The Attorney General of Texas
December 30. 1983
JIh4 MAl-YOX
Attorney General
Supreme CouH Building Honorable Mihe Westergren opinion No. JM-112
P. 0. Box 1254S Nnecer County Attorney
Auslln, TX. 78711.254S Room 206, Nueceo County Courthouae Re: Authority of a county or
51214752501
Tel41 SlWS74~1547
Corpuo Chreti, T+xar 78401 city to promulgate ordlnancea
Tale~oplw 512l475.0266 banning open container8 of
alcoholic beverage8 in motor
vehicles
714 J4ck4on. Suite 700
Mla4. TX. 75202-4506
2W7428B44 Dear. Mr. Westergren:
You have requeated our opinion ae to whether a municipality or e
4S24 Alberl4 Ave.. Sultq 160 county may, ban the possession of open containe.rs of alcoholic
El Paso. TX. 7WO5.27W beverages in motor ,vehlclee through an ordinance adopted by the city
Y@- council or an order.adopted by the commissionera court. We conclude
that the preemption provisions of the Texas Alcoholic Beverage Code
1001 Texar. SuIl4 700 preclude such an order or ordinance.
Houslon. TX. 77002G3111
715l22HSB5 Section 1.06 of the code provides in full aa follow:
1)08 Bradway. Sulle 312 Unless otherwise specifically provided by the
Lubbock. TX. 79401-3479 terma of this code, the manufacture, sale,
aw-747.5238 distribution, transportation. and possession of
alcoholic beverages shall be governed exclusively
4309 N. Tenth. Sultr B
by the provisions of this code.
McAllen. TX. 7S5ol.lBS5
512mS24547 We believe that this preemption provision ie very clear and simply
precludes a city or county from enacting e local ordinance banning the
possession of alcoholic beverages in~automobilee.
200 Maln PIu4. Bull4 400
San Antonlo, TX. 782052797
51212254191 .In your brief you assert that a city would have euch authority
under their general grant of power to paw ordinance8 for the public
health and welfare subject to the constitutional proviaion that
An Equal Opponunltyl
Alflrm4llv4 Action Employor
[Nlo charter or any ordiuancee paaaed under maid
charter ahall contain any provieion inconaiatent
with the Constitution of the State, or of the
general laws enacted by the Legislature of thin
State;
Tex. Const. art. XI, IS. See alao V.T.C.S. art. 1165. With regard to
counties you propose that a commissioners court order banning open
p. 470
Honorable Mike Weatergren - Page 2 (JM-112)
containers would.:be authorized by provisions of the newly codified
“county road and bridge act,” Acts 1983, 68th Lag., ch. 288. at 1431.
to be codified aa article 6702-l. aaction 2.301(a)(l) vhich provides
as follwa:
The commiaaionera court of any county may regulete
and restrict traffic on county roads and on other
county-owned land under its jurisdiction.
This section also requires a public hearing before the adoption of
traffic regulations and specifically authoritea the conmiealonera
court to adopt speed limita. load limits. and a. eyatem of traffic
controlled devices.
In the case of Royer v. Rltter. 531 S.W.Zd 440. 449 (Tex. Civ.
APP. - Beaumont 1975. writ ref’d n.r.e.). the court held that a local
ordinance passed by a city and vhich regulated the hours of sale for
liquor package stores conflicted with the predecessor Liquor Control
Act. The local ordinance prohibited the opening of a package store on
days and at times not prohibited by state law. The court recognized
five~“diatinct” areaa of municipal regulatory authority over alcoholic
beverages: (1) the adeeaemeat for local ,feea, (2) prohibiting sales
in residential aectione. (3) prohibiting sales near churches and
schoola, (4) regulating the aale of beer within the city limits,
adopting hours for the sale of mixed beveragee. See Alcoho:::
Beverage Code 8111.38; 105.03; 109.31 - .33. The courtheld that the
ordinance in question wae unauthorized by the &ate li.quor laws and
was inconsistent therewith. The court stated the following:
The Legislature. by granting to the cities
paver of control in five instances above set
forth, has . . . denied this power in any instance
not specified. There is no authority in the Texas
Liquor Control Act for the Ordinance under review.
Furthermore, this Ordinance is inconsistent
with the Act. It is true that the Legislature
stated when package stores are not to be open,
rather than the converse. But thcis merely one
way of stating when they m be open. When the
Beaumont Ordinance adds to the times they must he
closed, the Ordinance ie Inconsistent with the
statute.
. . . .
If the Legislature had intended for the City
Council to have the authority to extend the time
of closing or opening of package atoren from the
p. 471
Honorable Mike Westergren - Page 3 (JM-112)
state provision, it could have said so. Eaving
failed to do so, we believe they [the Legialatura]
intended the proviaion for closing in the act to
be ltateuide and exclusive. (Rmphaaia in
original).
Roger v. Ritter. m at 449-50. Baaed on the Royar case. we
conclude that the lcgialatura has not authorized cities and countiea
to adopt an open container ordinance.
SUUUARY
A city or county is prohibited from adopting a
local ordinance banning the poaaesaion of open
containers of alcoholic beverages in motor
vehicles. I
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Aasiatant AttONey General
Prepared by David Brooks
Assistant Attorney General
APPROVED
:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Floellinger
Nancy Sutton
p. 472