THE ATTORNEY GENERAL
QFTEXAS
September 11, 1969
Hon. 0. N. Humphreys, Jr. Opinion No. M-471
Administrator
Texas Liquor Control Board Re: Construction of H.B. 1078,
Austin, Texas Azts. 61st Legislature,
R.S., 1969, concerning
Dear Mr. Humphreys: Wholesaler's Permit.
You have requested an opinion concerning the construction
of H.B. 1078, Acts 61st Legislature, R.S., 1969, and have
specifically, requested an answer to the following four (4)
questions:
"Question No. 1, In Section 1, Chapter 552, Acts of
the blst Legislature, Regular Session, 1969 (herein-
after referred to as House Bill 1078), is the Whole-
saler's Permit therein referred to restricted ex-
clusively to the permit authorized in Article 1,
Section 15(6), Texas Liquor Control Act, and exclud-
ing the General Class B Wholesaler's Permit authorized
by Article 1, Section 15(7),T.L.C.A., and the Local
Class B Wholesaler's Permit authorized by Article 1,
Section 15(7a), T.L.C.A.?
"Question No. 2. If the answer to Question No. 1 is
I=', is House Bill 1078 unconstitutional as making
an unreasonable and arbitrary discrimination against
the holders of General Class B Wholesaler's Permits
and Local Class B Wholesaler's Permits?
"Question No. 1 Is House Bill 1078 unconstitutional
by being partially in conflict with Article 16, Section
20, of the Texas Constitution?
"Question No. 4. If House Bill 1078 is not unconsti-
tutional. mav the holder of a Wholesaler's Permit in
an area wet for the limited purpose of the sale of
beer make sales and purchases of liquor if title to
such merchandise passes: (a) within the limited wet
area where he is located; or (b) within another area
where the sale of all alcoholic beverages is legal?"
We have concluded that the first question must be answered in
the affirmative. House Bill 1078 amends Article 1, Section 4,
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-
Hon. 0. N. Humphreys, Jr., page 2 (M-471)
Texas Liquor Control Act, by adding a new subsection (b-l),
which reads as follows:
"Anything in this Act to the contrary notwith-
standing, it shall not be unlawful for any
person in any area wet for the limited purpose
of the sale of beer, or the sale of beer and
wine to apply for and be issued a Wholesaler's
Permit, as described in Section 15, Subsection
(b) of Article 1 of this Act, and to exercise
all rights and privileges of such permit holders."
Article 1, Section 15(6),Texas Liquor Control Act, provides:
"Wholesaler's Permit. A WhQlesaler's Permit shall
authorize the holder to:
(a). Purchase and import liquor from distillers,
brewers, wineries, wine bottlers, rectifiers and manu-
factures, who are the holders of Non-resident Seller's
Permits, and their agents who are the holders of Manu-
facturer's Agents Permits and purchase same from other
wholesalers within this State;
(b). Sell liquor in original containers in which
received in this State to retailers and wholesalers
authorized to sell same;
(Cl’ -Sell liquor out of State to qualified persons;
(a)- It is provided that a personsapplying for a
Wholesaler's Permit shall be authorized to include in a
single application his petition for such permit, as well
as for private storage, storage in a public bonded ware-
house, and private carrier's permit, and~any other permit
which he is qualified to receive under the provisions of
this Act. Provided, however, that such wholesaler shall
pay the fees prescribed by this Act for each such permit
covered in such Wholesaler's application. The same sub-
division shall apply to a Class B Wholesaler's, Rectifier's,
Brewer's, Distiller's, Class A Winery, and Class B Winery
Permits.
The annual State fee for a Wholesaler's Permit shall
be One Thousand Two Hundred and Fifty Dollars ($1,250)."
(Emphasis addedj.
The Wholesaler's Permit referred to in H.B. 1078 appears to
us to be a new class of permit and by the clear language of H.B.
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. I
Hon. 0. N. Humphreys, Jr., page 3 (M-471)
1078, one must refer to Section 15(6) of Article 1 for a descrip-
tion of the permit and as to what a holder thereof is entitled
to do. Since the Legislature is vested with power under Article
16, Section 20, Constitution of the State of Texas, to regulate
intoxicating liquors in this State, it has the power to provide
for a new type of permit, and it need not, in particular, be
specifically designated and contained in Article 1, Section 15,
(the permit section of the Act). Since H.B. 1078 is a "Permit
Act" and the General and Local Class B Wholesalers are not in-
cluded, the question of "exclusion" does not arise.
With reference to the second question, Article 16, Section
20, of the Constitution of Texas delegates to the Legislature
the power to regulate the manufacture, sale, possession and
transportation of intoxicating liquors. H.B. 1078 comes within
the power of the Legislature to create classes of permits and
set up criteria by which one may obtain such a permit. Attorney
General Opinion No, WW-1126 (1961).
H.B. 1078 does not make an unreasonable discrimination
against General or Local Class B Wholesalers. Nothing in the
Act would prevent a person who presently holds a General or
Local Class B Permit from making application, paying the fee, and
obtaining a H.B. 1078 Permit, since the Act provides that s
person may apply for this permit.
We must, therefore, answer the second question in the nega-
tive.
We now proceed to consider the third question. In addition
to the power delegated to the Legislature to regulate the manu-
facture, sale, possession and transportation of intoxicating
liquors, Article 16, Section 20, of the Constitution of Texas,
provides as follows in Subsection (b):
"(b) The Legislature shall enact a law or laws
whereby the qualified voters of any county, justice's
precinct or incorporated town or city, may, by a
majority vote of those voting, determine from time to
time whether the sale of intoxicating liquors for
beverage purposes shall be prohibited or legalized
within the prescribed limits; and such laws shall con-
tain provisions for voting on the sale of intoxicating
liquors of various types and various alcoholic content."
By analogy, H.B. 533, Acts 57th Leg., R.S. 1961, ch. 478,
p. 1066, allowed holders of brewer's or manufacturer's permits in
wet areas to continue to operate if the area was voted dry pro-
vided they did not sell contrary to the local option election,
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1 .
Hon. 0. N. Humphreys, Jr., page 4 (M-471)
Attorney General Opinion No. ~-11.26, supra, stated that H.B.
533 did not violate Article 16, Section 20, of the Constitution
of Texas, by allowing such permlttee to continue to do buslness
after a local option election in which the location was voted
dry, provided he 'didnot sell in the dry area. WW-1126 is by
implication interpreting --
sale under the local option law to
mean: sale by retailers for purposes of consumption in a dry
area and this is the type of sale prohibited by the Consti-
tution. This interpretation has never been challenged in court
and there is no legal authority which is contrary thereto. Our
courts have given great weight to Attorney General's Opinions
and follow them unless clearly wrong. Thomas v. Groebl, 147
Tex. 70, 212 S.W.2d b25 (1348); Royalty v. Nicholson 411 S.W.2d
-565- fTex.Civ.Aon.
. 1967. error ref: n.r,e.) H.B. 107 does not
include sales Gbntrary-to local option dictates and'we feel the
holding in Attorney General's Opinion WW-1126 applies. It is the
policy of this office to follow earlier opinions on the same
subject where not clearly erroneous. Attorney General Opinion
No. o-1659 (1939).
We must answeryour third question in the negative, relying
upon Opinion No. WW-1136.
In response to the fourth question, we are of the opinion
that the passage of title is not controlling of any issue after
consideration of our answer to Question No. 3 and hence feel it
unnecessary to answer Question No. 4.
gUMMARY
The Wholesaler's Permit referred to in
H.B. 1078 is restricted to the Permit author-
ized in Article 1, Section 1.5(h), Texas Liquor
Control Act, as to the rights and privileges
of the permit holders, H.B. 1078 does not make
an unreasonable or arbitrary discrimination
against the holders of General Class B Whole-
saler's Permits and Local Class B Wholesaler's
Permits. ,H.B. 1078 is constitutLona1 and does
not conflict with Article 16, Section 20, Consti-
tution of the State of Texas.
Ve,p@ruly yours,
/ 627zzi=
C. MARTIN
ey General of Texas
Prepared by Charles R. Parrett
Assistant Attorney General
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. ,
Hon. 0. N. Humphreys, Jr., page 5 (M&71)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice Chairman
Ronald Luna
Bob Lattimore
Tom Bullington
Gordon Cass
Meade F. Griffin
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
Nola White
First Assistant
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