulation if the
comrnissioners court or governing body determines that enforcement
of the regulation in a particular instance is not in the best interest of
the public, constitutes waste or inefficient use of land or other
resources, creates an undue hardship on an applicant for a license or
permit, does not serve its intended purpose, is not effective or
necessary, or for any other reason the court or governing board, after \
consideration of the health, safety, and welfare of the public and the
equities of the situation, determines is in the best interest of the
community.

Id. 0 109.33(a), (e) (V emon Supp. 2004) (emphasis added). You ask whether a home-rule city may
delegate the city council’s authority to grant variances under subsection (e) to a city board. Request
Letter, supra note 1. On its face, section 109.33(e) does not permit a “governing board of a city or
town” to delegate its authority to grant variances. On the other hand, a home-rule city is authorized
to adopt any ordinance whose enactment is not expressly forbidden by statute, and the delegation of
the authority to grant variances is not expressly forbidden by statute.

“A home rule city derives its power not from the Legislature but from Article XI, Section 5
of the Texas Constitution . . . . [I]t is necessary to look to the acts of the legislature not for grants
of power to such cities but only for limitations on their powers.” Proctor v. Andrews, 972 S.W.2d
729,732 (Tex. 1998) (citing Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641,
643 (Tex. 1975)). “While a home rule city thus has all the powers of the state not inconsistent with
the Constitution, the general laws, or the city’s charter . . . these broad powers may be limited by
statute when the Legislature’s intention to do so appears ‘with unmistakable clarity.“’ Proctor, 972
S.W.2d at 732; see also Dallas Merchant’s & Concessionaire k Ass ‘n v. City ofDallas, 852 S.W.2d
489,490-91 (Tex. 1993); City of S weetwater v. Geron, 380 S.W.2d 550,552 (Tex. 1964).

The legislature has narrowly circumscribed a home-rule city’s authority to regulate alcoholic
beverages. Section 109.57 of the Alcoholic Beverage Code provides, in subsection (b): “It is the
intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages
in this state . . . .” TEX. ALCO. BEV. CODE ANN. 5 109.57(b) (Vernon Supp. 2004). In Dallas
Merchant ‘s, the Texas Supreme Court held that the Alcoholic Beverage Code preempted a City of
Dallas ordinance that prohibited the sale of alcoholic beverages within 300 feet of a residential area.
Dallas Merchant ‘s, 852 S.W.2d 489. The court reviewed the history of the 1987 adoption of section
109.57 and observed that “[tlhe Legislature’s intent is clearly expressed in section 109.57(b) of the
[Alcoholic Beverage Code] - the regulation of alcoholic beverages is exclusively governed by the
provisions of the [Code] unless otherwise provided.” Id. at 49 l-92.
The Honorable Fred Hill - Page 3 (GA-0120)

In the situation you pose, the legislature has provided, in section 109.33(e), that the
“governing body” of a municipality is authorized to grant variances in the regulation of alcoholic
beverages. TEX. ALCO. BEV. CODE ANN. 9 109.33 (Vernon Supp. 2004). Delegation of this power
to a board that is subordinate to the city’s governing body would clearly conflict with the statutory
directive that vests this responsiblity with the governing body itself. Because, under the terms of
section 109.57(b), the Alcoholic Beverage Code “exclusively govem[s] the regulation of alcoholic
beverages,” and because exercise of the authority to grant variances clearly constitutes “the
regulation of alcoholic beverages,” we conclude that a home-rule city may not delegate to a
municipal board the authority to grant variances under section 109.33(e) of the Texas Alcoholic
Beverage Code.
The Honorable Fred Hill - Page 4 (GA-0120)

SUMMkRY

A home-rule city may not delegate to a municipal board the
authority to grant variances in the regulation of alcoholic beverages
under section 109.33(e) of the Texas Alcoholic Beverage Code.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee