Untitled Texas Attorney General Opinion ( 1961 )

EATTOBNEYGENERAL OFTEXAS September j, 1961 Honorable Coke R. Stevenson, Jr. Opinion No. W-1126 Administrator Texas Liquor Control Board Re: Whether any provisions Austin, Texas of H. B. 533, 57th Legisl'Btureis uncon- stitutionalas violative of Article XVI, Section 20 of the Texas Con- Dear Mr. Stevenson: stitution. You have requested an opinion as to whether any pro- vision of H. B, 533, passed by the Regular Session of the 57th Legislatureviolates Article XVI, Section 20 of the Constitution of Texas. H. B. 533 contains five principal provisions,to-wit: 1. It creates a new class of wholesale permits. 2. It permits the holder of a manufacturer'slicense to obtain a brewer's permit upon applicationand payment of the required fee. 3. It provides that a person who has been the holder of a brewer's or manufacturer'spermit for a certain location shall not be denied a renewal of such license solely because the location is within an area which has been subsequently voted lldry"as to the sale of beer or ale by locaL option. The holder of such a ermit in a Wry" area is authoriaedby the bill to do all th% gs which a holder of such a permit is authorisedto do under any provision of the Liquor Control Act except to sell beer or ale contrary to the local option prohibition. 4. It provides that, under certain cire&stances, a person may hold a manufacturer'sor brewer'8 license fbr a number of years without actually~engagingin the m&ifaizture of beer and ale at the licensed location, if the permittee meets certain requirementsconcerningthe beginning of con- struction of a brewing or manufacturingplant at the licensed location. 5. It permits Texas manufacturersand brewers to brew, package, label, and ship beer and ale which do not meet Honorable Coke R, Stevenson,Jr,# Page 2 (W-1126) a Texas specificationfor alcoholic content, packaging or labeling to other states for sale in those states. Article XVI, Section 20 of the Constitutionof Texas provides that the open saloon is prohibitedand delegates to the Legislaturethe power to regulate the manufacture,sale, possession and transportationof intoxicatingliquors. It requires the Legislatureto enact local option laws which "shall contain provisionsfor voting on the sale of intoxi- cating liquors of va~fous types and various alcoholic content." (Emphasisadded) It also provides in See, (e) that: "In all counties, Justice's precincts or incorporatedtowns or cities wherein the sale of intoxicatingliquors have been prohibited by local option elections held under the laws of the State of Texas and in force at the time of the taking effect of Section 20, Article XVI of the Constitutionof Texas, it shall con- tinue to be unlati to manufacture,sell, barter, or exehange in any such county, $ustfce's precinct or incorporated tcmn or city, any spirftuous, vinous or malt liquors or medicated bitters cap- able of producing intoxicationor any other in- toxicants whatsoever, for beverage purposes, un- leas and until a majority of the qualified voters in such county or political subdivisionthereof voting in an election held for such purpose shall determine such to be lawful D 0 0" (Emphasisadded.) When H. B, 533 is laid along side the constitutional provisions it becomes apparent that the first portion thereof which establishesa new class of wholesaler'spermits is au- thorized by the constitutionalprovision authorizingthe Legis- lature to regulate the sale, manufacture,possession and trans- portation of intoxicatingliquors. Likewise, it becomes ap arent that the next provision of the act which authorizesa hofder of a manufacturer'slicense to obtain a brewer's permit is also within the legislativepower to create classes of permits and set up the criteria by which one may obtain such permit. The next portion of the act purports to authorize the holder of a Brewer's Permit or Manufacturer'sLicense for a location within an area which has, aubsequentto the date he obtained the permit, voted against the sale of beer and ale Honorable Coke R. Stevenson, Jr., Page 3 (WW-1126) to continue to manufactureand brew such products within the YrcIryf' area and to exercise all the powers of such a permit holder except the power to sell beer and ale in violation of the local o tion election, In Opinion No, WW-89 this office considered8. B. 225, Acts of the 55th Legislature,1957, which purported to grant tQ the holder of a Manufacturer's License the right to continue operations at the same location although the area in which the manufacturingplant was located had been voted "dry" as to the sale of hi% product., We held that S. B. 225 was an act regulating the manufactureof in- toxicating liquor by allowing such manufacturewithin certain areas and as such that it was clearly within the authority granted by the Constitution. We went on to point out, how- ever, that S. B. 225, at first glance, seemed to authorize the sale of intoxicatingliquor in an area which had assumed, by reason of a local option election, a "dry" status as to his product, because it said that it authorizedthe manufacturer to "do all things which a manufacturer18 authorizedto do under any other provision of the Texas Liquor Control Act, including but not limited to manufacture,possession,storage, packaging and transportationto areas where the sale of beer is legal." But we pointed out that this provision of the bill did not authorize the sale of beer in a dry area because the Legis- lature did not have the power to grant such authority in an area that is "dry" as a result of a local option election. In H. B. 533, however, this problem is not present because the act itself % ecificallydenies to the holder of a brewer's or manufacturerPa permit who is located in a **dry"area the right to sell beer or ale contrary to said local option prohibition. This provision is, therefore,not in violation of the consti- tutional provision of Article XVI, Section 20. It should be pointed out that Article XVIl Section 20(c) would not have any effect on holders of any permits or licenses under con- siderationhere because the license or permit would not have been granted in the first instance until the ~areahad been voted "wet" in a local option election subsequentto the adoption of Article XVI, Section 20, The provision of H. B. 533 which allows Texas brewers and manufacturersto manufactureproducts which do not meet the alcoholic content, packaging or labeling specifications of Texas for sale outside of Texas is authorizedby the consti- tutional provision allowing the Legislatureto regulate the manufactureand sale of alcoholic beverages. The provisions allowing persons to hold brewer's or manufacturer'slicense without actually engaging in the brew- ing or manufactureof alcoholic beverages is also controlled Honorable Coke R. Stevenson,Jr., Page 4 (WW-1126) by the same constitutionalprovigiQn and is not contrary to Section XVI of Article 20 of the Texas Constitution. SUMMARY H, B. 533.passedby the Regular Session of the 57th Legislaturedoes not violate the provisions of Article XVI, Section 20, Consti- tution of Texas, Very truly yours, WILL WILSON Attorney General of Texas SRW/br ByJzzdi Assi&nt Attorney General APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Riley Eugene Fletcher F. William Colburn Dwain Erwin Marvin Thomas REVIEWED FOR THE ATTORNEY GENERAL BY: Howard W. Mays