Untitled Texas Attorney General Opinion ( 1966 )

Honorable William D. Pratt Opinion No. C-754
County Attorney
Palo Pinto County Re: Validity of Ordinance
Mineral Wells, Texas of the City of Mineral
Wells which makes it
unlawful to sell alco-
holic beverages on
Sunday in the city
Dear Mr. Pratt: limits.
You recently requested an bpinion of this of-
fice concerning the validity of the following ordinance
adopted by the City of Mineral Wells making it unlawful
to sell beer or any alcoholic beverage on Sunday In the
city limits of Mineral Wells, Texas.
The pertinent parts of the ordinance are as
follows:
“4. It shall be unlawful for any
person to directly or indirectly sell,
offer for sale, barter, offer to barter,
exchange, or offer to exchange, give, or
offer to give, deliver, or offer to de-
liver, serve, or offer to serve, beer
or any alcoholic beverage, by retail
for consumptionon or off the premises,
within the corporate limits of the City
of Mineral Wells, in Palo Pinto County,
Texas, between the hours of 1:00 A.M.
of any Sunday and 7~00 A.M. of the fol-
lowing Monday morning.
“5. Any person violating any pro-
vision of this Ordinance shall be guilty
of a misdemeanor,and upon conviction
shall be punished by a fine of not less
than $25.00, and not more tha.n$200.00,
and each day of such violation shall
constitutea separate offense."
The authority of cities to regulate the sale of
beer is found In Article 667-10 l/2, Vernon's Penal Code.
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Honorable Willlam D. Pratt, Page 2 (C-754)
The pertinent part of such statute Is as follows:
"All Incorporated cities and towns
are hereby authorized to regulate the
sale of beer within the corporate llm-
its of such cities and towns by charter
amendment or ordinance,and may thereby
prescribe the opening and closing hours
for such sales; such cities and towns
may also designate certain zones in the
residential section or sections of said
cities and towns where such regulations
for opening and closing hours for the
sale of beer sha,llbe observed or where
such sales may be prohibited. All in-
corporated cities and towns and all Com-
missioners Courts when acting under au-
thority of this section are hereby au-
thorized In adopting charter amendments,
ordinances, or orders to distinguishbe-
tween retailers selling beer for consump-
tion bn the premises where sold and those
retailers, manufacturersor distributors
selling not for consumptionon the prem-
ises where sold, and to provide for
separate and distinct regulations.Noth-
ing herein shall authorize any incorporated
city or town to extend by ordinance or
charter the hours of sale as fixed by the
state law."
The foregoing statute gives cities the authority
to shorten the hours of sale of beer as fixed by State law.
The statute f,urthergives cities the authority to prohibit
the sale of beer in a particulararea. Moore v. McCarver,
240 S.W.2d ~443 (Tex.Clv.App.1951).
State law pr6hlblts the sale of beer on Sunday
at any time between the hours of 1:00 o'clock A. M. and
1:00 o’clock P.M., and on any day except Sunday at any time
prior to 7:00 o'clock A.M. Article 667-10, V.P.C. The
punishment prescribed by State law for selling beer with-
in the prohibited hours Is a fine of not less than $100.00
and not more than $l,OOO.OO, or by Imprisonment in the
county jail for not more than one year, or by both such
fine and Imprisonment. Article 667-26, V.P.C.
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Honorable William D. Pratt, Page 3 (c-754)
A city ordinance that prescribesa different and
lesser nunlshmentthan that fixed bJrthe State law for the
same uniiwful act Is void. Ex part; Wataon;~225S.W.2d
850 (Tex.CrIm.1949).
The Court of Criminal Appeals, In Young v. State,
267 S.W.2d 423 (Tex.Crlm.195&), declared a city ordinance
of the City of McGregor, which was very similar to the
ordinance before us, void because It attempted.toprovide
a lesser punishmentthan provided by State law for selling
beer on Sunday between the hours of 1:00 o'clock A.M. and
1~00 o'clock P.M. and on Monday prior to 7~00 o'clock A.M.
The Court recognized the right and authorityof the City
to prohibit by ordinance the sale of beer on Sunday from
1:00 o'clock P.M. to midnight on Sunday, but struck down
the entire ordinancebecause it included hours on Sunday
and Monday that were prohibited by State law with a greater
penalty than provided in the ordinance.
The Young case, supra, Is squarely itipoint with
the question before us, and therefore the Mineral Wells
Ordinance submitted to us is void for the reasons set forth
in such case.
SUMMARY
A city ordinance that prescribesa
differentand lesser punishmentfor
selling beer during prohibitedhours
than that fixed by Article 667-10, V.
P.C., for the same unlawful act is void.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
By:
Assistant Attorney General
DIiC/br
APPROVED:
OPINION COMMITTJ3E
-3625
Honorable Wllllam D. Pratt, page 4 (C-754)
W. 0. Shultz, Chairman
tinny Zwiener
Charlee Swanner
Halcolm Qulak
Pat Bailey
APPROVEDFORTHEATTORNEY GENERAL
By: T. B. Wright
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