            TxxEA-rmmzmz~                 GENERAL

                          OFTEXAS




Hon. W. D. Bradfield, Chairman,     Opinion No. O-1768
Texas Liquor Control Board,         He: Authority of Texas Liquor Control
Southern Methodist University            Board to promulgate rule or regula-
Dallas, Texas                            tion that permits to sell intoxicat-
                                         ing liquors will not be issued to
Dear Sir:                                establishments "along the highways."

          We have for acknowledgment your letter of December 13, 1939,
wherein you request the opinion of this department upon the question
whether the Texas Liquor Control Board may promulgate a rule or regula-
tion that permits to sell beer, beer and wine, and distilled liquors
will not be issued, and those issued will not be renewed, for the opera-
tion of such establishments "along the highways."

          Practical difficulties confront us at the outset in comprehend-
ing the scope of your question. The sense in which you use the word
“highways" is not apparent. If intended to refer only to State and Fed-
eral designated highways, will the rule comprehend only those portions
thereof lying outside of incorporated cities or towns? If intended to
apply only to State and Federal designated highways, and not to streets
and roads or public ways generally, then, bearing in mind the fact that
the rules of the Board must be reasonable and uniform in their operation,
rather than arbitrary and discriminatory, what reasons exist for refusing
permits along the State and Federal designated highways that do not apply
with equal force to the refusal of permits on streets and public roads
generally? What is meant by "along" the highways? Does the Board in-
tend to establish a zone of territory abutting and extending back from
the highways, in which territory permits to operate will not be granted?

         .These questions suggested by your inquiry serve to indicate
the broad scope of the power which the Board asks if it may exercise.

           Administrative boards may exercise only such authority as is
 conferred upon them by law in clear and unmistakable terms. A power
 will not be deemed given by implication or extended by inference. Com-
 mercial Standard Insurance Co. Y. Board of Insurance Com'rs., 34 S. W.
.(2d) 343; McDonald Y. American Fruit Growers Ass'n., 126 S. W. (2d) 83;
 Opinion No. o-1146, rendered by this department to Hon. Bert Ford, Ad-
 ministrator, Texas Liquor Control Board, under date of August 4, 1939.

          The Legislature cannot grant to an administrative agency the
power to make a law, though it may confer authority upon such an agency
to fill out the details by which the administration of a complete law
Hon. W. D. Bradfield, page 2 (O-l'@)



enacted by the Legislature is effected, in accordauce with standards
or rules of conduct prescribed by the Legislature. Schechter Poultry
Corpn. Y. U. S., 295 U. S. 495, 79 L. Ed. 1570, and authorities therein
cited.

          The scope of the rule-making power conferred upon the Texas
Liquor Control Board is to be measured by the foregoing rules. An ex-
haustive analysis of the provisions of the Act or an extended citation
of and quotation From the numerous authorities upon this subject, would
serve no useful purpose. It suffices to say that, upon a careful exami-
nation of the Act in the light of the rules stated, we find nothing which
we construe as a grant to the Board by the Legislature of the power to
exercise the broad authority necessary to support the validity of the
proposed rule or regulation. It follows that the Board is without au-
thority to deny or cancel a permit on the sole ground that the establish-
ment to which it is iasued Will be operated "along the highway."

                                                Yours very truly

                                           A!ITOREEYGEkERALOFTEXAS


                                           By   /s/ R. W. Fairchild
                                                    R. W. Fairchild
                                                          Assistant
RWF:pbp:lm

         APPROVED DEC 22, 1939

          /s/ Gerald C. Mann

         ATl?OPXEYGENERAL OFTEXAS


                                                   TBIS OPINION
                                                  CONSIDERED AED
                                                   APPROVED IN
                                                     LIMPIED
                                                    COIl-FFaENCE
