Honorable Joe Kunsohik, Commissioner
Bureau.of Labor Statistics
Austin, Texas
Dear #r:                        Opinion No. O-3190
                                Re: Whether beer tavern in
                                     rural district is "mer-
                                     cantile establishment"
                                     within Art. 1571 or the
                                     Penal Code.
          This will be in reference to the request contained
in your letter of February 19, 1941, for the opinion of this
department upon the follow5.ngmatter:
          "Referenoe is made to Artlole 1569, as amended,
     Texas Penal Code, which provides, In part, that *no
     female shall be employed . .. .... in any roadside
     drink and/or rood vending establishmant for more than
     ni   h     in any one calendar day nor more than fltty-
     f'o: hzgz in any one calendar week.'
          "In oonneotion with your opinion No. O-1723, aatea
     December 1, 1939, and.with partioular referenoe to a
     beer tavern which Is located outside of the oity limits:
          Woes Article 1571 of the Penal Code, when it pro-
     vides that Articles 1569 and 1570 of the Penel Code
     shall not apply to 'mercantile establishments,V exclude
     from the provisions of Articles 1569 and 1570, supra,
     such establishments commonly known as 'beer taverns'
     whose main business is the sale of beer,,and, whloh
     beer taverns nt the same time engage in the sale of
     such additional commodities as chewing gum, cigars
     ana cigarettes, but which saia adaltional ootiodities
     ere Incidental to the main business of selling beer.
          "Pour opinion on this question will be appreciated, in
     order that we may determine what procedure, ir any, to take
     on a matter that is now pending before this Department."
            Articles 1569 and 1571 of the Fenal Code, as amended,
read:
            tArt. 1569.
            TCo female shall be employed:
             "1. In any factory, mine, mill, workshop, mechan-
        ical or mercantile establishment, hotel, restaurant,
non. doe iumson~~, page L

    rooming house, theater, moving p,iotureshow, barber
    shop, beauty shop. road side.drink and/Or food vend-
    ing establishment, telegraph, telephone or other oi-
    fioe, express or transportation company, or any State
    institution, or any other establishment, institution
    or enterprise where females are employed, for more
    than nine (9) hours in any one(l) oalendar de nor
    more ~thanfifty-four (54) hours in any one (17 oalen-
    dar week.
          "2 . In any laundry or cleaning and nresslng
     establishment for more than fifty-four (54) hours in
     one (1) calendar week; the hours of work to be SO ar-
     renged as to permit the employment of suoh female at
     any time so that she shall not work more than a max-
     lmun:,ofeleven (11) hob:rsduring the twenty-four (24)
     hour period of one (1) day. (Underscoring ours)
          “3. In any faotory engaged In the menufacturs oi
     cotton, woolen or worsted goods or articles of merchandise
     manufaotured out of cotton goods, for more than ten (10)
     hours In any one (1) calendar day nor more than sixty
     (60) hours in anyone calendar week."
          -Art. 1571. The two preoeding Articles shall not
     apply to stenographers and pharmaoists, nor to mercantile
     establishments or telegraph or telephone companies in
     rural distriots ana ih cities or towns or vf.llanes of
     less than three thoussuWlnhab1tants. as shown by the
     preceding Federal oensus, nor to superintendents, matrons,
     nurses and attendants employed by, in, and about such
     Orphans' Bomes as are charitable Institutions, not run
     far profit, and not operated by the State. In oases 0r
     extraordinary emergencies, such as great public oalamities
     or where it becomss neoessary~for the protection of'human
     life or property, longer hours may be worked." (Undersooring
     ours)
          Rote that certain classes of businesses are apeo-
iriea in Article 1569. Among these are mercantile establlah-
ments, restaurants, etc. In 1933 b amendment (Aots 1933,
l&-a Legislature, page 285, Ch. 114v the Legislature added
two other classes of business whloh we have undersoored; viz.,
beauty shops and road-side drink and/or food vending estab-
lishments. Article 1571 exempts certain classes of business-
es situated in rural districts and in cities, towns and vil-
lages of less than three thousand Inhabitants from the pro-
visions or Article 1569. Among these classes of businesses
so exempted are mercantile establishments and telephone and
telegraph companies.
          Commenting on these classes of businesses referred
to in Articles 1569 end 1571 our Court of Criminal Appeals
said in Glanges v. State (Ct. Cr. App. 1920) 220 S.X. 95:
          "Restaurants, from the terms of the statute,
     are in e separate class from mercantile estab-
     lishments, and ere not included in the clause
     in the statute which exempts from I.tsoperation
     mercantile establishments in towns in which the
     population is 3,000 or less. l! parte &own,
     21 S.D. 515:.114 N-7:.303."
          In Opinion No. O-1723 you were advised    that Artioles
1569 and 1570 apply to all sections of the State    whether rural
districts, cities, towns or villages, regardless    of the popula-
tion of such subdivision unless they come within    the exemption
contained in Artiole 1571.
          It is at once apparent that the Legislature has sing-
led out "road side drink and/or food vending establishments" as
something different and apart from those businesses falling
within the ordinary definition of a Wercantile est@.ishment.*
Only the latter is exempted.
          Consequently, we are not prepared to say that a beer
tavern locotea outside of the city limits comes within the ex-
emption for "mercantile establishments*'in Article 1571.
          You do .not describe the b%slness in question other
than as a tavern engaged mainly in the sale of beer and es
an incident to this business selling  such ccanuoditiesas ehew-
ing gum, tigers and cigarettes, i"lhile'we do not undertake
to advise what business might fall within the term "road side
drink and/or food vending establishment" you are advlsea that
if the business inqur&&ion engages mainly in the Sale of
beer, and is looated along 8 public road it falls squarely
within the olass of businesses enumerated in Article 1569
and is not exempted by Artiole 1571.
                                     ',Verytruly yours
                                  ATTORREIGERERAL OFTEXAS
                                  By /s/ James D. Smullen
                                         James D. Smullen
                                                Assistant
JBS:js:jrb
             APPROVRD MAR. 10, 1941
             /s/ Gerald C. Mann
             A'TORNEI GEN?ZRALOF TEXAS
                                         APPROVED OPIXION COAMITTEE
                                             W BIYB,Chairman
