Untitled Texas Attorney General Opinion ( 1970 )

December 15, 1970
Honorable Joe Resweber Opinion No. M- 749
County Attorney
Harris County Courthouse
Houston, Texas 77002 Re: Is the University of
Houston a "public school"
within contemplation of
Dear Mr. Resweber: Article 666-25a, V.P.C.?
You recently requested the opinion of the Attorney
General on the following question:
"Is the University of Houston a 'public school'
as that term is used in Article 666-25a, Vernon's
Texas Penal Code."
Article 666-25a, Vernon's Penal Code, reads as follows:
"The Commissioners' Court of any county
in the territory thereof outside incor-
porated cities and towns and the govern-
ing authorities of any city or town with-
in 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, the measurements
to be along the property lines of the street
fronts and from front door to front door
and in direct line across intersections
where they occur." [Emphasis Added.1
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Honorable Joe Resweber, Page 2 (M-749 )
In the case of Ussery v. City of Laredo, 65 Tex. 406
(18861, the Supreme Court of Texas based its decision UDOn
the premise that public schools are only those which ark
established in the manner provided by law and recognized
as such by the proper authority.
A "public school" or "public hospital" as used in the
statute regulating the sale of alcoholic beverages is not
defined in the Texas Liquor Control Act. The Act (Article
661-1, etc., Vernon's Penal Code) was enacted in the exer-
cise of the police power of the state. Jones v. Marsh,
148 Tex. 362, 224 S.W.Zd 198 (1949). It"musteliberal-
ly construed to accomplish the expressed and implied intent
of the legislature." Liquor Control Board v. Super Savings
Stamp Co., 303 S.W.2d 536 (Tex.Civ.App. 1957, error ref.,
n.t.e.).
In accordance with the well-settled canons of statu-
tory construction, we must presume that the words employed
are to be given that meaning which would ordinarily be
understood from the context, subject matter, and intent
of the Legislature. While the term "public hospital" is
not a word of common usage defined in the dictionary, the
term "public school" is there defined generally as a
school that is tax-supported or established and maintained
at public expense. It is one generally open and public
to all in the locality. This is in harmony with the mean-
ing of the term as found by the courts generally, as dis-
tinguished from a private, parochial, sectarian, or de-
nominational school. See 78 CJS 606-607, Schools and
School Districts, Sec. 1. Whether a school is to be
deemed oublic or wrivate or denominational is to be deter-
mined b$ its cont;ol. See State ex rel Johnson v. Boyd,
217 Ind. 348, 28 N.E.2d 256 (1940); Gerhardt v. Heid,
66 N.D. 444, 267 N.W. 127 (1936).
It has been held that a private trade school operat-
ing for profit was not a "public school" within the mean-
ing of Article 666-25a. Maple Lawn Baptist Church v.
Lawrence, 442 S.W.2d 910 (Tex.Civ.App., 1969, error ref.,
n.r.e.) The statute has also been construed to apply to
a public school librarv buildinq but not to a depot or
stadium used by the high school-students. Rodgers v. Texas
Liquor Control Board, 449 S.W.2d 292 (Tex.Civ.App., 1970,
no writ). However, it should be here noted that Article
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Honorable Joe Resweber, Page 3 (M- 749 )
4.22 of the Texas Education Code, prohibits "the possession
of any intoxicating beverage while entering or inside any
enclosure, field, or stadium where athletic events sponsored
or participated in by the public schools of this state are
being held. . ."
It is noted that the Texas Education Code is made
generally applicable "to all educational institutions
supported either wholly or in part by state tax funds
unless specifically excluded." Article 1.04, Texas
Education Code. Its purpose was "to bring together in
a unified and organized form the existing law relating
to tax-supported educational institutions and to sim-
plify , clarify, and harmonize existing law relating
both to the public school system and to the state-
supported institutions of higher education." Article
1.03, Texas Education Code. It is evident from the
use of the term "public school" as used throughout
the Code that it is meant to include tax-supported
educational institutions, which are not necessarily
confined to elementary and secondary education but to
higher state-supported institutions as well. Further-
niore, we observe that a "public school" was defined in
a recent statute, Article 2922-1.02 (a) (2), concerning
the establishment of the Teachers' Retirement System:
"'public school' means any educational institu-
tion or organization in 'this state which under
the laws of Texas is entitled to be supported
whollv or wartlv bv state, county, school dis-
trict.; or -
other -municipal-corporation
- funds;. . ."
We are advised and supported in our view by the Al-
coholic Beverage Commission, which is charged with the
administration and enforcement of the Liquor Control
Act that their departmental construction of the term
"public school," as used in Article 666-25a, has been
regarded as meaning any educational institution which
is either wholly or in part supported by state or local
governmental funds. The courts will ordinarily follow
a construction placed on a statute by the department
charged with its administration or enforcement where the
statute is uncertain and if the construction is reasonable.
53 Tex.Jur.2d 259, Statutes, Sec. 177; State v. Harris,
342 S.W.2d 177 (Tex.Civ.App., 1960, no writ).
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Honorable Joe Resweber, Page 4 (M- 749 )
The University of Houston was established as a state-
owned educational institution, which is supported by state
tax funds. See Article 2615g. Vernon's Civil Statutes. As
such, it would constitute a "public school" within the mean-
ing of Article 666-25a. In Xavier University v. Thigpen,
151 So. 2d 550. 553 (La.Cir.Ct.. 1963). the court had before
it a somewhat similar question.involving whether a Univer-
sity might be included within the term "school" as used
in the liquor control ordinance. The court apparently
found no difficulty in holding that the ordinance included
universities or colleges as schools.
It is to be observed that the Legislature failed to
except from the term "public school" any public schools
of higher education. In construing a statute it is not
ordinarily permissible to imply an exception, and excep-
tions may not be engrafted on a statute by implication
merely because there may seem to be a reason for doing
so. 43 Tex.Jur.2d 209, Statutes, Sec. 144.
As stated in Clark v. Liquor Control Board, 357 S.W.2d
176, 178 (Tex.Civ.App., 1962, no writ), the question of
seliing beer to be consumed at a prohibited location under
the terms of the act is ultimately a "political" one for
the voters and the Legislature, and it is not within the
province of the court to substitute its judgment therefor.
The Legislature intended the Liquor Control Act as an
exercise of the police power of the state to protect the
health, welfare, peace and temperance of its people and
all its provisions are to be liberally construed for the
accomplishment of that purpose. Munoz v. City of San
Antonio, 318 S.W.Zd 741 (Tex.Civ.App, 1958, error dism.
w.; Texas Liquor Control Board v. Super Savings
Stamp Co., 303 S.W.2d 536 (Tex.Civ.App., 1957, ref. n-r-e-).
One of the primary objects sought to be obtained by the
Legislature in the Liquor Control Act is the,prohibition of
the sale of alcohol and beer to minors and in any way allow-
ing the presence of alcohol in the State of Texas to have
a detrimental effect upon the welfare of minors. It is
common knowledge that many minors as well as adults attend
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Honorable Joe Resweber, Page 5 (M- 749 1
our colleges and universities.
In view of the primary object of the Liquor Control
Act, and considering the consequences of a contrary con-
struction, it is reasonable to conclude that the Legisla-
ture intended the words "public schools" to encompass all
public schools, of all educational levels; therefore, it
is our opinion that the University of Houston is a "public
school" within contemplation of Article 666-25a. If tax
supported universities and colleges are not to be deemed
"public schools" as herein considered, the Texas Legis-
lature is the proper body to make such a provision.
SUMMARY
The University of Houston is a "public school"
within contemplation of Article 666-25a, Vernon's
Penal Code.
General of Texas
Prepared by Guy C. Fisher
Assistant Attorney General.
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Glenn Brown
Linward Shivers
James McCoy
Robert Flowers
Bob Lattimore
MEADE F. GRIFFIN
Staff Legal Assistant
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