BE mf.-o~~~~ GENERAL
OF TEXAS
PRICE DANIEL
ATTORNEYGENERAL
Honorable Wfllfam N. FIansley
Criminal District Attorney
Bexar County
San Antonio, Texas Opinfon HoJo.V-203
Re: Whether a private olub,
under certain prescribed
oonditions, would be op-
arating in violation 0r
constitutional and stat-
utory provisions relative
to the sale of llc~uor by
the drink; clarification
of previous opinion No.
O-7139, pertaining there-
to s
Dear Sir:
Your letter of March 20, 1947, reouesting the
oplnlon of thls department 61s to the effect to be accord-
ed previous Oplnlon No. O-7139, relative to the sale of
liquor in a private club, reads in part as follows:
*qWe hereby recuest that your office furnish us
with an opin%on as to whether or not you adopt or
reject Optnfon No, O-7139, approved by your predo-
cessor on December 20, 1946,
“Your predsoeneor delf+erod two oontrary opln-
ions on the matter Involved, the above captioned
oplnlon bring the last one rendered. For that roe-
son, we think it highly advisable to have the doubt
thus raised resolved by you atter a re-examination
and rq’-consideration of this matter.
“In the event that you adopt this opinion,we
would greatly approc%atr it it you would furthor
clarify same0 This oplinion did not doo9de whether
or not tha fact sltuatQon presented constituted
a violation of the law, but marely stated that
suoh evidence would make a prima facie case to
present to a jury0 A mars derinfte and posPtivr
Eon. William NJ. Haosley,, Page 2 (V-203)
opfnton would be of great .benefit to both this
office and the local office of the Texas Liquor
Control Board in d,ecidfng what course of action
to take with respect to the San Antonfo Club,
whose operations constitute the subject matter
of the prcvfous opinions and of this request,
D 0 0 an
It is an extremely difficult task for this off-
foe to attempt to pass on the application of a statutory
provision to a efven situation which is based upon ques-
tians of fact0 Such questfous of fact are to be deter-
mined by a jury? or by the court in absence of a jury,
and this may be subject to one construction by a given
jury panel and to an entirely different interpretation
by another9 dependfug upon the oredfbilfty and weight
placed upon the witnesses and their testimony, circum-
stantial avfdence and other matters which cause the
minds of reasonable men to differ, As you stated fn
your letter, the writer of Opfnfon Do. O-7139, which
was released 05 December 20, 194ki9~did not pass upon
the given facts as a matter af law, but only that such
evidence would nake .a prime facie case to present to a
JUrU.
In order for us to give au opinion as origfge%-
ly requested by the Honorabla Dert yard, Admfnistretcr,
Texas Liquor Control BOardPdthe Banner fn which the San
Antonio Club fa operated s as set aut fn Opinion No, O-
7139, will nacasaarP1y have to be assuaad as the estab-
lished facts ~of the case. The two lettera from the Wan-
orable Bert Ford are set out in full, fn ardor that wa
My have these radta befOre ua # as r0ii0w8:
VI11 yau plersr give ~0 your talwd opinion
aa to iiktbr or not a ‘plaoe operated in the aaa-
nar fndfmted below, where llooholfo bsvsregra a re
served s omatltute tha aperatqon o? an apen saloon.
“The San Anttoafo Club, a corporatim duly fn-
corporated uader tha lawa of the State of Texas,
is the la~s8e Of approxi~taly 1300 square feet of
spaae laoatad on the third floor of the Gunter Hotel,
vThfa space was leased to the San Antonio
Club for a period of five yeera at an annual
rent’al of $5,000,00 per year, The premises were
leased for occupancy as a prfvatm club and the
,., .! “i
Hon. William N. Hensley, Page 3 (V-203)
lessee agreed to all public laws pertaining to
the operation of private olubs.
“The club comprises three rooms: a reading
room, a club room, and a dining room. The alub
is Btaffed vith stewards who are rrsponsible ior
the general upkeep of the olub; and these two
stewards are hired by and their salaries are
paid by the San Antonio Club, Officers of the
club and members of the club do not reoeive any
compensation.
“The Ounter Hotel strvioes the dining room
and maintains waiters for both the lunabeon and
dinner.
*The club members pay the hotel regular room
service prices, less ten per oent dlseoumt ror
rood*
“The hotel waiters do not have access to the
club room, or the reading room. Their aotivitirs
being confined strictly to the dining room.
“There is a service bar in the olub room for
dispensin~v mixed drinks only to members and their
guests D
“The bar is operated under what is knswn as
the bar pool plan, Zaah of the seventy-five club
members have on deposit in a separate fund $25..OQ
each, which makes 8 total of $lg75.OC. This money
has been pooled tdgether to purchase liquor for
their personal use:
Y’Pu~hases of liquor for the club is made by
the treasurer from the holder of A Retail Package
Store Permit 0
-In withdrawing, liquor at the bar flom this
pool, each member uses a ooupon book, Zaah coupon
entitles the member to ane drink.
“All liquor purchased for the club is plaaed
on the back bar or is ‘stored in a small roam be-
hind the bar.
“Club members obtain aoupon boaka from the
etewards o
.
Hon. Killiam K. Hensley, Page 4 (V-203)
"At the end of each month the club member is
billed for the number of coupon books he has been
issued,
"There ara no guest cards for the San Antonio
Club, and no non-member is allowed in the club room
unleeo he is a guest ot a m-her. No guest can ob-
tain drinka from the bar, but a member may serv6
hi8 or hei guest a drink, using his or her coupon.
No money at any time changes hands in the club room.
"Following are the house rules of the club.
“1. Bo ladies permitted before 5 p.m.
we. Emrescorted ladioa permitted at any
“3. Members required to limit their guest&
to four -- if more, contact the bar I%-
garding sarvioe before arriving with the
guests.
“4: No gambling with guests at any time.
“5. No poker allowed.
“6. Club open iTom 11 a. n. to 18 midnight.
“7. No slot machines or niokslodeona per-
mitted on the premises.
“8. No long distance phone calla or wires
perraitted from house phones.
*9. ~;em;~~rs or guesti allowed behind
0
RlO. Members aannot mix their own drinks.
“11. Ro member ahall be permitted the priv-
ilege of bringing the same resident
guest oitsner than once a week,
“12, Drinks cannot be served to anyone
other than a member, unless accom-
panied by a member.
“130 Yembera are not permitted to bring
their offn liquor.
Hen. w/11 lam NJ. Hensley, Page 5 (V-203)
“1 wish te call to youp attention the follow-
in6 provisiam af the Texem Liquor Ceatrol Aot:
“‘Seotieu 3,(a) of’ Article I. The tern ‘*open
sa10on*~ as used in, this Act, means any place where
any alcohelio beverage whatever, aaanufactured in
whole or in part by meatas of the proeass of distil-
lation, or any liquor cempoaed or oeapeunded in part
0r cliatinsd epirite, is sold or ofrerad rOT arle
for beverage purposes by the drink QT in broken or
unmaled oontainers, or any plsoe where any auah
liquors are sold or offered for sale for human con-
sumption on the premises where gold. I
“‘Sootion 3(b) or Article I. It shall be ~JP
lawful far any por$p892), whvthor as principal, agent
er angloyer, to up&rate or rssist in ooerating,, or
to be directly or.‘iadlreatly Intorested ia the &per-
ation or any open saleon in this State.’
“I also wish to cell your attention to Opinion
No. C-1145, approved by the Attorney General’s De-
partment on August 26, 1939, It is the contention
of the San Antonio Club that Attorney General’8 O-
plaion No. ,O-1145 dooa not cover this situation. The
S4n Ant&n10 Club hmtker oontcnds that the manner
in whfoh it epsrates does not violate Sectien 3,
(4) 0r Article 1.”
******
.mIn sopplmonting #g letter or Yaroh 7, 1940,
re~umWn& an opinion on the operatier of the San
Antonio Olub, a owpomtfon duly inror eratsd ullder
the 18~s or the State of Tsxaa, thfa oPub oper-
ate& on a ooupvn ayrtoa whereby a member may secura
a ooupoo be$L aontainfng twenty (20) oaupona, 0r
which eaah oeapon ItO warth fifty centsi .50) eaoh
nuking thd eeapon b4Ok 0@4t a total or i 10,oO.
“In sach inataaos of where a member pur-
ohases a drink of whiskoy, mixed or otherwiao,
it is necessary that the msllber and the olub
atewar countersi n eaoh ooupon. Each drink ai
whiskry 8 aither mx red or otherwise, has a oest
or fifty cents ($,50) regardleas of tha typo
drink porohased D
“The club aamber does not pay for hiB coupon
Hon. William B. Hensley, Page 6 (V-203)
books until the end of the month, at which
time the secretary bills him for the number
of coupon books that he has received during
the month.
“The treasurer of the San Antonio Club
purchases all liquors to be used by the club and
payment ror these liquors is made from the funds,
which were originally set up as explained in my
previous letter. ’
*Honeys derived from the sale of coupon books
is placed in the fund at the end of each month,*
It appears to us that the primary question in-
volved in this situation is whather there is a sale from
the olub to the individual members when a drink of whiskey
is served. The authorities discussed by the writer of
Opinion lo, O-7139 will be usad bore, in so far as they
are applicable.
Krnalrek Y. State, 41 3. 1. 612 (Court of Criri
inal Appeals) holds:
*The question here is whether the sale of
intoxicants by the managing steward or barkeeper
of the club to one of’ the aembers of said club
seme to an individual meaber,’ ior whioh he either
paid tho oeeh, or became responsible therefor. D
0 0 0 e Thir is not a oase where parties contrib-
ute sums of aonep and purchese intoxicants there-
with, and divide them prorata amDnq themselves;
but it is a transaction where the common assets
of a oontinuing business are used to replenish
the goods sold in that business. o 0 0w
(Wmphasis our8 .,1
Feige 1, State, 95 3.. 1, 506 (Court of Crirfn81
Appeals) s holds ‘.
*In any event accondinp to our view,
- .I-d--Z--Ad----- tl&
Hon. William W. Menaley, Page 7 (V*803)
i3ht
the beer on its own behalf in Ft. Worth, and if at
any time the dorpontion had failed and become
subject to b;ledutioB, the bear and pregsrty ot the
same could have been seized for the debts oi’ suah
corporetioa. When the beer was brought irem Ft *.
Adaaa v. Stat., L45 8. W. 940 (Court ei Crieiin-
al Appeals) , holdr:
“The questiens presented for Ow asn8idera-
tion,ara but two: Did the transaotion eenatitute
a sale wlttin the maani or our law6, and, . . .
The evilenas shows that T he inuorpanted club pur-
chased liquors in bulk with naoaay in th6 treasury,
end sold or dispensed the liquors to its members
at the u.mal or customary priaa. This we thfnk
osnstitutes a sal.e under all the rules Or law.
fr my giomn nukaber Or persrpagorgaqif4e un ~.ss(P-
~ciatien uniter any name whatsoever with the uadar-
Prom the authoritiee cited, supra, and aany other
autherities faund by a oareful asarCh in conneotion with
th0 quaatle~a 5nvalnM in tlsis request, we are af the op-
inion that m&&er the ijets w&i&, as stated at the outset,
we ara neaaa~~iZy #MN&&M to 06 establishmd, re is a
*iaalew or whfs.key fz?om the 0luh or steward au
the club to the members. The facte stated im t f;iE
~~oaseaare not ~iseiail~ar to the facts involved fn the ep-
e&tfon ef Zhe San Antonio Club as set out In the letters
from the WonerebLe Bert Ford. Under such hsl&iElps , the
aanner in wMOh t$b Sea Aattonio Olab la beiq eantfacted
, ,.,
Eon. William W. Hensley, Page B (V-203)
16 olearly in violation of Article 666-3, Paragraph (a)
e? T~rnon’s Penal Coda of Texas. Tha money whioh each
mamber’places in the WpoolW, becomes the common property
or the club, Andythe liquor purohaae& by the treasurer
with this money becomes the property of the club. There-
fore, when a drink is served to an individual member and
he beoomes llabla for the “ooupon” given for suoh drink,
it Is a wealc* or the property or the club to the member.
We concede that then members or the San Antonio Club a.0
not have the intention or dianorition to violate the pro-
visions or the Texas Liquor Control A&, but, in visw 0r
the authorities relative to what oonatitutes a sale in
6uoh cases, we are bound to hold that such aonduot doer
amount to a violation of ths herslnabove mentioned pre-
vision6 0r the Penal Coda.
Upon determining that a %ala” is made by the
Club or by the steward, as agent for the club, to the
members, the next question &nvolved is whether such a
sale under Artiolo 666-3, Ptirrgraph (a), Vornong6 Penal
Oode of Texas, would be prohibited in a vwft? area as
well as in a “dry” area, inasmuoh as the violat5ona In
the &ted cases ocourred In a “dry” area. This is speo-
iffoally passed on by th@ Court of Criminal Appeals in
~fjhelton v. State, 138 S. W. (Sd) 1078, in the following
l*nguage :
“This ir a casr ot rlrat Impression when
we are askad to dotealma whether or not .the
I~W rorbiaaing a ~)‘OP O lI P
1605f lg p lie6to th 0
‘wet’ or to the ‘dry* twritory iifhin th6 #tat@.
We wish to point out that the method of opera-
tion involved hers is to be distin@sheQ ‘from t_hs one,
;,“l;;$o;reT~;~~rmed, ie beiy wed at tha Hou6tOa Club
and other o ubs over the State, whera
indivldual’looks& ere provided for the moffbers of tha
crlub. In those situations, there would not be a sale sf
liquor as there the individual would be providiq his own
liquor, and it would not be purchased by the treasurer
out or funds belonging to ths club thereby becoming the
property of the olub.
.
.
”
Hon. William N. Wensley, Page 9 (V-203)
This oplnlen ia not to be ,~oenatrued as ovcr-
ruling ronohtr Op5.aibn Wo. o-7139, but snly that, suoh
opinion is qualified by our taking various aondltiems
as established rather than leavinq them for dstsnira-
tion by a jury.
If an orricm or a private club purohasee
liquor from fumds i’u&ilshed by individual meu-
bers to the olub, such. liquor becomes the oom-
mon property of the, club. When B drink is ae-
livered b t e stew rd ~to a member a.nd i
for ii +i&$&$kidsQ by the dl;M
stitutes a the ftiaitinuai
member. &i&k v: St:t: ,‘41 i. 1. 612* Feiga
0. State, 95 3, W. SOS; Ada@@ v. State, i4S S.W.
940.) Such a sale is in direct vlalation at the
provisions of Artfole 666-3, Paragraph (a), Ver-
non’s Penal code, of Texas. This statutory pxb-
hibition applies equally to “wet” areas end “dr *
areas. (Shelton v. State, 136 s. w. (26) 1078.3
3;
:’
$*, Yours very truly
‘ATTORNEYGENERALOF TEXAS
By--&&sjtgtf
Assistant