Untitled Texas Attorney General Opinion ( 1969 )

Hon. Charles A. Allen Opinion No. M-335
Criminal District Attorney
Harrison County Re: Sale or disoensinq
P. 0. Box 776 of alcoholic beverages
Marshall, Texas in City of Marshall
involving annexed
dry area, and re-
Dear Mr. Allen: lated questions.
Your opinion request asks our opinion concerning the
captioned inquiries. The factual matters presented in sub-
stance are not in dispute and are hereinafter related.
On May 12, 1966, an area was annexed to the City of
Marshall, Harrison County, Texas, which City was, at the
time of annexation, a wet area for the sale of all alcoholic
beverages for off-premises consumption.
Subsequent to such annexation and on October 8, 1966,
an election was held by the voters of the then City of Marshall
and the following questions, either in substance or in fact,
were presented:
A. For or against the sale of all alcoholic beverages,
on premises consumption.
B. For or against the legal sale of all alcoholic
beverages, off premises consumption.
The voters of the City of Marshall voted against pro-
position "A" above and voted for proposition "B" above.
Your inquiries appear to be divided into (3) separate
categories, to-wit:
(1) Is the annexed area a wet area for the legal sale of
all alcoholic beverages for off-premises consumption?
(2) Can a person operate a liquor store in such annexed
area?
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Hon. Charles A. Allen, Page 2 (M-335)
(3) Can a person operate a private club under the "pool"
system in the annexed area?
Your office has advised that there is no question con-
cerning the validity or legality of the local option election.
Tt has been held by our state courts that when a local
option election has been held in a certain area, which area
voted "dry," and that area was subsequently annexed to a city
that is "wet," then the annexed area remains "dry" until the
qualified voters of the annexed area decide otherwise in an
election held for that purpose. Hawthorne v. Texas Liquor
Control Board, 113 S.W.2d 577 (Tex.Civ.App. 1938, no writ);
Houchins v. Flainos, 130 Tex.413, 110 S.W.2d 549 (1937).
The distinction between these cases last cited and your situ-
ation is that there was a local option election after the
annexation.
Since the qualified voters in the annexed area participated
in the local option election subsequent to its annexation, the
latest expression of the entire populace of the City of Mar-
shall is for the sale of all alcoholic beverages for off-
premises consumption only. This would mean that the entire
city limits of the City of Marshall as it existed on October
8, 1966, is a "wet" area for the sale of all alcoholic bever-
ages for off-premises consumption only. cf: Powell v. Smith,
et al., 90 S.W.2d 943 (Tex.Civ.App. 1936, no writ).
It is the opinion of this office that the annexed area
to the City of Marshall is a "wet" area for the sale of all
alcoholic beverages for off-premises consumption only, and
the first question should therefore be answered in the affirm-
ative.
Under Article 1, Section 15 (8) of the Texas Liquor Con-
trol Act (Article 666, V.P.C.), a person would be authorized
to secure a Package Store Permit to sell and dispense the
intoxicating beverage so listed under Subsections (b) through
(d) for off-premises consumption only. Since the annexed area
is a "wet" area, then such person could secure a Package Store
Permit for such annexed area.
It is also our opinion that the second question should
be answered in the affirmative.
Article 1, Section 15 (e) of the Texas Liquor Control
Act (Article 666-15(e), V.P.C.) is known as the "Private Club
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Bon. Charles A. Allen, Page 3 (M-335)
Act." Section l-l (b) defines a "Locker System" and an un-
certainty is said to arise in the statute because no mention
is contained therein concerning whether such method of dis-
pensing alcoholic beverage is confined to a "wet" or "dry"
area. Section l-l (c) provides as follows:
"(c) 'Pool System' shall mean that system of
liquor storage where all members of the pool parti-
cipate equally in the purchase of all alcoholic
beverages and the replacement of all alcoholic bever-
aaes is paid for bv monevs assessed and collected in
advance 'from each member-equally. Such pool system
shall be legal only in an area which has been voted
'wet' for all alcoholic beverages by a malority of
voters at an electron held under local option."
‘1Emphasis added.)
We are advised by the Texas Liquor Control Board that a
private club may be issued a Private Club Registration Per-
mit in an area that has been voted "wet" for the sale of
all alcoholic beverages for off-premises consumption. The
Texas Liquor Control Board is charged with the duty and res-
ponsibility by the Legislature with administering and en-
forcing the Texas Liquor Control Act. Although our courts
are not bound by a department or administrative construction,
such construction placed on a statute by a department or
administrative body will ordinarily be adopted and upheld.
Armco Steel Corporation v. Texas Employment Commission, 386
S.W.Zd 894 (Tex.Civ.App. 1965, error ref. n.r.e.1. This is
particularly true when it is necessary to resolve any doubt
or uncertainty in the statute. Texas Employers' Insurance
Association v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946).
Mhile we have been referred to no rule, regulation or
directive of the Texas Liquor Control Board placing such con-
struction on the underscored portion of Article 1, Section
15 (e)-1 (c) of the Texas Liquor Control Act, we are never-
theless advised that this administrative construction has
been consistently followed for a number of years and the
Legislature, with presumed knowledge 'of'that policy, has
not seen fit to change it by statutory amendment in subse-
quent legislative sessions. Therefore it is the opinion of
this office that a person would be authorized, upon obtaining
a permit, to operate a private club under the "pool" system
within the corporate city limits of the City of Marshall, which
includes the annexed area, as the limits existed in the
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Hon. Charles A. Allen, Page 4 (M-335)
October 8, 1966, election. It follows that we must answer
the third question in the affirmative.
SUMMARY
When an area is annexed to a city,
which city is wet for the sale of all alco-
holic beverages for off-premises consumption,
and there is, subsequently, a legal local
option election, which includes the annexed
area, wherein the voters approve the sale
of all intoxicating beverages for off-premises
consumption, then the entire city, including
the annexed area, is wet for the sale of all
intoxicating beverages for off-premises con-
sumption.
A person may operate a package store in
an area annexed to a city under the foregoing
facts.
A person may dispense intoxicating
beverages in a private club under the "pool"
system in an area as described above and
when such area has legally voted in a local
option election for the sale of all intoxi-
cating beverages for off-premises consumption
only.
V&j truly yours,
u
Prepared by 0. Jay Floyd
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice Chairman
Monroe Clayton
Lonny Zwiener
Larry Craddock
1.7.0 . Shultz
W. V. Geppert
STAFF LEGAL ASSISTANT
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