                                 The Attorney             General         of Texas
                                                 December 30. 1983
JIh4 MAl-YOX
Attorney General


Supreme CouH Building          Honorable Mihe Westergren                          opinion    No. JM-112
P. 0. Box 1254S                Nnecer County Attorney
Auslln, TX. 78711.254S         Room 206, Nueceo County Courthouae                 Re: Authority    of a county or
51214752501
Tel41 SlWS74~1547
                               Corpuo Chreti,  T+xar     78401                    city to promulgate    ordlnancea
Tale~oplw 512l475.0266                                                            banning   open   container8     of
                                                                                  alcoholic  beverage8    in motor
                                                                                  vehicles
714 J4ck4on. Suite 700
Mla4. TX. 75202-4506
2W7428B44                      Dear. Mr. Westergren:

                                     You have requeated     our opinion ae to whether a municipality         or e
4S24 Alberl4 Ave.. Sultq 160   county    may, ban the     possession       of   open containe.rs   of alcoholic
El Paso. TX. 7WO5.27W          beverages    in motor ,vehlclee     through    an ordinance  adopted by the city
Y@-                            council   or an order.adopted       by the commissionera     court.   We conclude
                               that the preemption      provisions     of the Texas Alcoholic      Beverage Code
1001 Texar. SuIl4 700          preclude   such an order or ordinance.
Houslon. TX. 77002G3111
715l22HSB5                           Section   1.06 of the code provides         in full    aa follow:

1)08 Bradway. Sulle 312                        Unless otherwise         specifically     provided   by the
Lubbock. TX. 79401-3479                    terma     of    this     code,      the   manufacture,     sale,
aw-747.5238                                distribution,        transportation.       and possession      of
                                           alcoholic     beverages     shall     be governed exclusively
4309 N. Tenth. Sultr B
                                           by the provisions        of this code.
McAllen. TX. 7S5ol.lBS5
512mS24547                     We believe   that this   preemption  provision     ie very clear             and simply
                               precludes  a city or county from enacting      e local ordinance            banning the
                               possession  of alcoholic   beverages in~automobilee.
200 Maln PIu4. Bull4 400
San Antonlo, TX. 782052797
51212254191                          .In your brief you assert   that a city would have euch authority
                               under their general   grant of power to paw ordinance8      for the public
                               health and welfare subject   to the constitutional proviaion    that
An Equal Opponunltyl
Alflrm4llv4 Action Employor
                                           [Nlo charter   or any ordiuancee  paaaed under maid
                                           charter  ahall  contain any provieion   inconaiatent
                                           with the Constitution    of the State,    or of the
                                           general  laws enacted by the Legislature     of thin
                                           State;

                               Tex. Const. art. XI, IS.   See alao V.T.C.S.            art. 1165. With regard to
                               counties  you propose  that a commissioners              court order banning open



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Honorable   Mike Weatergren      - Page 2     (JM-112)




containers   would.:be  authorized      by provisions     of the newly         codified
“county road and bridge act,” Acts 1983, 68th Lag., ch. 288.                   at 1431.
to be codified    aa article    6702-l.    aaction   2.301(a)(l) vhich         provides
as follwa:

            The commiaaionera court of any county may regulete
            and restrict  traffic on county roads and on other
            county-owned land under its jurisdiction.

This section     also requires a public    hearing before     the adoption   of
traffic    regulations   and specifically     authoritea   the conmiealonera
court to adopt speed limita.        load limits.    and a. eyatem of traffic
controlled    devices.

       In the case of Royer v. Rltter.           531 S.W.Zd 440. 449 (Tex. Civ.
APP. - Beaumont 1975. writ ref’d n.r.e.).             the court held that a local
ordinance    passed by a city and vhich regulated             the hours of sale for
liquor   package stores      conflicted    with the predecessor         Liquor Control
Act.    The local ordinance prohibited         the opening of a package store on
days and at times not prohibited           by state    law.     The court recognized
five~“diatinct”     areaa of municipal      regulatory     authority     over alcoholic
beverages:      (1) the adeeaemeat for local ,feea,            (2) prohibiting      sales
in residential       aectione.      (3) prohibiting      sales    near churches        and
schoola,    (4) regulating      the aale of beer within the city limits,
adopting     hours   for    the sale     of mixed beveragee.             See Alcoho:::
Beverage Code 8111.38;         105.03; 109.31 - .33.        The courtheld       that the
ordinance     in question     wae unauthorized      by the &ate       li.quor laws and
was inconsistent      therewith.      The court stated the following:

                 The Legislature.     by granting     to the cities
             paver   of control     in five   instances    above set
             forth, has . . . denied this power in any instance
             not specified.     There is no authority    in the Texas
             Liquor Control Act for the Ordinance under review.

                 Furthermore,   this  Ordinance    is  inconsistent
             with the Act.     It is true that the Legislature
             stated   when package stores    are not to be open,
             rather than the converse.     But thcis     merely one
             way of stating   when they m       be open.   When the
             Beaumont Ordinance adds to the times they must he
             closed,    the Ordinance  ie Inconsistent     with the
             statute.

                 .   .   .   .

                If the Legislature  had intended   for             the City
             Council to have the authority   to extend             the time
             of closing or opening of package atoren                from the




                                       p. 471
Honorable   Mike Westergren       - Page 3     (JM-112)




            state    provision,   it   could have said so.        Eaving
            failed    to do so, we believe      they [the Legialatura]
            intended     the proviaion    for closing    in the act to
            be     ltateuide     and    exclusive.       (Rmphaaia     in
            original).

Roger   v. Ritter. m        at 449-50.            Baaed on       the Royar case.    we
conclude that the lcgialatura      has not        authorized      cities and countiea
to adopt an open container    ordinance.

                                     SUUUARY

                A city or county is prohibited      from adopting a
            local     ordinance banning   the poaaesaion     of open
            containers       of alcoholic    beverages    in    motor
            vehicles.                          I




                                                  Attorney     General   of Texas

TOMGREEN
First Assistant    Attorney   General

DAVID R. RICBARDS
Executive Aasiatant     AttONey      General

Prepared    by David Brooks
Assistant    Attorney General

APPROVED
       :
OPINIONCOMMITTEE

Rick Gilpin,    Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Floellinger
Nancy Sutton




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