Untitled Texas Attorney General Opinion

Honorable Joe Kunsohik, Commissioner
Bureau.of Labor Statistics
Austin, Texas
Dear #r: Opinion No. O-3190
Re: Whether beer tavern in
rural district is "mer-
cantile establishment"
within Art. 1571 or the
Penal Code.
This will be in reference to the request contained
in your letter of February 19, 1941, for the opinion of this
department upon the follow5.ngmatter:
"Referenoe is made to Artlole 1569, as amended,
Texas Penal Code, which provides, In part, that *no
female shall be employed . .. .... in any roadside
drink and/or rood vending establishmant for more than
ni h in any one calendar day nor more than fltty-
f'o: hzgz in any one calendar week.'
"In oonneotion with your opinion No. O-1723, aatea
December 1, 1939, and.with partioular referenoe to a
beer tavern which Is located outside of the oity limits:
Woes Article 1571 of the Penal Code, when it pro-
vides that Articles 1569 and 1570 of the Penel Code
shall not apply to 'mercantile establishments,V exclude
from the provisions of Articles 1569 and 1570, supra,
such establishments commonly known as 'beer taverns'
whose main business is the sale of beer,,and, whloh
beer taverns nt the same time engage in the sale of
such additional commodities as chewing gum, cigars
ana cigarettes, but which saia adaltional ootiodities
ere Incidental to the main business of selling beer.
"Pour opinion on this question will be appreciated, in
order that we may determine what procedure, ir any, to take
on a matter that is now pending before this Department."
Articles 1569 and 1571 of the Fenal Code, as amended,
read:
tArt. 1569.
TCo female shall be employed:
"1. In any factory, mine, mill, workshop, mechan-
ical or mercantile establishment, hotel, restaurant,
non. doe iumson``, page L
rooming house, theater, moving p,iotureshow, barber
shop, beauty shop. road side.drink and/Or food vend-
ing establishment, telegraph, telephone or other oi-
fioe, express or transportation company, or any State
institution, or any other establishment, institution
or enterprise where females are employed, for more
than nine (9) hours in any one(l) oalendar de nor
more ~thanfifty-four (54) hours in any one (17 oalen-
dar week.
"2 . In any laundry or cleaning and nresslng
establishment for more than fifty-four (54) hours in
one (1) calendar week; the hours of work to be SO ar-
renged as to permit the employment of suoh female at
any time so that she shall not work more than a max-
lmun:,ofeleven (11) hob:rsduring the twenty-four (24)
hour period of one (1) day. (Underscoring ours)
“3. In any faotory engaged In the menufacturs oi
cotton, woolen or worsted goods or articles of merchandise
manufaotured out of cotton goods, for more than ten (10)
hours In any one (1) calendar day nor more than sixty
(60) hours in anyone calendar week."
-Art. 1571. The two preoeding Articles shall not
apply to stenographers and pharmaoists, nor to mercantile
establishments or telegraph or telephone companies in
rural distriots ana ih cities or towns or vf.llanes of
less than three thoussuWlnhab1tants. as shown by the
preceding Federal oensus, nor to superintendents, matrons,
nurses and attendants employed by, in, and about such
Orphans' Bomes as are charitable Institutions, not run
far profit, and not operated by the State. In oases 0r
extraordinary emergencies, such as great public oalamities
or where it becomss neoessary~for the protection of'human
life or property, longer hours may be worked." (Undersooring
ours)
Rote that certain classes of businesses are apeo-
iriea in Article 1569. Among these are mercantile establlah-
ments, restaurants, etc. In 1933 b amendment (Aots 1933,
l&-a Legislature, page 285, Ch. 114v the Legislature added
two other classes of business whloh we have undersoored; viz.,
beauty shops and road-side drink and/or food vending estab-
lishments. Article 1571 exempts certain classes of business-
es situated in rural districts and in cities, towns and vil-
lages of less than three thousand Inhabitants from the pro-
visions or Article 1569. Among these classes of businesses
so exempted are mercantile establishments and telephone and
telegraph companies.
Commenting on these classes of businesses referred
to in Articles 1569 end 1571 our Court of Criminal Appeals
said in Glanges v. State (Ct. Cr. App. 1920) 220 S.X. 95:
"Restaurants, from the terms of the statute,
are in e separate class from mercantile estab-
lishments, and ere not included in the clause
in the statute which exempts from I.tsoperation
mercantile establishments in towns in which the
population is 3,000 or less. l! parte &own,
21 S.D. 515:.114 N-7:.303."
In Opinion No. O-1723 you were advised that Artioles
1569 and 1570 apply to all sections of the State whether rural
districts, cities, towns or villages, regardless of the popula-
tion of such subdivision unless they come within the exemption
contained in Artiole 1571.
It is at once apparent that the Legislature has sing-
led out "road side drink and/or food vending establishments" as
something different and apart from those businesses falling
within the ordinary definition of a Wercantile est@.ishment.*
Only the latter is exempted.
Consequently, we are not prepared to say that a beer
tavern locotea outside of the city limits comes within the ex-
emption for "mercantile establishments*'in Article 1571.
You do .not describe the b%slness in question other
than as a tavern engaged mainly in the sale of beer and es
an incident to this business selling such ccanuoditiesas ehew-
ing gum, tigers and cigarettes, i"lhile'we do not undertake
to advise what business might fall within the term "road side
drink and/or food vending establishment" you are advlsea that
if the business inqur&&ion engages mainly in the Sale of
beer, and is looated along 8 public road it falls squarely
within the olass of businesses enumerated in Article 1569
and is not exempted by Artiole 1571.
',Verytruly yours
ATTORREIGERERAL OFTEXAS
By /s/ James D. Smullen
James D. Smullen
Assistant
JBS:js:jrb
APPROVRD MAR. 10, 1941
/s/ Gerald C. Mann
A'TORNEI GEN?ZRALOF TEXAS
APPROVED OPIXION COAMITTEE
W BIYB,Chairman