Untitled Texas Attorney General Opinion ( 1946 )

THEA'ITORNEYGENERAL
OF TEXAS
GROVER SEIJJiFE AUSTIN aa,-
-N
*-IToRNEY GI3NnmzAl.
Honorable Bert Ford, Administrator
Texas Liquor Control Board
P.O. ~0``56 -'
Austin 1, Texas
Dear Sir: Opinion No. O-7477
Re: Under the given facts is the
applicant entitled to a package
store permit at a certain loca-
tion?
This acknowledges,receipt of gcur letter of recent date
which reads:
"Yai will find attached a copy of a letter
and a~diagram from Ron: T. A. Hicks, City Attorney,
of Wichita Falls, which is self-explanatory.
"I. J,iWolfson seeks a Package Store Permit
fotia lbcation leas than 300 feet-.frorn7213 Ohio
Avenue; which is the entrance to a building where
the rear portion of the second story of said buFld-
ing is used by a mission, which is more than 300
feet from the main door of the premfses for which
a Package Store Permit Is sought.
"Under the circumstances, Is I. J. Wolfson
entitled to a Package Store Permit?"'
Mri,T. A. Hicks letter of October 25, 1946, to you
reads :
"I have your letter of October 24, 1946 con-
ceriiingSection 25A, Page 25, Article 1 of the
Texas Liquor Control Act, also the Attorney Gen-
eral's.opFnlon of March 19, 1940.
"I``donot believe the oplnLon answers our.
question. I. J. Wolfson desires to open a'Package
Sttbreat 513 8th Street, as yotiwill~note by the
=P. The Chapel we refer to/is located In a bulld-
ing 7213 Ohio Avenue being the entrance to a 2-story
building. The religious organization as shown by
the map enclosed in our former letter is on the second
Honorable Bert Ford, page 2 o-7477
floor and In the rear of the building. From the
entrance at 7213 Ohlo Avenue leading up a stair
way to the second floor and down the hall to the
door in which the Mission Is located is some 73
feet. This door and entrance to the Chapel is
over 300 feet away, so that would place the Mission
more than 300 feet from 513 8th Street, so keep
In mind that no portion of the Chapel is on the
lower floor.
"We conceed that from 513 8th Street to'the
opening door of 7213 Ohio Avenue is less than 300
feet, by measuring up stairs and back to the rear
of the building on the second floor the Chapel is
located more than 300 feet from 513 8th Street.
"For instance Is the front door to any buildirig
regardless of its height and size the controlling.
factor? For example in your City from some point,
a package store was within 252 feet of the Little-
field Building; say its front door, but up on the
10th story some religious organization rented rooms
for a Mission ana by measurements it would be more
than 300 feet to their particular location. Would
the front door of the Littlefield Building be the
controlling factor in'aenying a Package Store Permit
or would-it be the distance from the door of the
office space used by the Mission?"
In the recent case of Stubbs v. Texas Liquor Control
Board, 166 S.W. (2d) 178, error refused, the Court of Civil
Appeals quoted with approval the following language of 15 R.C.L.
372-373:
"In applying the prohibition against sales
near churches, great~llberalltg is exercised . . .
Any structure used principally for religious wor-
8hiD and Bible study Is Included (within the mean-
ing of a church building) although some of its
rooms may be used by socletles incidental to the
church. D . -' (Words In parentheses and emphasis
added).
Thus, the question here presented is not one of measure-
ment but is rather a question as to whether or not the building
In which the Mission Chapel is located Is used principally for
religious worship. Such question Is not for this department to
pass upon.
FOP your information, however, we cite 30 American Jur-
isprudence 437:
Honorable Bert Ford, page 3 o-7477
"However, the restraint (against liquor sales
near churches) is usually held not to apply to
places used occasionally for preaching . . . or a
building occasionally used for entertainments for
the benefit of a church, or to one used by an un-
organized body as a mission for Bible study and
meetings, partlcularls when most of the building
is used for residential and commercial purposes."
(Words in parentheses and emphasis added).
See also George et al v. Board of Excise of City of
Elizabeth, 63 A. 870, affirmed in 67 A. 599.
It Fs, therefore, the opinion of this department that:
(1) If the building in question Is used principally
for purposes of religious worshlp, then I. J. Wolfson Is not
entitled to a package store permit at 513 8th Street.
(2) If sala building Is not used principally for pur-
poses of religious worship, then I. J. Wolfson Is entitled to
a package store permit at 513 8th Street.
We trust that the foregoing fully answers your question.
Yours very truly
ATTORNEY GENERAL
.~ OF TEXAS
By s/Wllllam E. Stapp
WilllainE. Stapp
Assistant
APPROm NOV 15, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman