Untitled Texas Attorney General Opinion

Honorable William D. Pratt Opinion No. C-754 County Attorney Palo Pinto County Re: Validity of Ordinance Mineral Wells, Texas of the City of Mineral Wells which makes it unlawful to sell alco- holic beverages on Sunday in the city Dear Mr. Pratt: limits. You recently requested an bpinion of this of- fice concerning the validity of the following ordinance adopted by the City of Mineral Wells making it unlawful to sell beer or any alcoholic beverage on Sunday In the city limits of Mineral Wells, Texas. The pertinent parts of the ordinance are as follows: “4. It shall be unlawful for any person to directly or indirectly sell, offer for sale, barter, offer to barter, exchange, or offer to exchange, give, or offer to give, deliver, or offer to de- liver, serve, or offer to serve, beer or any alcoholic beverage, by retail for consumptionon or off the premises, within the corporate limits of the City of Mineral Wells, in Palo Pinto County, Texas, between the hours of 1:00 A.M. of any Sunday and 7~00 A.M. of the fol- lowing Monday morning. “5. Any person violating any pro- vision of this Ordinance shall be guilty of a misdemeanor,and upon conviction shall be punished by a fine of not less than $25.00, and not more tha.n$200.00, and each day of such violation shall constitutea separate offense." The authority of cities to regulate the sale of beer is found In Article 667-10 l/2, Vernon's Penal Code. -3623- - . Honorable Willlam D. Pratt, Page 2 (C-754) The pertinent part of such statute Is as follows: "All Incorporated cities and towns are hereby authorized to regulate the sale of beer within the corporate llm- its of such cities and towns by charter amendment or ordinance,and may thereby prescribe the opening and closing hours for such sales; such cities and towns may also designate certain zones in the residential section or sections of said cities and towns where such regulations for opening and closing hours for the sale of beer sha,llbe observed or where such sales may be prohibited. All in- corporated cities and towns and all Com- missioners Courts when acting under au- thority of this section are hereby au- thorized In adopting charter amendments, ordinances, or orders to distinguishbe- tween retailers selling beer for consump- tion bn the premises where sold and those retailers, manufacturersor distributors selling not for consumptionon the prem- ises where sold, and to provide for separate and distinct regulations.Noth- ing herein shall authorize any incorporated city or town to extend by ordinance or charter the hours of sale as fixed by the state law." The foregoing statute gives cities the authority to shorten the hours of sale of beer as fixed by State law. The statute f,urthergives cities the authority to prohibit the sale of beer in a particulararea. Moore v. McCarver, 240 S.W.2d ~443 (Tex.Clv.App.1951). State law pr6hlblts the sale of beer on Sunday at any time between the hours of 1:00 o'clock A. M. and 1:00 o’clock P.M., and on any day except Sunday at any time prior to 7:00 o'clock A.M. Article 667-10, V.P.C. The punishment prescribed by State law for selling beer with- in the prohibited hours Is a fine of not less than $100.00 and not more than $l,OOO.OO, or by Imprisonment in the county jail for not more than one year, or by both such fine and Imprisonment. Article 667-26, V.P.C. -3624- -. - Honorable William D. Pratt, Page 3 (c-754) A city ordinance that prescribesa different and lesser nunlshmentthan that fixed bJrthe State law for the same uniiwful act Is void. Ex part; Wataon;~225S.W.2d 850 (Tex.CrIm.1949). The Court of Criminal Appeals, In Young v. State, 267 S.W.2d 423 (Tex.Crlm.195&), declared a city ordinance of the City of McGregor, which was very similar to the ordinance before us, void because It attempted.toprovide a lesser punishmentthan provided by State law for selling beer on Sunday between the hours of 1:00 o'clock A.M. and 1~00 o'clock P.M. and on Monday prior to 7~00 o'clock A.M. The Court recognized the right and authorityof the City to prohibit by ordinance the sale of beer on Sunday from 1:00 o'clock P.M. to midnight on Sunday, but struck down the entire ordinancebecause it included hours on Sunday and Monday that were prohibited by State law with a greater penalty than provided in the ordinance. The Young case, supra, Is squarely itipoint with the question before us, and therefore the Mineral Wells Ordinance submitted to us is void for the reasons set forth in such case. SUMMARY A city ordinance that prescribesa differentand lesser punishmentfor selling beer during prohibitedhours than that fixed by Article 667-10, V. P.C., for the same unlawful act is void. Yours very truly, WAGGONER CARR Attorney General of Texas By: Assistant Attorney General DIiC/br APPROVED: OPINION COMMITTJ3E -3625 Honorable Wllllam D. Pratt, page 4 (C-754) W. 0. Shultz, Chairman tinny Zwiener Charlee Swanner Halcolm Qulak Pat Bailey APPROVEDFORTHEATTORNEY GENERAL By: T. B. Wright -3626-