Untitled Texas Attorney General Opinion ( 1966 )

February 22, 1966
*Honorable W. C. Lindsey Opinion NO. C-622
Criminal District Attorney
Jefferson County . Re: Under the stated facts
Beaumont, Texas whether the organization
in question is acting
illegally under the lsws
of the State of Texas and
in particular, in viola-
tion of the "Texas Open
sacmtuvP&rt; $6;~3
Dear Mr. Lindsey: s -, . . .
In your request for an opinion of this office, you
state the following facts and ask the following questions:
_. "A fraternal``,organization
is furnishing,
.~... -,.
-- on its premises, mixed alcoholic beverages and
beer to its members for a cash consideration
here in Jefferson County. They are doing so
under the 'Locker System' and/or 'Pool System'
as same is described in Article 666-15 (e)
Section l(b) and (c), Penal Code of Texas.
This organization does not have from the State
of Texas, or sny of its agencies or subdivi-
sions, a license or permit to deal in alcoholic
beverages, nor does it have a private club regis-
tration permit fromthaTexas Liquor Control
Board. We feel that it is a 'Fraternal Club'
as that term is used in Art. 666-15 (e) Sec. 12,
Texas Penal Code.
"Under the above facts, we request your
opinion on the following:
"1. Is the organization acting illegally
under the laws of the State of Texas and in
particular, in violation of the 'Texas Open
Saloon Law' (Art. 666-3, Penal Gode) and
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I ‘.’
Hon. W. C. Lindsey, Page 2 (c-622)
Art.667-3, Penal'Code?
"2. May such an organization obtain a
Private Club Reaistrat1on~Penni.tunder the
laws of theState of Texas?
. . . .II
II
.
The controlling question appears to be whether the
fraternal organization is exempt from the application of the
statute, being House Bill 892, Acts of the 57th Legislature,
Regular Session, Ch. 262, p. 559. (Codified in Vernon's
Penal Code as Article 666-15(e) of the Texas Liquor Control
Act).
/I27; V. P. C.)of the subject
Section 1A (Art. 666-15e --
act provides:
: "Provided, however, that nothing in
~Section 15(e) of Article 1 of the Texas
Liquor Control Act shall apply to Fraternal
or Veterans Clubs." '~
.. ..~
In Attorney GeneralOpinion No. ``-111.8(1961)
this office had occasion to consider this question and to
hold that veterans and fraternal organizations were 'exempt"
from the application of such Act. To "exempt" from the law
means to relieve, excuse, or set free from a charge, duty,
burden or liability imposed upon the general class to which
the individual exempted belongs. Black's Law Dictionary,
Third Ed., p. 720; 34 C.J.S. 1.377-1378,"Exempt", and cases
cited. .:Accordingto the latter text, when used as a,verb,
'"The term is not a technical'one but is a plain English
word, meaning to clear, ,to except or excuse from some
burdensome condition or obligation or the operation of
some law~to which others are subject. .. .'.
Thus .the'term "exempt" must 'be distinguished from
the term "exclude", which, according to 33 C.J.S. 111,
"Exclude",,~is:A word in common usage, defined as meaning
to sh;t out. . ./or prohibit; to preclude; also to except
. . ,.. It is apparent that the legislature expressed its
intention under the act clearly and unambiguously to
relieve fraternal orgenizations from the operation of the
law in question and from any duty or liability to qualify
under same. The language used is too clear for construction.
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Eon. w. C. Lindsey, Pa@;&3 (c-622)
As stated in 53 Tex.Jur.2d 174, Statutes, Sec. 123,
"There is no room for construction when
the law is expressed in plain and unambiguous
language and its meaning is clear and obvious.
In such a case the law will be applied and
enforced as hit reads, regardless of is policy
. or purpose, or the justice of its effect. In
other words, a court is not authorized to
indulge in conjecture as to the intention of
the legislature, or to look to the Gonse-
quences of a particular construction, unless
the meaning of the statute is doubtful."
The intent of the ,Legislaturebeing clearly ascer-
tainable, it must be followed and govern even though a
literal meaning of the words used in the statute is not
followed. ,The Statute should never be given a construction
that leads to uncertainty, injustice, or confusion. Woods v.
State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 7 (193-r .
We here reaffirm and concur in correctness of Attorney
-general Opinion No. ``-1118 (1961) and the necessary implica-
tions of such opinion. Itnecessarily follows that the organi-
zations inquired about are not excluded but are exempted from
the Act. Any other ruling would necessarily declare that the
fraternal and veterans organizations were excluded from the
Act entirely and notentitled to operate a private club.
Such a construction would render that portion of the law
unconstitutional because it would constitute illegal class
legislation. This is so because legislation which accords
unequal treatment to uersons similarlv situated is held to
,vioiate the equal protection clause 05 the federal consitu-
tion. Associated Indemnity Corp. v. Oil Well Drilling Co.,~
258 SiW.2d 523 affi d 153 Tex 153 264 S.W.2d b97 (1955).
If an individual be zt%id a faciiitv & convenience which
is furnished to others under substan'tiallythe same circum-
stances, he may properly complain of the invasion of his
constitutional rights to equal protection of the law. Beal
v. Holcombe, 193 F.2d 384, cert. den. 74 S. Ct. 783, 347m.
14 (1951). Even though the Texas Liquor Control Act is an
exercise of the police power, such power is subject to judi-
cial review and may not be extended to deprive citizens of
property without equal protection of the law. Missouri-
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E : ,
Hon. W. C. Lindsey, Page 4 (c-622)
Kansas-Texas R. Co. of Texas v. Rockwall CounFj Levee .I@. Dist.
No.3 . arvey v. Morgan,
'mS:W.2d ``?*($e;.',iv.A``:1954, e& ref., n.r.e.).
Since it is the duty of a court-r possible to,indulge
a construction in favor of validity and constitutionality
(53 Tex.Jur.2d 225, Statutes, Sec. 158), we must reject
that construction.
.
We are reinforced in our opinion by the further fact
that if the statute is subject to construction, then the Legis-
lature has twice met in regular session since Attorney General
Opinion ``-1118 (1961) and has acquiesced in such ruling of
"exemption" and not seen fit to amend, alter, or change the
Ac;el;;lthis respect as interpreted and followed by the Attorney
. Such departmental construction will ordinarily be
adopted and upheld under these circumstances. 53 Tex.Jur.2d
259, 262, Statutes, Sec. 177, and cases cited. The doctrine
of legislative acceptance would thus be applicable and the
Legislature must be deemed to have accepted such construction.
Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d .
515 1952 . Calvert v. Houston Lighting & Power Co., 36g.S.W.2d
502 Tex.&v.App., 1963 error ref., n.r.e.).
.
.._. -.
--
Although apparently~the exempted organizations have
generally been following the abave construction, we further
note that during the past five-year period no case has reached
the appellate courts in;which the correctness of this construc-
tion has been challenged., We hold, therefore, that the veteran
end fraternal organizations are not required to obtain a permit,
the law bein Q inapplicable to them4 and they are not in viola-
tion of the 'Texas ~Open Saloon Law , Art. 666-3 and Art. 667-3,
V.P.C., merely by failure to obtain a permit or otherwise comply
'with the provisions of Sec. 15 (e) of Art. 666.
This opinion shall not be construed to mean that the
veterans and fraternal organizations are exempted from other
provisions of the Texas Liquor Control Act and which are not
covered in Sec. 15 (e), Art. 666, V.P.C.
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.
Hon.,W. C.:Lindsey, Page 5 (c-622)
SUMMARY
Fraternal or Veterans Clubs are
"exempt" from the provisions of
. Section 15 (e) of Art. 666, V.P.C.,
and are not in violation thereof or
acting illegally in selling alcoholic
- beverages to its members on its pre-
mises without a license or permit as
provided for and required in such law
for those not so exempt from its
provisions or requirements.
Yours very truly,
WAGGONER CARR
Attorney General
_.
~._. -.
$i!iiis*
-_
By:
Assistant
KST:cf
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Flowers
John Fainter
John Pettit
Ralph Rash~
APPROVRUFORTHRATTORNRY GRNRRAL
BY: T. B. Wright
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