R-804
5sr
OFPICE OF
THE ATTORNEY GENERAL
AVSTIN. TEXAS
PRICE DANIEL
.4TTORNEYGENERAL October 7, 1947
Hon. Gene Maddin Opinion No. V-400
District Attorney
McLennan County Re: May beer, as defined by
Waco, Texas Art. 667-1, V.P.C., be
legally sold in Justice
Precinct No. 5 of McLen-
nan County, Texas?
Dear Mr. Ma&din:
Your.letter requesting an opinion of this
Department reads, in part, as follows:
"In the year 1909, Justic&'.Precinct
No. 5 of McLennan County, Texas, by local
option voted said precinct dry as to both
liquor ana beer. No local option election
has been held in said precinct since said
time except that in the year 1933 a local
option election was held under the provis-
ion'of Chapter 116, Acts of the Regular
Session of the Forty-third Legislature at
which election sale and aistribntion 0;
vinous and malt beverages containing one-
half of one per. cent or more of alcohol by
volume and not more than three' and two-
tenths per centum of alcohol by weight was
adopted under the 1933 amendment to Section
20, Article 16 of the Constitution of Texas.
"By county wide loc.al option elections
under the 1935 statutes, McLennan County,
Texas, generally is wet as to beer and dry
as to all other forms of intoxicating liquor.
: Can beer as defined by Arti-
cle 66ymof t e Penal Code of Texas be legal-
ly s0ia in Justice Precinct No. 5 of McLennan
County, Texas?"
We shall assume for purposes of this opinion
that.the 1933 local option election held in Justice we-
cinctJ0. 5 was valid in all respects! and that no county-
wide election resulting in the prohibltion of all.albohol-
ic beverages has been held in YIcLennan County since 1933.
558 Hon. Gene Maaain - Page 2 (V-400)
The local option election held in Justice
Precinct No. 5 was held under the authority of Article
XVI, Section 20 of the Constitution of Texas, as amendea
in 1933, and in accordance with Chapter 116, Acts of the
Regular Session, Forty-third Legislature. Article XVI,
Section 20 as adopted August 26, 1933, was the so-called
“beer amendment”. This amendment is quoted in full as
r0lhvs:
“The manufacture, sale, barter or exchange
in the State of Texas of spirituous, vinous or
malt liquors or medicated bitters capable of
producing intoxication or any other intoxicant
whatever except vinous or malt liquors 0r not
more thti three and two-tenths per cent (3.2$)
alcoholic content.by weight, (except for medi-
cinal, mechanical, scientific, or sacremental
purposes) are each and all hereby prohibited.
The Legislature shall enact laws to enforce
this Section, and may from time to time pre-
scribe regulations and limitations relotive to
the manufacture, sale, barter, exchange;or
possession for sale or vinous or malt liquors
of not more than three and two-tenths per cent
(3.2%) alcoholic content by weight; provided
the Legislature shall enact a law or laws where-
by the qualified voters of~any county, justice’s
precinct, town or city may, by a majority vote
of those voting, determine from time to time
whether the sale for beverage purposes of vin-
ous or malt liquors containing not more than
three and two-tenths per cent (3.27%) alcohol
by weight shall be prohibited within the pre-
scribed limits; and provided further that in
all counties in the State of Texas and in all
political subdivisions thereof, wherein the
sale of intoxicating liquors had been prohibitea
by local option elections held under the laws
of the State of Texas and in force at the time
of the taking effect of Section 20, Article 16,
of the Constitution of Texas, it shall continue
to be unlawful to manufacture, sell, barter or
exchange in any such county or in any such polit-
ical subdivision thereof, any spiritous, vinous
or malt liquors or medicated bitters, capable
of producing intoxication or any other intoxi-
cant whatsoever, unless ana until a majority
of the ~ualiriea voters in said county or po-
‘litical subdivision thereof voting in, an elec-
ti on el or sue
559
Hon. Gene Maddin - Page 3 (V-400)
to be lawful to manufacture. sell, barter and
exchange in said county or politioal subdivi-
sion thereof vlnous or malt liquors contain-
tig not more than three and two-tenths per
cent (3.2p) alcoholic content by weight, and
%he provisions of this subsection shall b
self -enac n ." (Emphasis added througholt
‘this opinion)
‘.A
Chapter 116, Acts of the Regular Session of the
Forty-third Legislature was passed prior to the a&option
of the above constitutional amendment and became effect-
ive September 15, 1933. Generally described, it was an
act regulating the manufacture, sale, distribution, ana
transportation of vinous or malt beverages. Section 1
(a) of this act defined "beer* as follows:
"The word 'beer' as hereinafter used in
this Aat ana for the purposes of this Act
shall mean beer containing one-half (1) of one
per oent (1%) or more of aloohol by volume and
not more than three and two-tenths per centum
(3.2%) or alcohol by weight."
Thus, it beoomes apparent that under the consti-
tutional and statutory provisions in etfect in 1933, when
the election was held in Justice Preoinct No. 5, only
vinous or malt liquors containing not more than 3.2 per
cent alcohol byweight could be lesalizea.
In 1935, Article XVI, Section 20 of the Texas
Constitution was again amended to authorize the sale of
all liquors within the State of Texas in such counties,
justice precincts, or incorporated cities or towns as
should by local option legalize them, This amendment is
now in effect and in so far as pertinent to the point un-
der discussion is quoted below:
"(Cl In all counties, justice's precincts
or incorporated towns or cities wherein the
sale of intoxioating liquors had been pro-
hibitea by local option elections held under
the laws of the State of Texas and in force
at the tine of the taking effect of Seotion
20, Article XVI of the Constitution of Texas,
it shall continue to be unlawful to manuftic-
ture, sell, barter or exchange in any such
county, justice's precinct or 1ncorporateK
town or city, any spiritous, vinous or malt
560 Hon. Gene Maddin - Page 4 (V-400)
liquors or medicated bitters capable of
producing intoxication or any other in-
toxicants whatsoever, for beverage pur-
poses unless and until a majority of the
qualified voters in such county or poli-
tical subdivision thereof voting in an
election held for such purpose shall de-
Pursuant to this 1935 constitutional amendment,
the Second Called Session of the Forty-fourth Legislature
repealed Chapter 116, Acts of the Regular Session of the
Forty-third Legislature,. and passed Chapter 467 commonly
referred to as the Texas Liquor Control Act. This act,
as amended, is coairied as Articles 666 and 667 of Ver-
non’s Penal Code and constitutes the Texas Liquor Control
Act .as it now exists. The definition of “beer” set out
in Chapter 116, Acts of the Regular Session of the Forty-
third Legislature, and quoted above was repealed and AC-
title 667-1(b) or Vernon’s Penal code, as now in effect,
defines *beer* as a malt beverage containing one half of
1 per cent or more of alcohol by volume and not more than
4 per cent of alcohol by weight.
‘--q
Chapter 448, Acts of the Regular Session, Forty-
fifth Legislature, was passed in 1937, .3na was an act re-
vising the Texas Liquor Control Act as originally passea
in 1935. Article II, Section 2 of Chapter 448 provides
in part as follows: x., -
n. . . . in justice precincts . . .
wherein a majority of the voters have
voted to legalize the sale of beer in
accordance with the loc’al opt ion provis-
ions of Chapter 116, Acts of the Regular
Session of the Forty-third Legislature
. . . . beer as herein defined may be
manufactured. distributed and sold as
herein provided.
Hon. Gene Maddin - Page 5 (V-400) 563,
The words "beer as herein defined" refer baok
to Article II, Seotlon l(b) of Chapter I+@, which pre-
.* oeaes the above provision and which is quoted as follows:
"The term 'beer' means a malt beverage
containing one-half of one per cent or
more of alcohol by volume and not more
than four (4) per cent of alcohol by weight,
and shall not be inclusive of any beverage
designated by label or otherwise by any oth-
er name than beer."
This is the same d.efinition which is now cod.&
flea as Article 667-1(b) of Vernon's Penal Code. There-
fore, the Legislature, when they used the words "beer as
herein defined" could only have intended 4 per cent beer.
The import of the language is to legalize the sale of 4
per cent beer in counties, justice precincts and incor-
porated cities or towns which voted to legalize 3.2 'per
cent beer under the authority of the 1933 constitutional
amendment and in accordance with the local option provis-
ions of Chapter 116, Acts of the Regular Session or the
43ra Legislature. This appears to be the legislative in-
tent despite the following language which appears in or-
title XVI, Section 20 of the Texas Constitution as final-
ly amended in 1935:
". . . . provided that this subsection
shall not prohibit the sale of alcoholic
beverages containing not more than 3.2 per
cent alcohol by weight in cities, counties
political subdivisions thereof in which
the qualified vot6rs have voted to legal-
ize such sale under the provisions of Chap-
ter 116, Acts of the Regular Session of the
43ra Legislature."
The language quoted immediately above limits the
alcoholic content of beverages legaliz+ under the prods-
ions of Chapter 116, Acts of the Regular Session of the
Forty-third Legislature to %ot more than 3.2 per cent al-
cohol by weight." We are familiar with the rule of stat-
utory construction to the effect that all doubts must be
resolved in favor of the constitutionality of a statute,
but we believe that part of Chapter 448, Acts of the Reg-
ular Session, Forty-fifth Legislature, referred to above,
is in clear ana irreconcilable conflict with that part of
the constitutional amendment of 1935 quoted immediately
above'. We believe strength is aadecl to this contention by
562Hon . Gene Maadili - Page 6 (V-400)
the many Texas decisions to the effect that ‘the local
option status of a particular political subdivision
may be changed only by the voters in the territory
where such law was ori inally vitalized; See Houchins
v. Plainos; 110 S. W. 7 2d) 549, and cases cited there-
in. It is, therefore, the opinion of this Department
that Article II, Section 2 of Chapter 448, Acts of the
Regular Session of the Forty-fifth Legislature? oodi--
fled as Article 667-2 of Vernon's Penal Code, in so
far as it attempts to legalize 4 per cent beer in tise
political subdivisions which had voted to legalize on-
ly 3.2 per cent beer under the provisions of Chapter
U6, Acts of the Regular Session of the.Forty-third
Legislature is violative of Article XVI, Section 20,
of the Texas Constitution adopted in 1935. It is the
further opinion of this Department that only beer of
an alcoholic content not in excess of 3.2 per cent by
weight may be legally sold in Justice Precinct No. 5
of MoLennan County, Texas.
Article II, Section 2 of Chapter I+@, Acts
of the Regular Session of the Forty-f1ft.h Legis-
lature, in so far as it attempts to legalize 4’
per cent beer in those political subdivisions
which had voted to legalize only 3.2 per cent
beer in 1933 is in conflict with Article XVI,
Section 20 of the Texas Constitution. There-
fore, only beer of an alooholic oontent not in
excess of 3.2 per cent by~weight may be legally
sold in Justice Precinct No. 5 of McLennan
County, Texas.
ATTORNEY
GENH(AL
CYM:rt:wb Assistant