THE
August 28, 191
Hon. Coke R. Stevenson, Jr. Opinion No. v-1259
Administrator
Texas Liquor Control Board Ret Is person owning in-
Auqtin, Texas terest in business
holding beer distrlb-
utor'0 license ellgi-
ble'~for employment by
Texas Liquor Control
Dear SIP: Board.
Your request for an opinion ask8 whether a person
who owna an interest in a beer distributing buSine88 con-
ducted under a license issued by the Texas Liquor Control
Board is eligible for employment by the Board.
Article 666-5, V.P.C., in so far as pertinent to
your inquiry, provides that:
"No person shall be eligible for appoint-
ment nor Shall hold the office of member of the
Board, nor be appointed by the Board, nor hold
any office or position under the Board, who has
any connection with any association, firm, person,
or corporation engaged in or conducting any alco-
h2 OP who holds
8tOCkS or bond8 therein, or who ha8 pecuniary in-
terest there& nor shall any such person receive
any commission or profit whatsoever from or have
any interest whatsoever in any purchase or Sale8
of any alcoholic liquors. D . e
"The Board or Administrator shall appoint
all necessary clerks, stenographers, inSpeCtOr8,
and Chemists, and other employees to properly
enforce the provisions of this Act.
'No person shall be eligible for any ap-
pointment who has any financial connection what-
ever with any person engaged in or conducting
any liquor business of any kind, or who holds
stock OP bonds therein, or who has any pecuniary
interest therein, nor shall any such person re-
ceive any commission or profit whatever from, or
Hon. Coke R. Stevenson, Jr,, page 2 (v-l%g)
have any interest whatsoever In, the pur-
chases or sales made by pers~ons authorized
by this Act to manufacture, purchase, aelj;,
or otherwise deal in the llcuor business,
(&UphaSiS Supplied throughout opinion.)
your question turns on whether a beer bUSine88
18 a liquor business within the meaning of Article 666-5.
That question arises by reason of the deflnitiod of
"liquor" contained in Article 666-se, V,P.C., that:
"liquor' shall mean any alcoholic bev-
erage containing alcohol in excess of four
(4) per centum bx weight, unless otherwa
indicated. . o o
"Any definition contained herein shall
apply to the same word in any form.
The definition of 'beer" contained in Article 667-1,
V,P,C,, is:
"The term 'beer' means a malt beverage
containing one-half of l$ or more of alcohol
by volume and not more than 4% of alcohol by
weight, and shall not be inclusive of any
beverage designated by late1 or otherwise by
any other name than beer.
"ALcohollc'Beverage" is defined in Article 666-3a to mean
alcohol and any beverage containing
i&k ihan one-half of one per cent (& of .W
of alcohol by volume which is capable of use
for beverage purposes, either alone or WheU
diluted."
If these definitions control and apply to the word llauor,
as used in Article 666-5, then a strictly bm bU8ineSS
would not be a liauor business within the provision8 Of
this Article and a person owning an interest in a beer
business would not by reason of Article 666-5 be ineligi-
ble for employment by the Board,
We are of the opinion that the word 'liquor,n
as used in the quoted portion of Article 666-5, 18 not
limited to the technical definition as containe$i In
Article 666-3a, but Is used as generally descriptive of
those businesses dealing in alcoholic beverage8 which
.
Han, Coke R. Stevenson, Jr., page 3 (V-1259)
the Texas Liquor Control Act subject8 to regulations
by the Texas Liquor Control Board.
The eligibility provisions in Article 666-5
were contained In the first comprehensive regulatory
act adopted In 1935. H. B. 77, Acts 44th~ Leg., 2nd
C.S. 1935, ch. 467, pa 1795. While substantially the
same technical definitions of "li$uor" and nbeer' were
therein also contained, the word liquor" was used at
times in the technical sense of the definition and at
other times in a general sense meaning beverageS eon-
taining lesser amounts of alcohol. Subsequent amend-
ments have substituted the broader term "alcoholic
bevePagesn for the word 'liquor" In many provisions of
the Act, but there is no indication that the meaning
of the word "1Iquor" in Article 666-5, where It remains,
has been changed. The meaning Is to be determined from
the context in which it Is used, and where the context
indicate8 the broader significance the meaning, to use
the language of the definition Is, "OthePwise Indicated."
Examination of the 1935 Act illustrates the original
significance of the term "liquor business of any kind"
as contained therein to include a beer business, which
meaning we conclude is the same today.
The conclusion indicated is borne out in the
caption of the 1935 Act, That dct regulated all kinds
of alcoholic beverages including beer, yet the caption
described it as "regulating the traffic in alcoholic
liquors," as creating a "Liquor Control Board," a8 pro-
viding for local option elections a8 to the sale of
."intoxicating liquors having various alcoholic contents,"'
and as providing for permits $0 engage "in the various
phases of the liquor traffic. Nowhere in the caption is
'beer" mentioned, yet elaborete regulation of beer traf-
fic is established in the Act. It was obviously consid-
ered by the Legislature as one of the "kinds" Of "liquor"
buSines8, The phrase "liquor b&Sine88 of any kind" bears
close resemblance to the phrases used in the caption to
indicate regulation of the "various phases of the liquor
traffic" and sale of "liquors having various alcoholic
contents," which obviously included 'beer".
Again, in the emergency clause, traffic in beer
was certainly contemplated by the general Statement8 of
the need for early effectiveness of the Act. It refers to
the adoption of the constitutional amendment legalizing
the sale of "liquor" in wet areas and recites the fact that
traffic In "liquor" was then unregulated. Both statement8
Hon. Coke El. Stevenson, Jr., page 4 (v-1259)
applied in fact to beer sales and traffic.
The word "liquor" was used exclusively through-
out Section 6 of Article I of the original Act, which
enUm8rated the general duties and responsibilities of the
Board, SOme of which applied to the beer business. Sec-
tion 23 of Article I defining "wet" and "dry" at-east spoke
of "liquor" only but obviously applied to areas where
"beer" sales were permitted or prohibited.
The section8 dealing with local option elections
and particularly with ballots used the word "liquor" in
the sense of an alcoholic beverage and left its applica-
tion to b88r to depend on the designated alcoholic content.
These Illustrations suffice to evidence the fact
that the word 'liquor," especially when used in the provi-
sions of more general application, USUally carried the
generic connotations of the phrase "alcoholic beverages"
and was quite often qualified by a statement of the partlc-
ular alcoholic content to which th8 particular provision
applied.
Finally, and quite significantly, the original
Act was scrupulously specific in prescribing absolute in-
dependence of the regulatory agency and the industry over
which It had jurisdiction. Not only was the eligibility
provision repeated in Section 5 of Article 1 but Section
21a of Article II of the original Act made the following
specific provisions designed to guarantee that the Board
and Its employees would not participate in pOlItiCa el8C-
tions.
"Sec. 21a o It shall be unawful big for
any person paid a salary or per diem or receiv-
ing any compensation out of the appropriation
made or tax88 collected under the term8 Of this
Act to engage in or take part in any pOlitiCa
campaign. By engaging in a political campaign
or taking part in a political Campaign i8 meant
and shall include distributing circulars, hand-
bills, posting pictures, handing out cards,
making Speech88 or soliciting support for or
opposing the election of any candidate for any
public office. Any such employee engaging in
such inhibited and unlawful conduct shall be
subject to removal from his pOSitiOn and re-
straint from reemplogment in such department for
a period of one (1) year by a judgment in the
Hon. Coke R. Stevenson, Jr., page 5 (V-1259)
district court of the county wherein Such
unlawful activity occurred, either In whole
or in part. Any ten (10) or more qualified
resident voter8 of such county shall have
authority t0 institute a Suit in a district
court of such county praying for the removal
of such employee Prom such department, citing
such employee and any member of the Board,
and, upon final hearing, the allegations of
the petition being sustained, the judgment
Shall be to discharge the employee and to re-
strain the department from re-employing such
employee for a period of one (1) year from
the date of the judgment.
"In like manner, any member of the Board
who shall violate this section or who shall
solicit, ask or suggest to any employee, either
directly or through any other person, that such
employee violate such section, then and In that
event such Board member may be removed by quo
warrant0 proceedings in the district court upon
the relation of any ten (10) qualified voter8
of the county in which such violation occurred.
The writing of a letter into any county where-
in such letter violates or Suggests, asks or
solicits a violation of this law shall consti-
tute snfficient grounds for removal in any
county through which such letter paSSed or in-
to which such letter passed."
This section was obviously designed to aSSUre lm-
partial administration and activity by the regulatory body
and its personnel. The whole scheme for setting up the
Liquor Control Board was to create an Independent agency
whose actions would not be Influenced by a financial lnter-
est in the industry over which it exercised jUrlSdiOtiOn,
and who would be expressly prohibited from exerting politi-
cal influence in furtherance of or opposition to the inter-
ests of such industry.
The principle promulgated in Article 666-5 is not
novel to Texas administrative law. See Article 4681, V.C.S.,
declaring that no person who Is directly or indirectly in-
terested in any Insurance company may be a member of the
Board of Insurance Commissioners or a clerk in the Insurance
Department.
Hon. Coke R. Stevenson, Jr., page 6 (V-1259)
,.
We are constrained to attribute to the Legis-
lature a consistent policy In regard to such eligibility
provisions, where such con8i8tency~finds support in the
law e You are, therefore, advisedzthat one who owns an
interest in a licensed beer distPlbuting business 18 in-
eligible for employment by the Texas Liquor Control Board.
One who owns an interest in a licensed
beer distributing business is ineligible for
emplo nt by the Texas Liquor Control Board.
Art. r 66-5, V.P.C.
APPROVED: Yours very truly
Ned McDaniel PRICE DAIUEL~
State Affairs Division Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews
First Assistant
Untitled Texas Attorney General Opinion
Combined Opinion