                        Jam&y   13. 1987




Honorable Al Luna                     opinion go. Jh-619
Chairman
Committee on Science & Technology     Re: Whether a municipality may
Texas Eouse of Representatives        adopt an ordinance prohibiting
P. 0. Box 2910                        the consumption of alcoholic
Austin, Texas   70769                 beverages by persons operating
                                      motor vehicles

Dear Representative Luua:

     You ask whether a home rule city may adopt an ordinance pro-
hibiting the consumption of alcoholic beverages~by parsons operating
motor vehicles. Specifically, you ask whether such an ordinance would
be preempted by the Texas Alcoholic Beverage Code, by The Uniform Act
Regulating Traffic on Highways, article 6701d. V.T.C.S., or by any
other Texas law.     .

     A municiual ordinance may not conflict with state legislation.
City of Brookside Village v. Cbmeau, 633 S.W.2d 790, 796 (Tex. 1982).
cert. denied, 459 U.S. 1087 (1982). A city is preempted from regula-
ting in a field if the city's regulation is expressly prohibited, if
the legislature intended state law to exclusively occupy that field,
or if the city regulation conflicts with state law even if state law
is not intended to occupy that field. See generally Attorney General
Opinions JM-226 (1984); H-1071 (1977). The state's entry into a field
of legislation does not automatically preempt that field from
municipal regulation. City of Brookside Village v. Comeau. 633 S.W.2d
at 796. Additionally, because a home rule city's powers derive
directly from article XI, section 5. of the Texas Constitution, limits
on those powers must appear with unmistakable clarity. See Tex.
Const. art. XI, 45; Lower Colorado River Authority v. CityTf       San
Marcos, 523 S.W.2d 641, 643 (Tex. 1975); City of Sweetwater v. Geron.
380 S.W.2d 550, 552 (Tex. 1964). Whether the Alcoholic Beverage Code
preempts the proposed ordinance must be considered in light of these
general rules.

     Texas case law indicates that the Alcoholic Beverage Code does
not automatically preempt all municipal ordinances which regulate
alcoholic beverages. For exxple, in Pitre v. Baker, 111 S.W.2d 359
(Tex. Civ. App. - Beaumont 1937, writ dism'd), the court held that
nothing in the Liquor Control Act (now recodified as the Alcoholic
Beverage Code) took from a home rule city the power to restrict areas
in which beer and liquor could be sold. A number of courts have


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followed Pitre. See, e.g., Young, Wilkinson 6 Roberts v. City of
Abilene, 704 S.W.2d 380, 383 (Tex. App. - Eastland 1985, writ ref'd
n.r.e.) (and cases cited therein). In contrast, in Royer v. Ritter,
531 S.W.2d 448 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.), a
divided court struck down a city ordinance which prohibited package
stores from operating on certain holidays and which required that
package stores close at a certain hour. The opinion of one justice in
the case requires an affirmative grant of power to regulate alcoholic
beverages. A concurring opinion and a dissenting opinion present
different views. Because the three justice panel in Royer v. Ritter
was divided, however, the case does not provide a cohesive rationale.
Moreover, as indicated above, the Texas Supreme Court consistently
holds that it is necessary to look to the constitution and legislation
not for grants of power to home rule cities but only for limits on
their powers. See, e.g., Lower Colorado River Authority v. City of
San Marcos, supra; Forwood v. City of Taylor, 214 S.W.2d 282 (Tex.
1948); see also Le Gois v. State, 190 S.W. 724 (Tex. Grim. App. 1916).
Accordingly. preemption of the proposed ordinance depends upon the
scope of the fields regulated under various provisions of the code.

     Section 1.06 of the Alcoholic Beverage Code provides:

            Unless 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 this code. (Emphasis added).

The language of this section is clear. In Attorney General Opinion
JM-112 (1983). this office determined that section 1.06 prohibits a
city or county  from enacting an ordinance banning the possession of
open containers of alcoholic beverages in motor vehicles. Never-
theless, the city of Houston submitted a brief in response to your
request which recognizes the preemptive effect of section 1.06 but
which alleges that the ordinance in question does not constitute
regulation in the areas covered by section 1.06.

     The areas in section 1.06 of "possession" and "transportation"
are of particular importance to the instant case. An ordinance
prohibiting the consumption of alcoholic beverages while operating a
motor vehicle necessarily regulates possession to some degree because
to consume an alcoholic beverage, one must possess the beverage. See
Alto. Bev. Code $105.06 (consumption 05 possession is an offense un=
certain circumstances); see also Attorney General Opinion JM-112.
Similarly, because the proposed ordinance addresses consumption while
operating a motor vehicle, it would also constitute a regulation of
the transportation of alcoholic beverages.

     It has been suggested, however, that the proposed ordinance
regulates only the act of consuming alcohol while operating a motor
vehicle. not the act of possessing an alcoholic beverage.      This




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     Honorable Al Luna - Page 3   (JM-619)




     reasoning may be described most charitably as disingenuous.         It
     ignores the fact that to consume au alcoholic beverage, one must
     possess the beverage. Under a criminal law analysis, possession could
     conceivably be deemed a lesser included offense of consumption. Under
     Texas law, consumption alone is less culpable than possession and may
     be merely evidence of possession or of driving while intoxicated. See
     Parr v. State, 575 S.W.2d 522, 526 (Tex. Crlm. App. 1978) (consumpt=
     of intoxicating liquor not a crime). Moreover, viewing consumption as
     a separate criminal offense from possession does not separate
     consumption as a separate field of regulation under a preemption law
     analysis of section 1.06 of the Alcoholic Beverage Code or of the
     "driving while intoxicated" statute, article 67011-l. V.T.C.S.

          Thus, the case at hand is not like Banknote Club v. City of
     Dallas, 608 S.W.2d 716 (Tex. Civ. App. - Dallas 1980, writ ref'd
     n.r.e.1. In Banknote Club, the court held that the Alcoholic Beverage
     Code's permit provisions preempt only the regulation of establishments
     with regard to the sale of alcoholic beverages. Id. The permit
     provisions do not p=pt       ordinances and fees relating to other
     occupations or activities in which the permittee might engage on the
     same premises. Id. In contrast, the proposed ordinance regulates in
     a field which isnot separate from the field regulated by section 1.06
     of the code. It operates in the same field, but with more stringent
     proscriptions.

          At one the    in Texas' history, municipal regulation of milk
     elicited almost as much concern as the regulation of alcoholic
     beverages raises today; the legal history of the milk struggle is
     instructive. In City of Weslaco v. Melton. 308 S.W.2d 18, 21 (Tex.
     1957). the Texas Supreme Court considered whether a state statute
     which fixed grades of milk preempted a municipal ordinance which
     prohibited the sale of raw milk. The court upheld the ordinance
     because it did not attempt to alter the grades of milk set by the
     state; it merely prohibited the sale of one grade. 308 S.W.2d et
     19-20. This case stands for the proposition that more stringent
     municipal regulation may, in some instances, constitute a seoarate
     field of regulation. In-Jere Dairy, Inc. v. dity of Mt. Pleasant, 417
     S.W.2d 872 (Tex. Civ. App. - Texarkana 1967. writ ref'd n.r.e.).
     however, the court addressed a much closer case. The Jere Dairy case
     involved en ordinance requiring grade A milk deliveries three times
     per week. The city acknowledged that a state statute and regulations
     preempted the field of grading and labeling but asserted that
     frequency of delivery constituted a separate field of regulation. 417
     S.W.2d at 873. The court noted that the city's delivery regulation
     indirectly attempted to add a quality of freshness to the state
     specifications for Grade A milk distributed in the city. 417 S.W.2d
     at 874. The court struck down the more stringent municipal ordinance
     because it constituted "an entry into the field occupied exclusively
     by the state statutes and regulations" and therefore violated article
     XI. section 5. of the Texas Constitution. Id. The Texas Supreme



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Eonorable Al Luna - Page 4    (JM-619)




Court recently cited the'Jere Daiq case with approval. See City of
Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).

     The instant case is analogous to the Jere Dairy case.          As
indicated, Houston's brief admits the preemptive effect of section
1.06 but asserts that consumption constitutes a separate field of
regulation. The proposed ordinance attempts to effect the laudable
goal of preventing accidents caused by the consumption of alcoholic
beverages by operators of motor vehicles by prohibiting the consump-
tion of 9     amount of alcoholic beverage. But in so doing, the
ordinance enters a field regulated exclusively by section 1.06 of the
Alcoholic Beverage Code.    If this more stringent goal is to be
effected, it must be effected through amendments to the state
statutes. In light of this response to your question regarding the
preemptive effect of the Alcoholic Beverage Code, it is unnecessary to
address whether other Texas laws preempt the ordinance in question.
See genarally V.T.C.S. art. 67011-l (prohibiting driving while
intoxicated); cf. Knott v. State, 648 S.W.2d 20 (Tex. App. - Dallas
1983, no writ)(munlcipal ordinance cannot proscribe conduct which is
proscribed by the state's penal provisions); Parr v. State, 575 S.W.2d
at 526 (act of consuming intoxicating liquor not proscribed).

                               SUMMARY

                Section 1.06 of the Texas Alcoholic Beverage
           Code preempts an ordinance enacted by a home rule
           city which prohibits the consumption of alcoholic
           beverages by persons operating motor vehicles.




                                         Jgy&%

                                           Attorney General of Texas

JACKHIGETOWER
First Assistant Attorney General

WARYKELLER
Executive Assistant   Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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