Honorable William D. Pratt    Opinion No. C-754
County Attorney
Palo Pinto County             Re: Validity of Ordinance
Mineral Wells, Texas              of the City of Mineral
                                  Wells which makes it
                                  unlawful to sell alco-
                                  holic beverages on
                                  Sunday in the city
Dear Mr. Pratt:                   limits.
          You recently requested an bpinion of this of-
fice concerning the validity of the following ordinance
adopted by the City of Mineral Wells making it unlawful
to sell beer or any alcoholic beverage on Sunday In the
city limits of Mineral Wells, Texas.
           The pertinent parts of the ordinance are as
follows:
              “4. It shall be unlawful for any
           person to directly or indirectly sell,
           offer for sale, barter, offer to barter,
           exchange, or offer to exchange, give, or
           offer to give, deliver, or offer to de-
           liver, serve, or offer to serve, beer
           or any alcoholic beverage, by retail
           for consumptionon or off the premises,
           within the corporate limits of the City
           of Mineral Wells, in Palo Pinto County,
           Texas, between the hours of 1:00 A.M.
           of any Sunday and 7~00 A.M. of the fol-
           lowing Monday morning.
              “5. Any person violating any pro-
           vision of this Ordinance shall be guilty
           of a misdemeanor,and upon conviction
           shall be punished by a fine of not less
           than $25.00, and not more tha.n$200.00,
           and each day of such violation shall
           constitutea separate offense."
          The authority of cities to regulate the sale of
beer is found In Article 667-10 l/2, Vernon's Penal Code.
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Honorable Willlam D. Pratt, Page 2 (C-754)


The pertinent part of such statute Is as follows:
            "All Incorporated cities and towns
         are hereby authorized to regulate the
         sale of beer within the corporate llm-
         its of such cities and towns by charter
         amendment or ordinance,and may thereby
         prescribe the opening and closing hours
         for such sales; such cities and towns
         may also designate certain zones in the
         residential section or sections of said
         cities and towns where such regulations
         for opening and closing hours for the
         sale of beer sha,llbe observed or where
         such sales may be prohibited. All in-
         corporated cities and towns and all Com-
         missioners Courts when acting under au-
         thority of this section are hereby au-
         thorized In adopting charter amendments,
         ordinances, or orders to distinguishbe-
         tween retailers selling beer for consump-
         tion bn the premises where sold and those
         retailers, manufacturersor distributors
         selling not for consumptionon the prem-
         ises where sold, and to provide for
         separate and distinct regulations.Noth-
         ing herein shall authorize any incorporated
         city or town to extend by ordinance or
         charter the hours of sale as fixed by the
         state law."
          The foregoing statute gives cities the authority
to shorten the hours of sale of beer as fixed by State law.
The statute f,urthergives cities the authority to prohibit
the sale of beer in a particulararea.   Moore v. McCarver,
240 S.W.2d ~443 (Tex.Clv.App.1951).
            State law pr6hlblts the sale of beer on Sunday
at any time between the hours of 1:00 o'clock A. M. and
1:00 o’clock   P.M., and on any day except Sunday at any time
prior to 7:00 o'clock A.M. Article     667-10, V.P.C. The
punishment prescribed by State law for selling beer with-
in the prohibited hours Is a fine of not less than $100.00
and not more than $l,OOO.OO, or by Imprisonment in the
county jail for not more than one year, or by both such
fine and Imprisonment. Article 667-26, V.P.C.


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     Honorable William D. Pratt, Page 3 (c-754)


               A city ordinance that prescribesa different and
     lesser nunlshmentthan that fixed bJrthe State law for the
     same uniiwful act Is void. Ex part; Wataon;~225S.W.2d
     850 (Tex.CrIm.1949).

               The Court of Criminal Appeals, In Young v. State,
     267 S.W.2d 423 (Tex.Crlm.195&), declared a city ordinance
     of the City of McGregor, which was very similar to the
     ordinance before us, void because It attempted.toprovide
     a lesser punishmentthan provided by State law for selling
     beer on Sunday between the hours of 1:00 o'clock A.M. and
     1~00 o'clock P.M. and on Monday prior to 7~00 o'clock A.M.
     The Court recognized the right and authorityof the City
     to prohibit by ordinance the sale of beer on Sunday from
     1:00 o'clock P.M. to midnight on Sunday, but struck down
     the entire ordinancebecause it included hours on Sunday
     and Monday that were prohibited by State law with a greater
     penalty than provided in the ordinance.
               The Young case, supra, Is squarely itipoint with
     the question before us, and therefore the Mineral Wells
     Ordinance submitted to us is void for the reasons set forth
     in such case.
                               SUMMARY
                    A city ordinance that prescribesa
                 differentand lesser punishmentfor
                 selling beer during prohibitedhours
                 than that fixed by Article 667-10, V.
                 P.C., for the same unlawful act is void.
                                   Yours very truly,
                                   WAGGONER CARR
                                   Attorney General of Texas

                                   By:
                                         Assistant Attorney General
     DIiC/br
     APPROVED:
     OPINION COMMITTJ3E

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Honorable Wllllam D. Pratt, page 4 (C-754)


W. 0. Shultz, Chairman
tinny Zwiener
Charlee Swanner
Halcolm Qulak
Pat Bailey
APPROVEDFORTHEATTORNEY   GENERAL
By: T. B. Wright




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