OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
xr. Bert Ford
Uquor Control Board
Austin, Texae
Dear Sir:
Opinion No.
Re: that al
Charter of the oitp &
a, b an& c, vfaa~enaoted
e of,Teras, at the Regular
$, being Eouse RI11 x0. 368,
peoial Laws of that S888iOlL
b and 620 of the Charter bZ the
here srlrltuous,vinous or malt
redlcated bitters oapable of pro-
xicatlon, are sold or kept for sale,
ehall be located within the following described
territory in said olty, or upon the following
lots or blooks in said aity, to-wit: (here fol-
low metes and bounds delineating lines and area
8hoKn by the red line on the n;apattaohed to
Nr. Bert Ford, Kay l.3,1939, Page 2
this letter.)
“62b. That at no other plao8 or plaoes
Mthin the oorporate limit8 of said city of
Galveston, exoept as named In the foregoing
seotion, shall spirituous, Yinous and malt
liquors or medloated bitter8 capable of pro,-
ducing lntoxicatioti, be 8Old or kept for sale.
Provided, hwever, that this cot 8hall not be
so oonstrued a8 to prohibit drug stores from
selling or keeping for sale aplrituous,vinous,
or malt liquors, or medicated bitters capable
of produoing lntoxioation,for medicinal pur-
poses upon the written presoriptlon ot a re-
gularly lioensed and practicing physician.
“620. That any violation Of the proYision8
of this act shall be punished by a fine at not
leas than fifty nor more than one hundred dollars,
and each sale of such liquor8 or blttere, and
each day that suoh liquors or bitter8 are kept
for sale, in violation of the provisions of this
aot shall oonstitute a separate ofrense."
We are informed by the Liquor Control Board that
this arotwas approved and beoame etfeotive Yaroh 22, 1909,
and that there hat never been a vote of the people of the
olty of Galveston on Seotion 62 of it8 charter.
On lay 24, 1919, Section 20 of Artiole 16 of
the state Constitutionwas amended to read a8 follow8;
T5eotlon 20(a) The manufaoture, sale,
barter and exchange in the state of Texae,
0r spirituous,vlnoua or malt liquors or
medicated bitters oapable of producing intoxi-
cation, 'orany other intoxicants whatever ex-
cept for medicinal, meohanlcal, seientifio or
saoramentalpurposes, are each and all hreby
prohfiited.
Vhe Legislature shall enaot laws to en-
force this seotion. .
m(b) Until the legislature shall prescribe
other or different regulations on the subjeot;
the sale of spirituous, vlnous or malt liqUor8,
or medloated bitters, capable of producing intoxl-
oation, or any other intoxicant whatever, for
Mr. Bert Ford, May 15, 1959, Page 3
for medlolnal purposse shall be made only
In case8 of actual elokness and then only
upoiithe presoriptlon of a regular praotls-
lng physician, subjcot to the regulations
applicable to sale8 under preeorlptlona In
prohibited territory by virtue of Artlole
598, Chapter 7, Title 11 of the Penal Code
of the Stat8 0r Texas,
"(0) This amendment is self-operative
and until the Legislature shall presoribe
other or alrrerent penalties, any person
acting for him&V or In behalf,of another,
or In behalf of any partnership, oorporatlon
or association of persoa8, who shall, after
the adoption of this amendment violate any
pzrt of this oonstltutionalprovision ehall
be deemed guilty 0r a felony, aa shail, upon
oonvlotlon In a pro8eoutlon.oommeno8d,car-
ried on and concluded In the manner prescribed
by law In case8 of felonies, be pIM8hed by
confinement In the penitentiary for a period
Of time not 18SS than one year nor more than
five years without the benefit of any law
providing for suspended aentenoe. And the
di8trlOt oourtaand the julgee thereof, under
their equity powers, shall haPe the authority
to Issue, upon suit of the Attorney General,
lajunotlona against lnfraotloplser threaten-
ed lnfraotlonaof any part of this oonstitu-
tlonal prwl8Ion.
*(a) Without affeOtlng the provision8
herein, intoxicatingliquors are deolared to
be aubjeot to the general polioe power of the
state; and the Legislature shall have the
power to pass any additional prohibitory
laws, or laws In said thereof, whloh It may
'i deem advisable.
"(e) Liability for violating any liquor
laws In foroe at the time of the adoption of
-- .-
?!I-.
Bert Ford, Vay 15, 1939, Page 4
this amendment shall not be affected by
this amendment, and all renedles, ~1~11
and orimlnal, Bar such violations shall
be preserved.*
No looal option election has ever been hold
In the city of Galveston under the provisions of Fee-
tlon 20, Jztlcle 16 of the State Constitutionas It
existed prior to !?ay24, 1919, or hs has existed subse-
quent to Awust 24, 1935, or under any acts of the Legls-
labre passed pursuanct IXJsaid Section 20, &rtlcle 16
of the Constitution.
Prlcr to Yay 24, 1919, Section 20 of Article
16 of the Conetltutlon o? Texas, prOVidad for the deter-
mination by loce~loption, by vote of the people In coun-
ties, justice's precincts or lnoorporatedtovms or oltles
within the atate, a8 to whether or not liquor could be
sold therein, and pursuant to such article a8 It then
existed, a number of loco1 option statutes he& been pans-
ed by the Legislature.fromtl:e tc time, and numerous
counties, Justice's precincts, clt&es and towns In the
*!dry” pursuant tc .cuohsta-
state had voted tF:erflelvea
tutes and such amendment.
On August 24, 1935, tection 20 of Article 16 of
the state Conctltutlonwas further axanded to read a8
folloM~s:
"(a) The oyen saloon.shall be and Is
hereby prohibited. The L.egls?ature hhall
have the power, and it shall he Its duty to
define the term 'open saloon1 and enact law8
against such.
"bubJeot to the foreqoinz, the Leelala-
ture shall have the paver to re,@ate the
manufacture, sale, possession and transporta-
tion of i~toxloatingliquors, lnclW.1~ the
~~~,eroy,oae~~~~i~~hlaqe~~~~ mnopol~ on the
“(b) The legislature shall enact a law
or lws whereby the qualified voters of any
county, justice's precinct or lncor~orated
t'r.Eert Ford, ray 15, 1939, Pace 6
town or olty, may, by a mUjorIty vote of
those voting, determine from time to time
whether the sale d Intoxicatingliquors
for beverage purposes shall be prohibited
or legalized vlthln ‘the prescribed llmltsl
and such laws shall oontain provisions Bar
votlly:on the sale cf lntoxloatlnl: llq.uors
of vl:rlouetypes tad various alcohollo con-
tent.
*(c) In all counties, justloets pro-
cincts or incorporated towns or cities
wherein the sale of Intoxicatingliquors
hod been pohihlteb by local option elec-
tlons held under the laws of the state of
Texas and in fo-ce at the tlmo of the takr
lny:effect of Sectlcn,20, Article 16 of the
Constitution of Texas, It shall continue
to be unlawful to manufacture, ooll, barter
or exchange ln'cny such county, justloets
preolnct or incorporatedt0v.nor city, any
splrltuou8, vinrua or malt liquors or rieai-
ceted bitter cryable of produolng lntoxloa-
tlon or any ether intoxioantswhatsoever,
for beverage Furposes, unless and until a
majority of the qualified voters In such
county or ?olltloal subf:lvlodon thereof vot-
In6 In an elcctlon held for such purpose
&all determia such to be lawful: provided
that tkle oubcectlon shall not prohibit
the sale cf alcoholic beverages oontainlng
not more than 3.J per cent alcohol by weight
in cities, ocuntie8 or yolltlcal subdivisions
thereof In which the qualified voters have
voted to legalize such sale under the provl-
sions of Chapter 116, Lots of the !?ecular
Session of the 45rd ie~islature.W
It must be noted that such oon~tltutlonalamena-
ment specificallyproviCes that the sale of lntoxlcatln
llouors shall continue to be unlawful in 09rtain areas'fn
th6 state, defined and described as bein!:all oountles,
?~'I-.
?ert Ford, .)-ny
15, 1939, Faze 6
justice's precincts or Incorporatedtowns or cIt&es
wherein the sale of Intoxlcatln~liquors has been
prohibited by local option election held under the
laws of the otate of Texas and In rorce at the time
cf the taklnc effeat of FeatIon 20 of hrtlcle 16 o?
the Constitution mtil, a mojorlty of the qualified
YOter8 of cuch political subdivIsIon should vote other-
IdBe.
The Bane prOYi8iOn Wfm carried id.0 the Texas
Tlquor Control Act which beoame effective E.eytezzber1,
1937., See E.ectIonZ3 of krtlcle 666, Revleed~CIvIl %a-
tutes.
Courtsshave held tkt this lant$uaeeonly de-
Sines and Identifies certain "dry" area8 In the state
and doet not re-enact or revive In any manner the loaal
option laws existing prior to the prohibition cmendnent
of 1919, since such pre-existlng local optIon laws could
note heve been revived by mere reference to their title,
but cculd only have been revived by re-emmtnent end re-
rublicatlon of the lansuaee.
frorrthe case of Teal vs.
i:ecl_uote State, 90
S' (2nd) 651, as follows:
"';holocal option laws exlstlng prior to
the 1919 mendmeat were not attested to be
revived'bp the amendment of sectlan 20,.hrt.
16, a=.cdoy.tedAusst 24, 1935. This arand-
nientdefined r:hatarea8 would remain dry and
what areas would be wet after the ndoption
of the 1935 arzendment. In adopting this amnd-
men?.,the people Bad the rI?ht to Bay what
temitory would remin dry and what territory
Vould becone wet. This they did by.paragaph
(0) of the mendnent of Eection 20, Art. 16,
adopted';run,ust2.4,1935, es follows:
"*(c) In all counties, jurtice's
precinct8 or Incorporated tOWI or
cities wherein the sale of intoxicat-
ing lIquor8 had been prohibited~by
local option eleotions held under the
Vs. Gert Ford, L'ay15, 1939, Page 7
laws of the state of Texas and In
force at the time of the taking ef-
fect of section ZB, Article XYI of
tb8 Constitution of ?exas, It shell
oontlnue to be unlawful to mnufac-
ture, sell, barter or exchange In
any such county, juetIce*s FreCinCt
or Incorporatedtown or city, any
spirituous, vinous or rialtliquors
or lcedicetedbitters capable of pro-
ducing IntoxIoatIonor any other In-
toxicants whatsoever, for beverage
purro8e8, unleso and until a majority
of the qualified voters In such county
or political subdivisionthereof Yot-
inlr,
an election held for suoh purpose
shell determine suoh to be lavXul.*
"ThIS language defined the dry territory
and merely referred to the lax under which It
was mde dry territory for ti.epurpose of de-
finlv, and Identifying eucb territory, Eectlon
23 of Article 1 of Home El11 77 c. 467, Acta
of the 2nd Glled Eession, 44th fegislature,
enacted In aid of the abcve q&ted ar-enCr!ent to
the Constltutlon,also defines a ‘dry area' and
a *wet area’ In the sme lzannercs doe: the afore-
mentioned con:t.itutioaalemenmient, and said St&X-
tute forbids the sale or possession of liquors
In excess of 4 per cent alcohol by weight In
any ‘dry area’ as that tam is dcflned In the
act.*
It will be neen that there has been no re-enactment
of any pre-existing locel option 1Sv:Sand likewise there
has been no se-enactment of any pre-existing charter pro-
visions or ordinances prior to 1919.
Area8 *dry" by local option election prior to
1919 v:ereagain "dry" after the amendment of 1935 becau&e
the people of this state had 80 voted by definition In
the constitutionalamendment of 1935, and not because of
any re-enactment of such laws. Constitutionalamendrcent
\s
z.r. Sert Ford, Kay 15, 1939, rage 0
or 1935 i8 entirely 8Ilent as to the chertor provl-
sions or spoclal aOt8 of the l.e&Blature,such a8 Sec-
tion 62 of the Charter of the city of Grlvetton.
On December 30, 1912, Sectirn 5 of Article
11 of tho state Constitution,known (1sthe "I:oT;e Kulet*
amendment, WRS adopted and thereafter, considerable
legIslatIon ~08 enacted by the l.egislat.urefrom time
to time, under authority of such emendmmt, vhlch legls-
lation I8 Eet forth In Ckppter 13 of Title 28 of the
~ZcvlsedCivil statutes. The city of Gelverton hao
never re-enacted or re-adopted Its charter as a whole
under the *lIomerule* law8, nor has It ever z-c-adopted
or se-enacted .Sectlon62 .-rits charter thereunder.
Judqe Yattlmore, In the ease of Cone vs. State,
236 W 486, used the tollowinr:lan::uaEe:
l'on?TaySt, 1939, by populnr vote, f:eC-
tion 20, Article 16, of our State Constitution,
ws amended, i:n1the yroclemation of'the :'overnor
puttinz EZK;(:
into effect war of dcte July 3,
1919. By the tei%s of said amendment former
aectlon 20 wee struck out of t.heConztltution
and relzenled. Said sectlcn vza the one which
gave the legislaturepaver to enact law sub-
mIttInS to th6 people of a Flven territory for
their detornlnetionthe vestion e8 to the sale
~-r~~l.~~~~~...intoricatI~liquor vithln 8UCtA
territc-ry. Y'berepeal of seld Sectinn 20
necessarily carried with it the reTeel of all
law deFendin fw their validity won the exer-
EIse of the power conferred by Bald section.
\;henamended section 20 became effective, the
former section 20 died, and v:ithit elso diod
Its descendantsand dependents, e::ceptinsofar
as the savin: clause of said amendnd section 20
kept the provisions of such laws alive for the
purpose of prosecuting offenses committed there-
under prior to the adoption of the amendment.v
Also the cases of Sparks vs. St&e, 230 SY;649
and.~.IllIam~vs. State, 23S SK.640 are to the 8ame effect,
holding that whercln conviction fpr posi3essionof equipment
!.!r.
Bert Ford, Yay 15, 1939, Page 9
for_ the .nanufoc~ure
. . of
_ _intoxic+ng llqucr, unlawful
unaer statutes in exiutence prior to the odc~tion of
the constitution61amendment in 1919 were reversed
by a holdin; thnt,such statute hr:dboon repealed by
such amendment.
?:.edo not thir& thct it can be ccntended that
an ect of the Legislature amending;the chbrtcr cf a
municipal oorporetlon has aAnytreater force or dignity
or Is entitled to any further effectiveness'tb~na
general act of the Iegfslaturscovorin3 6-ndapplyfng
to the entire state. If such tot or statute xas re-
pealed by the above set forth constitutionalamendment5'
of 1919, as is held by the cbsen above cited, then the
ronner~must also ran.
.TusticeDey of the SuIx'emeCourt of the United :
States, in the ease of United States vs. Iuginovioh,
41 Dup. Ct. rep. 551, holdlrg certain provisions of pre-
existin? lfquor laws of the Unitad Stated, r6pcoled by
the 16th emendrent.,snd the acts of ConrJressrassed pr-
suant thereto, says in port es follows:
w1t is, cl"course, Settled that re-
peals by implication ere not favored. It
is equally well settled that a latter sta-
tube reI?e?lsfomzer ones when clearly incon-
sistent with the ecrlier enactments.q
Ke think thct Eectlnn 62 of the Charter of the
city or ~Glveston as rtbovequoted is clearly inconsistent.
and in conflict with the amendments of the ~onctitution
of the St&t8 of T6xc.sadosted in 1919.
"he fremers of the prohibition ~enOc.ent to the
conttltution edc~ted in 1919, evidently realized end be-
lieved thct such emendment vould have the eifect of tie-.
diat8ly re;?c&lingend nullifying:pre-8i:iStingp~rohibitory,
.regulatoryand penal laws on the subject of liquor, be-
cause they felt it necoesnry to and did incorporate into
such amendment its own penal provisions and a3 xi11 be
s:en from the cases before oited, this vieu-of the amend-
ment wes also t&en by our Court of Criminal &peals, when
the matter finclly came before them for decision.
Mr. Bert Ford, Pay l5, 1939, Page PO
After __ - br 193.
the adoption or the amendment
and pursuant to the authority Oontalned in Ssctlon jb]
'thereof, the Leqlsbture haa re-emoted new looal option
laws whioh hi.vebeen noted Upon b: various oountles,
justicels precincts and incorporatedtowns and olties
In the stote, but no such aotion under the authority
of said saction or any le&islation passed thereunder has
b89n taken by the city cf Galveston or in CIlveston County.
It can be seed that this Section does not
authorizethe pessaye of any statute grantin to cor-
porated titles the power to zone themsalves for t%"e:aale
of liquor, but ninoe said secti.-nand the law8 passed
thereuuder do not prohibit cities from doing so, aities
under the Vom !:ule"amendment have the inherent power,
in accordance with the regulations laid down In suoh
"Home Wle" law, to so zone themelves, but they only
heve such power as a result of the "Bome Eu&e* amendment
end to be exercised in accordance therewiLh snd this has
never been done in the city of Galveston, end is in no
sense true of Cectlon 62 of the charter.
fn the cases of Pitre VE. Raker,,,111ijX(Znd).
360, and Trltico et al VS. Texas f.iquore.:ntrolhoard,
recently decided by the EeauniontCourt of Civil Appeals
on Perch le, 1939,an attack<.wasbeing made upon the
charter amendment of the olty of Port Cxthur adopted
Xovembar 4, 1936, pursuanbe to and in full compliance
eith the "home RulcW statute or the state of Texas, which
said amendment defines certain areas in the city or Port
Arthur where intoxicetiw liquor could end could not be
sold lnaacoordancewith the state laws upon the general
subJect of such business.
These cases hold thet the poryerto regulate the
sale of lntoricatirq liquors to the extent that it is
1aMul under the state laws is inherent in "!iomeRule"
cities unltss d8fIiRdthem by the conetitutianand general
laws or the stete, and that such rs~letlon Is valid unless
In confliot with such goneral laws or the Gonstltution,
end it having been conceded that such charter amendment
in Port Arthur was adopted in compliance with the ?%me
Rulea law, the only ocncern of the court via8to determine
whether or not such parer was denfed such city by the
.
Yr. Pert Ford, ?,'aay
15, 1939, Page 11
present s8Ction 20, Article 16 of the Constitution or
the liquor Control Act passed pursuant thereto, end
whether such cherter emndmnt was in conflict with
the Stat8 laws on the eubject. Doth of these questions
wr8 answered In the negative,
You are respecttully advised that it Is the
opinion of this departc:entthat 2ection 20, Article 16
of the Constitution as amended In 1919 has the errect
Cc ropeollng ell existing legislationwhether it be in
the forr:of loco1 option statutes or charter arsendnent
statutes, that upon the adoption or this mendr,ent on
&!ey24, 1919, .Ssotion62 of the city of C7alvestonbe-
cme seP8al8d and 0r no further rorce or efrect.
Trustin5 that the fOr8gOinq answers ycur in-
quiry, we remain-
ad811 'i;illil3XES
im3istant