                                           GREG       ABBOTT




                                              August 14,2007


The Honorable R. Lowell Thompson                         Opinion No. GA-056 1
Navarro County Criminal District Attorney
Navarro County Courthouse                                Re: Authority of the Texas Alcoholic Beverage
300 West Third Avenue, Suite 203                         Commission or the City of Corsicana to
Corsicana, Texas 75 110                                  regulate a business establishment that permits
                                                         the possession and consumption of alcoholic
                                                         beverages on a "BYOB" basis (RQ-0568-GA)

Dear Mr. Thompson:

        You inquire about the authority of the Texas Alcoholic Beverage Commission (the "TABC")
or the City of Corsicana (the "City") to regulate a business establishment that permits the possession
and consumption of alcoholic beverages on a "BYOB" ("bring your own bottle") basis.'

         You indicate that prior to May 15, 2004, the City was a "dry area." See Thompson Brief,
supra note 1, at 1. On that date, the electorate "voted to legalize the sale of beer and wine for off-
premises consumption and to legalize the sale of mixed beverages in restaurants by food and
beverage certificate holders only." Request Letter, supra note 1, at 1. You state that recently a
business entity announced its intention to operate as a pool hall "in the downtown area of the City,"
and that, while the proprietors of the pool hall do not intend to sell alcoholic beverages to their
customers, they do intend to operate on a BYOB basis, "whereby customers can bring onto the
premises, and remove from the premises, alcoholic beverages for their own consumption, and for
that of any members of their party, while they are on the premises." Id. You ask whether the above-
referenced pool hall may operate on a BYOB basis without obtaining a license or permit from the
TABC. See id. at 2. In the alternative, you ask whether the City itself may regulate such an
establishment. See id.

       The TABC is "an agency of the state." TEX.ALCO. BEV.CODEANN. 5 5.01(a) (Vernon
2007). It is authorized to "exercise all powers, duties, and functions conferred by [the Alcoholic
Beverage Code], and all powers incidental, necessary, or convenient to the administration of [the]
code." Id. fj 5.31. The TABC is empowered to issue permits and licenses for various kinds of


         'Letter from Honorable R. Lowell Thompson, Navarro County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Feb. 7, 2007) (on file with the Opinion Committee, also available at
http:llwww.oag.state.tx.us) [hereinafter Request Letter], and attached brief [hereinafter Thompson Brief].
The Honorable R. Lowell Thompson - Page 2                        (GA-0561)



activity relating to alcoholic beverages. See id. fj 11.O1.2 See, e.g., id. chs. 12 (brewer's permit), 18
(wine bottler's permit), 19 (wholesaler's permit), 22 (package store permit), 28 (mixed beverage
permit), 38 (industrial permit), 62 (manufacturer's license), 64 (general distributor's license), 67
(importer's license), 74 (brewpub license).

        As we have indicated, the TABC, as a state agency, has only those powers that are
specifically granted by the Legislature and those that may necessarily be implied therefrom. See Tex.
Workers' Comp. Comm 'n v. Patient Advocates of Tex., 136 S.W.3d 643,652 (Tex. 2004). As you
acknowledge, the Alcoholic Beverage Code (the "Code") does not refer to BYOB establishments.
See Request Letter, supra note 1, at 2. Because the Code contains no reference to the TABC's
regulation of BYOB establishments, we conclude that the referenced pool hall may operate on a
BYOB basis without obtaining a license or permit from the TABC.3

        Your brief and that of the City4suggest that the City's conversion in 2004 from a "dry" to
a partially "wet" area has some effect on your inquiry. Thompson Brief, supra note 1, at 1-2; City
Brief, supra note 4, at 1-2. "Dry area" refers only to an area where the sale of alcoholic beverages
is prohibited. See TEX. ALCO.BEV.CODEANN.fj 25 1.71(a) (Vernon 2007) ("An area is a 'dry area'
as to an alcoholic beverage of a particular type and alcohol content if the sale of that beverage is
unlawful in the area.").5 Personal possession and consumption of alcoholic beverages are not
prohibited in a "dry area." See id. fj 101.31(a) (prohibiting possession only if with intent to sell).
Thus, so long as an individual complies with certain other provisions of Texas law, such as those
relating to the legal drinking age and public intoxication, that person may possess and consume
alcoholic beverages regardless of a jurisdiction's wet or dry status.

       You also suggest that a business such as the pool hall in question might properly be
considered a "private club," or simply a "club," so as to be subject to TABC regulation under section
32.14 of the Code. See Thompson Brief, supra note 1, at 4; see also City Brief, supra note 4, at 3-4.
We understand you to argue that the pool hall is subject to regulation as such because it is otherwise
unregulated by the Code. See Thompson Brief, supra note 1, at 4-8. Chapter 32 of the Code


          'Section 11.01 of the Alcoholic Beverage Code, which requires a permit for various activities relating to
alcoholic beverages, has been declared unconstitutional to the extent that it restricts the right of Texas residents, who
were not otherwise statutorily prohibited from possessing alcoholic beverages, to order out-of-state wines to be shipped
directly to their homes for their personal consumption. See Dickerson v. Bailey, 336 F.3d 388, 409 (5th Cir. 2003).

         3Abrief from the TABC asserts that "there is no violation of alcoholic beverage laws presented by a commercial
establishment that allows patrons to possess and consume their own alcoholic beverages." Brief fkom Lou Bright,
General Counsel, Texas Alcoholic Beverage Commission, to Nancy S. Fuller, Chair, Opinion Committee, Office of the
Attorney General, at 2 (Apr. 4, 2007) (on file with the Opinion Committee) [hereinafter TABC Briefl.

         4Brief from Teny Jacobson, Jacobson, Beard & Edmondson, P.C., on behalf of the City, to Nancy S. Fuller,
Chair, Opinion Committee, Office of the Attorney General (Mar. 21, 2007) (on file with the Opinion Committee)
[hereinafter City Brief].

          5By contrast, an "area is a 'wet area' as to an alcoholic beverage of a particular type and alcoholic content if
the sale of that beverage is lawhl in the area." TEX.ALCO.BEV.CODEANN. 5 251.71(a) (Vernon 2007).
The Honorable R. Lowell Thompson - Page 3                       (GA-0561)



authorizes a private club to serve alcohol to members and guests for on-premises consumption only
when the club holds a private club registration permit. See TEX.ALCO.BEV.CODEANN.5 32.0 1
(Vernon 2007). In order to obtain a permit, a club must satisfy a variety of membership, operational,
governance, and management requirements. See id. 5 32.03. Unless the club holds a private club
registration permit, section 32.14 prohibits a person from, inter alia, possessing, or carrying onto the
premises an alcoholic beverage in any establishment "purporting to be a club," or "holding itself out
to the public or any person as a club or private club." Id. 5 32.14(a).

        Your focus on whether the pool hall falls within the definition of "private club" or "club" is
misplaced. A violation under section 32.14 occurs only if the pool hall is purporting to be a club or
is holding itself out to be a club or private club. Nothing in the facts you have presented indicate that
the pool hall holds itself out to the public as a club or private club.6 Absent facts to the contrary, we
conclude that the referenced pool hall may not be regulated by the TABC under chapter 32 of the
Code as a "club" or "private club."

        You also ask whether the City may regulate a BYOB pool hall by municipal ordinance. See
Request Letter, supra note 1, at 2. You specifically argue that the City may regulate the pool hall
pursuant to its special use permit ordinance. See Thompson Brief, supra note 1, at 8-9. Attorney
general opinions do not construe particular city ordinances. See Tex. Att'y Gen. Op. No. GA-02 17
(2004) at 4. The general rule regarding alcoholic beverages is, however, that the Code "shall
exclusively govern the regulation of alcoholic beverages in this state." TEX.ALCO.BEV.CODEANN.
5 109.57(b) (Vernon 2007). Moreover, "[u]nless otherwise specifically provided by the terms of this
code, the manufacture, sale, distribution, transportation, and possession of alcoholic beverages shall
be governed exclusively by the provisions" of the Code. Id. 5 1.06. The Code itself authorizes a
municipality, in certain instances, to regulate the sale of alcoholic beverages, but provides no other
authority in this area to a municipality. See, e.g,, id. 5 109.31 (authorizing home-rule cities to
prohibit the sale of liquor in residential areas), 5 109.32 (authorizing cities to impose more restrictive
hours on the sale of beer), 5 109.33 (authorizing cities to prohibit the sale of alcoholic beverages
within certain distances of schools, churches, and hospitals), 5 109.331 (authorizing cities to prohibit
the sale of alcoholic beverages within certain distances of day care and child care centers).
Municipal regulation not expressly authorized by the Code is therefore preempted. See id. 55 1.06,
109.57. Because the Code does not expressly authorize a municipality to regulate the possession of
alcoholic beverages on the premises of a BYOB pool hall, the City may not adopt an ordinance
attempting to do so.

       In one instance, however, the Code might be construed to authorize the City to regulate the
possession and consumption of alcoholic beverages in the vicinity of the referenced pool hall.
Section 109.35 of the Code is entitled "Orders for Prohibition on Consumption" and provides as
follows:



        6TheTABC brief likewise points out that "[wle do not know whether the establishment of which the requestor
complains will be one 'purporting to be a club or holding itself out to the public or any person as a club." TABC Brief,
supra note 3, at 2.
The Honorable R. Lowell Thompson - Page 4               (GA-056 1)



                        If the governing body of a municipality determines that the
               possession of an open container or the public consumption of
               alcoholic beverages in the central business district of the municipality
               is a risk to the health and safety of the citizens of the municipality, the
               governing body may petition for the adoption of an order by the
               [TABC] that prohibits the possession of an open container or the
               public consumption of alcoholic beverages in that central business
               district.

Id. 5 109.35(a). "Central business district" is defined as "a compact and contiguous geographical
area of a municipality in which at least 90 percent of the land is used or zoned for commercial
purposes and that is the area that has historically been the primary location in the municipality where
business has been transacted." Id. 5 109.35(d). The statute sets out the procedural requirements for
the submission of such a petition. See id. 5 109.35(b). Significantly, however, any order issued by
the TABC under section 109.35 "may not prohibit the possession of an open container or the
consumption of alcoholic beverages in motor vehicles, buildings not owned or controlled by
the municipality, residential structures, or licensed premises located in the area of prohibition." Id.
§ 109.35(c). Thus, while the City may not regulate the possession and consumption of alcoholic
beverages on the premises of the pool hall itself, it may presumably seek to regulate possession and
consumption within the immediate vicinity of the pool hall.

        We conclude that, under the Code, a pool hall may operate on a BYOB basis without aperrnit
or license from the TABC. Moreover, the City may not by municipal ordinance regulate the
possession or consumption of alcoholic beverages within a pool hall that operates on a BYOB basis.
The Honorable R. Lowell Thompson - Page 5        (GA-0561)



                                    S U M M A R Y

                     Under the terms of the Texas Alcoholic Beverage Code, a
              pool hall may operate on a BYOB ("bring your own bottle") basis
              without a permit or license from the Texas Alcoholic Beverage
              Commission. Moreover, the City of Corsicana may not by municipal
              ordinance regulate the possession or consumption of alcoholic
              beverages within a pool hall that operates on a BYOB basis.




                                                  e
                                          Attorney e ral of Texas


KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
