Untitled Texas Attorney General Opinion ( 1974 )

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November 29, 1974
The Honorable Kenneth W. Cook Opinion No. H- 464
Acting Administrator, Texas Alcoholic
Beverage Commission Re: Authority of .the Alcoholic :.
P. 0. Box 13127, Capitol Station Beverage’ Commission to’
Austin, Texas 78711 issue a permit fora premise
on the campus of a state
Dear Mr. Cook: . university..
You have asked our opinion on four questions.which re!ate to the sale
of alcoholic beverages on the campus of state supported universities.’ Your
first question involves Article 666-25a, Penal Auxiliary Law~a, which pro-
vides in part that:
. . . the governing authorities of any city or
town within the corporate limits of any such city
or town may prohibit the sale of alcoholic beverages
by any dealer where the place of business of any .
such dealer is within three hundred (300) feet of any
church, public school or public hospital. . . .
You inform us that the City of Houston has enacted an ordinance which
provides in part that:
It shall be unlawful for any dealer to sell
alcoholic beverages within the corporate limits
of the city where the place of business of such
dealer is within three hundred (300) feet of any
church, public elementary, junior high or high
school or public hospital . . . .
Your first question asks whether the Houston ordinance is constitutional
and is authorized by Article 666-25a.
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The Honorable Kenneth W. Cook, page 2 (H-464)
. The basic difference between the statute and the ordinance is in its
effect on public schools. The statute includes a reference to public
schools. That term includes state supported institutions of higher
education. Attorney General Opinion M-749 (1970). The ordinance
is worded to delete public po,st-secondary institutions from its coverage.
You have advanced no indication of why you question the constitutionality
of the ordinance. The statute previously has been held to be constitutional.
Attorney General Opinion O-5160 (1943). We believe the city’s distinction
between colleges on the one hand and elementary and high schools on the,
other has a rational basis and is not barred by the equal protection clause
of the Fourteenth Amendment to the United States Constitution. This ,is.
particularly true given the recent lowering of the age at which alcoholic
beverages can be legally consumed so that virtually all college students
are now able to legally purchase and consume alcoholic beverages..
Accordingly, we find no constitutional barriers to the city ordinance.
We also believe that Article 666-25a does not prohibit the type of I
ordinance involved here. Under the statute the city is permitted but not
required to take the action outlined in the statute. The city has no obli-
gation to invoke any of the authority granted it by the statute, and we see
nothing in the statute to suggest that if any of the power is exercised, all
of it must be exercised. Accordingly, we believe the city ordinance is
valid.
In connection with your second question you inform us that a Texas
corporation holding lease rights from a state supported university has
appbed for a Mixed Beverage Permit for premises located on the campus
of that university.
Your second question is:
Does the fact that the premises sought to be
licensed are located on the campus of a state
supported university on land owned by the State
of Texas require the Texas Alcoholic Beverage
Commission to refuse the issuance of a permit
to the corporation acting as a concessionaire?
,
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p. 2124
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The Honorable Kenneth W. Cook, page 3 (H-464)
Assuming that the premises which are sought to be licensed are not
stadiums or enclosures where athletic events sponsored or participated in
by public schools are conducted, (Education Code, § 4.22) we know of no
statute which would preclude the Commission from issuing a permit.
Your third and fourth questions were presented in a supplemental
request and involve an application for a Mixed Beverage Permit for
premises on the campus of the University of Texas at Austin. Unlike
the Houston situation, no concessionaire is involved. The University itself
is the applicant.
Your third question is:
Is it constitutional for the University of Texas
at Austin to hold a mixed beverage permit issued
by the Texas Alcoholic Beverage Commission?
You have indicated that your specific concern is whether one agency of
the state can license another agency. It is not uncommon for a state
agency or its employees to be required to be licensed by another agency.
For example, drivers of state vehicles are not exempt from the require-
ments of obtaining a driver’s license. V. T. C. S. art. 6607b, 5 3; Attorney
General Opinion O-470 (1939); cf, , Attorney General Opinions C-249 (1964),
O-887 (1939), O-790 (1939), O-723 (1939). State owned nursing homes are
specifically required to be licensed. V. T. C. S. art. 4442~. An act or
practice will not be held unconstitutional unless it is prohibited by the
Constitution in express terms or by necessary implication. Lower Colorado
River Authority v. McGraw, 83 S. W. 2d 629 (Tex. Sup. 1935). You have
suggested no section of the Constitution which would prevent the Commission
from issuing a Mixed Beverage Permit to the University of Texas at Austin,
and we know of none.
Your final question is:
Does the University of Texas at Austin qualify
as an entity authorized to hold a mixed beverage
permit under the Texas Liquor Control Act?
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The Honorable Kenneth W. Cook, page 4 (H-464$
You indicate in your letter that your specific concern is whether the
University of Texas is a “person” qualified to hold a permit under the
definition of “permittee” at Article 666-3a(12), and the definition of “person”
at Article 666-3a(6). Those portions of the statute provide:
(121 ‘Permittee’ shall mean any person who is
the holder of a permit provided for in this Article,
or any agent, servant, or employee of such person.
(6) ‘Person’ shall mean and refer to any natural
person or association of natural persons, trustee,
receiver, partnership, corporation, organization,
or the manager, agent, servant, or employee of any
of them.
There is nothing in the definition of person to exclude a state agency,
and we believe the definition was intended to be broad. Without considering
whether other portions of the definition might apply to an agency of the
government, we are of the opinion that the University of Texas qualifies as
‘an organization. See Adams v. United States, 241 F. Supp. 383 (S. D. Ill.: 1965)
(holding that the United States is an organization); cr. , u,. United States,
v. Myers, 363 F.2d 615 (5th Cir. 1966); Government Employees Insurance :, .~.
Co. v. United States, 349 F. 2d 83 (10th Cir. 1965) ‘382 U.S.. lb26
(1966); Irvin v. United States, 148 F. Supp. 25 (D. S. D. 1957); Rowley ‘v.
United States, 140 F. Supp. 295 (D. Utah 1956) (all holding that the United
States is included in the term, “person or organization”), Accordingly, :
we believe t.he University of Texas qualifies to hold a permit from~the . ,:
Alcoholic Beverage Commission.
SUMMARY
The Alcoholic Beverage Commission can issue a
permit for premises located on the campus of a state
university, and the university itself may hold such a
permit.
-Very truly yours,
jHN L. HILL ,. ..
Attorney General of Texas
p. 2126
The Honorable Kenneth W. Cook, page 5 (H-464)
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
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