Untitled Texas Attorney General Opinion

Novmber 18, 1986
Honorable Charles D. Houston Opinion No. m-577
District Attorney
One East Main Re: Whether a commissioners court
Bellville, Texas 77418 may adopt drinking hours more re-
strictive than those permitted under
section 105.03 of the Alcoholic
Beverage Code
Dear Mr. Houston:
You inform us that the commissioners court of Austin County is
considering adopting an olrilerthat would allow the sale of mixed
beverages in unincorporated areas of Austin County between midnight
and 2:00 a.m. on Thursday, Saturday, and Sunday mornings, but not
on other mornings. YOU ilsikwhether such an ordinance would be
permissi'bleunder section 1)5.03(d)(l) of the Alcoholic Beverage Code.
Section 103.03 of the Alcoholic Beverage Code sets out the hours
of sale for mixed beverages:
(a) No person may sell or offer for sale mixed
beverages at any time not permitted by this
section.
(b) A mixed beverage permittee may sell and
offer for sale mix,zdbeverages between 7 a. m. and
midnight on any day except Sunday. On Sunday he
may sell mixed beverages between midnight and 1:00
a. m. and between noon and midnight.
(c) In a county having a population of 300,000
or more, according;to the last preceding federal
census, a holder of a mixed beverage late hours
permit may also sell and offer for sale mixed
beverages between midnight and 2 a. m. on any day.
(d) In a cou:~tyhaving a population of less
than 300,000, a&ording to the last preceding
federal census, I%e extended hours prescribed in
Subsection (c) o:rthis section are effective for
the sale of mixeC;beverages and the offer to sell
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Honorable Charles D. lioustm - Page 2 (JM-577)
them by a holder of a mixed beverages late hours
permit:
(1) --
in tt.e unincorporated areas of the
county if the extended hours are adopted by an
order of the t&missioners court; and
(2) in an incorporated city or town if the
extended hour!; are adopted by an ordinance of
the governing body of the city or town.
(e) A violat::cm of a city ordinance or order
of a commissior.ers court adopted pursuant to
Subsection (d) o:E this section is a violation of
this code. (Emphasis added).
Alto. Bev. Code §105.03; gee also id. 5105.05 (hours of sale for
beer).
Because the commissioners court in Austin County is considering
adopting only part of the late.hours prescribed in subsection (c),
your question is, in essence, whether section 105.03(d)(l) gives a
county with a population oi! less than 300,000 only one alternative to
the hours set out in subsection (b) or whether such a county may adopt
any late hours it chooses as long as those hours are within the late
hours.prescribed in section 105.03(c).
A commissioners court can exercise only those powers specifically
conferred on it by the constitution or statutes. Canales v. Laughlin,
214 S.W.2d 451. 453 (Tex. 1948). Therefore, we must examine the
language of section 105.03 carefully to determine what authority the
legislature intended to grant counties. Section 105.03 is a re-
codification of the following language:
(a) No persor,, except a person selling alco-
holic beverages under the authority of a Mixed
Beverages Permit, 'maysell or deliver any liquor:
(1) Between 5:OO o'clock p.m. of any day and
IO:00 o'clock a.m. of the following day of any day
except Sunday, pl.ovided,however, that nothing in
this Section shall prevent a wholesaler from
making sales and deliveries to retailers between
the hours of 7:00 o'clock a.m. and 9:00 o'clock
P.W.. Provided fu~rther, that any person holding
more than one Package Store Permit shall be
_ privileged to transfer alcoholic beverages between
any of his licensed premises in the same county
under such rules and regulations as may be
prescribed by the Commission, at any time between
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Honorable Charles D. Houston - Page 3 (JM-577)
the hours of 7:00 o'clock a.m. and 9:00 o'clock
p.IIl.on any day when the sale of such alcoholic
beverage is legal, provided that he be the holder
of a Local Cartage Permit.
(2) On Christnas Day.
(3) On Sundays.
(b) No person in a county of 300,000 or more
population, acccrding to the last preceding
federal census, 'nay sell or offer for sale any
mixed beverage on Sunday at any time between the
hours of 2 a.m. and 12 noon or on any day other
than Sunday at any time between the hours of 2
a.m. and 7 a.m.
(c) No person ,ina county not having a popula-
tion of 300,000 c#r more. according to the last
preceding federal census, may sell or offer for
sale any mixed beverage on Sunday at any time
between the hours of 1 a.m. and 12 noon or on any
day other than Sunday at any time between the
hours of 12 midnig!atand 7 a.m.
(d) Regardless of the provisions of Sub-
sections (a) and-(b) of this Section, the Com-
missioners Court- of any county under 300,000
Population, accc;ding to the last preceding
federal census, ni~y by order adopt for the unin-
corporated areas-of that county the hours pre-
scribed above for-counties having a population of
300,000 or more, -according to the last preceding
federal census, d;ring which the sale or offering
for sale of mixed-beverages is made unlawful; and
the governing bozy of any incorporated city or
town in any county under 300,000 population,
according to the last preceding federal census,
nay by ordinance adopt the hours prescribed above
for counties having a population of 300,000 or
more, according to the last preceding fedetal
census, during which the sale or offering for sale
of mixed beverages is made unlawful; violation of
a Commissioners :ourt order or a city ordinance
made under this subsection is punishable as a
violation of this Act.
(e) No person may sell or offer for sale any
mixed beverage on Sunday between the hours of
1 a.m. and 2 a.m., or on any other day between the
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Honorable Charles D. Houston - Page 4 (m-577)
hours of 12 midnight and 2 a.m. unless he holds a
Mixed Beverage Late Hours Permit.
(f) Notwithstanding any other provision of the
Texas Liquor Comrol Act, except as to the holder
of a storage permit, airline beverage permit, or
in accordance wtth Sections 21 and 21-l/8 of
Article I, no permn shall sell, offer for sale or
store for the purpose of sale in Texas, any liquor
on which the State and federal tax has not been
paid, provided, mwever, that the holder of any
permit authorized to transport liquor out of the
State may apply 1.0the Commission for a refund of
the excise tax 01 any liquor on which the State
tax has been paid upon proper proof that the
liquor was sold or disposed of outside the
boundaries of ths: State of Texas. (Emphasis
added).
Acts 1971, 62nd Leg., ch. 65, 525, at 695, repealed by Acts 1977, 65th
Leg., ch. 194, at 391.
The plain meaning of the language used in both versions of the
statute is that smaller cnmties have only one alternative to the
hours set out in section 105.03(b). Language in statutes must be
construed as written. We may not look for extraneous reasons for
reading into a law an intention not expressed. Government Personnel
Mutual Life Insurance Co. v. Wear, 251 S.W.2d 525 (Tex. 1952). It
would have been an easy m;%ter for the legislature to provide that
smaller counties could adopt late hours that do not extend beyond the
hours prescribed for largc!r counties. See, e.g., Alto. Bev. Code
9109.32 (allowing cities tclprescribe hours for the sale of beer as
long as it does not pen&: them during hours when sale of beer is
prohibited by state law). Instead, the legislature simply said that
small counties may adopt the hours prescribed for large counties.
Because we must construe thl!statute according to the plain meaning of
the words used, we conclude that Austin County may not adopt an order
permitting the sale of mixed beverages between midnight and 2 a.m.
only on certain days.
Our construction of section 105.03 is supported by section 105.06
of the Alcoholic Beverage Code, which provides:
(a) In this sl:c:tion:
(1) 'Exta!rtded
hours area' means an area:
(A) located in a county having a
popu:.ation of more than 300,000,
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,
Honorable Charles D. Houston - Page 5 (JM-577)
acco:rding to the last preceding
fede:ralcensus; or
(B) located in a county having a
population of not more than 300,000,
acco:rding to the last preceding
fede:ralcensus, if the area has been
made subject to the extended hours of
sale provided in Section 105.03 or
105.05 of this code.
(2) 'Standard hours area' means an area
which is not an extended hours area.
(b) In a standard hours area, a person commits
an offense if he consumes or possesses with intent
to consume an alcoholic beverage in a public place
at any time on Sunday between 1:15 a.m. and 12
noon or on any other day between 12:15 a.m. and 7
a.m.
(c) In an extended hours area, a person corn-
mits an offense if he consumes or possesses with
intent to consume an alcoholic beverage in a
public place at any time on Sunday between 2:15
a.m. and 12 noon and on any other day between 2:15
a.m. and 7 a.m.
(d) Proof tha,t an alcoholic beverage was
possessed with ir.tent to consume in violation of
this section requires evidence that the person
consumed an alccholic beverage on that day in
violation of this section.
(e) An offense under this section is a mis-
demeanor punishable by a fine of not more than
$50.
Alco. Bev. Code 5105.06. Section 105.03 creates an offense, the
elements of which vary according to whether the prohibited act occurs
in a standard hours area or an extended hours area. Section 105.03
does not allow for the poss~tbilitythat a county might have "partially
extended" hours, thereby indicating that section 105.03 of the code
gives counties only two opt,tons: standard hours or extended hours.
We do note that it has been held that a home-rule city may
prohibit the sale of mixed beverages during the hours when state law
permits such sale. Hewlett v. Texas Alcoholic Beverage Commission,
492 S.W.2d 686 (Tex. Civ. iG)p.- Waco 1973, writ ref'd n.r.e.). But
see Royer v. Ritter, 531 S.W.2d 448 (Tex. Civ. App. - Beaumont 1975.
-
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,
Honorable Charles D. Houston - Page 6 ,(JM-577)
writ ref'd n.r.e.) (ho1dir.gcontrary to Hewlett). Even if Hewlett
rather than Royer is a correct statement of the law, it does not
affect our interpretation of section 105.03. The reasoning in Hewlett
is that home-rule cities h,ave the power to pass any ordinance not in
conflict with state law and that an ordinance more restrictive than
state law is not in conflict with state law. See Royer, 531 S.W.2d
448 (holding that more rest,rictivehours do conflict with state law).
Counties, in contrast to home-rule cities, have only those powers
specifically granted to them. Thus, the issue here is whether the
legislature specifically ,granted counties with a population of less
than 300,000 the authority to adopt "partially extended" hours, not
whether the adoption by a county of "partially extended" hours would
conflict with state law.
Therefore, we conc1ui.e that section 105.03 of the Alcoholic
Beverage Code does not permit the commissioners court of a county
having a population of lese than 300,000 to adopt an order permitting
the sale of mixed beverages in unincorporated areas of the county
between midnight and 2:00 a.m. on some mornings but not on others.
SUMMARY
Section 105.33 of the Alcoholic Beverage Code
does not permit the commissioners court of a
county having a psq)ulationof less than 300,000 to
adopt an order permitting the sale of mixed
beverages in unincorporated areas of the county
between midnight and 2:00 a.m. on some mornings
but not on others.
J
Very truly yours
4
JIM MATTOX
Attorney General of Texas
JACK HIGHT0WF.R
First Assistant Attorney General
MART KELLER
Executive Assistant Attorney7General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2583