Honorable R. E. Swift                    Opinion No. ~-1418
County Attorney
Anderson County                          Re:     Does Article  13a, Section 1
Palestine,  Texas                                of the Charter of Palestine,
                                                 Texas, prohibit the sale.of
                                                 beer outside the area as
                                                 zoned by said Section of the
Dear Mr. Swift:                                  Charter?
     You have asked us for    an opinion       on the following   question:
               "Does Article 13a, Section 1 of the Char-
           ter of Palestine,  Texas prohibit the sale of
           beer outside the area as zoned by said Set-
           tion of the Charter?"
      In order for   us to answer this     question   you submitted    the fol-
lowing facts:
     The City of Palestine on April 7, 1962, by local option elec-
tion legalized  the sale of all alcoholic beverages for off-premise
consumption only.
      We have been furnished a certified         copy of the Charter of the
City of Palestine,  Article  13a, Section        1 of which provides as fol-
lows:
                                                      "
                "It shall be unlawful to.locate,     maintain,
           or conduct any place where spM?itous,        vinous
           or malt liquors or medicated bitters        capable
           of producing intox3cation       are sold at retail
           within the corporate limits of the City of
           Palestine, ~Texas, a8 they are now, or as they
           may hereafter    be established,    except on the
           following   streets,   to-wit:    Spring Street be-
 L
           tween Tennessee Avenue and Houston Stre~et;
           Main Street, between Tennessee Avenue and
           where It Intersects     with Avenue A; Oak Street,
           between Tennessee Avenue and where it inter-
           sects with Avenue A; Sycamore Street, between
           the International     and Great Northern Railroad
           and where it intersects       with Spring Street;
           Avenue A, and that portion of Church Street
           between its intersection       with Avenue A and
           Its intersection     with Lacy Street.".
Honorable   R. E. Swift,   page 2                Opinion No. WW-1418
                               i

       The City Charter of the City of Palestine Is a legislative
act of the legislature    of the State of Texas, and the section abcvs
quoted is an amendment adopted by the 31st Legislature      and approved
by the then Governor, T. M. Campbell, in 1910.      lhe certified  copy
furnished this office    by the City Secretary reveals that the above
section Is still   carried as a part of the Charter.
       Although Article 667-m+ V.P.C., as presently’codified,     grants
cities   the power to regulate the sale of ‘beer asdeflned’in     the
Texas Liquor Control Act” by charter or ordinance,     It does not af-
feet the charter provision at hand because the charter at hand does
not deal with’beer” ~1s such, nor does it deal with “any malt beve-
rage containing cne-half of one percent or more of alcohol by
volume nor more than four percent of alcohol by weight”,      (the lat-
ter being “beer” as defined In the Texas Liquor Control Act).       It
is, therefore,   necessary to consider whether beer Is included wlthn
the term “splritous,    vlnous or malt liquors or medicated bitters
capable of producing Intoxication”    as used In the.charter.    In
answering this question we must look not only to the charter itself
but to the various subsequent Texas Liquor Control Acts as well.
Stanford v. Butler     181 S.W.2d 269, 142 !bx 692, 153 ALR 1054; 82
CJS Sec. 360 (p. ti7).
      That beer Is. not Included within the terms splrltous      or vlnous
liquors or medicated bitters     capable of producing Intoxication      is
too apparent to merit discussion.       If the sale of b.eer outside the
designated area is prohibited      by the above charter provision It
must be by virtue of beer being Included within the term “malt
liquor”.    Undoubted1 7, at the time the charter provision was adopted
by the legislature,.    ‘beer” was included within the term “malt
liquors. ” Mater v. State, 21 S.W. 974 (Clv.App. 1893); Fl uetia v.
State, 159 S.W. lltlll    (T    Crim. 19131; Claunch v. State,-f?nTs
            Grim. 1917); T%? v. State, 260 S W 1043 (T             Grim. .
         l3ubank v. State, 2tIb 3 W 234 (Tex. Grim: 1926);   zt;tt   v.
State, w(Tex.                   czl.   1929).
       In this connection, however, it should be pointed out that
the above cases were decided prior to the passage of the first l’ex@
Liquor Control Act and did not refer to the charter provision at
hand. The primary question before us Is whether theaffect    of the
various Texas Liquor Control Acts cited below was to amend or. Par-
tlally   repeal the above quoted special charter.
     In 1933, the legislature   defined beer as “beer containing One-
half (&) of one per cent (1%) or more of alcohol by volume and not
more than three and two tenths percenturn (3.H) of alcohol by wei@
(Acts 43rd Legislature,   Regular Session, Chapter 116, Sec. l(d) pa@
288.)
Honorable R. E. Swift,    page 3                   .OpinionNo.   W-1418


      In 1935 the legislature    defined .beer as "any malt beverage
containing one-half (3) of one Per cent (1s or more of-alcohol
by volume and not more than four percentum 14s) of alcohol by
weight."    (Acts 44th Legislature,    Second Called Session, Chapter
467, Article II, Section l(c).)
      The 1935~Act doesnot.define     "malt liquor" but.lt does de-
fine "liquor!' as "any alcoholic   beverage containing alcohol In
excess.of   four per cent (4%) by weight . .~ ."    (Acts.44th Legis-
lature,   supra, Article I, Sectlon3a,    page 1796), and this deflnl-
tion of "liquor"   has been carried forward to the present Texas
Liquor Control Act.
       The first.leglslatlve    definition     of "malt liquor" in Texas
is found In the 1949 amendment to the Texas Liquor Control Act
where It is definer. as "a malt beverage containing more than four
percentum.(4$)      of alcohol by weight."       Acts 41st Legislature,
Regular Session, Chapter 543, Section 1 13), page 1013; presently
codified   as Article 666-3a(L3),      V.P.C.)
     Article II, Sec. 1 of the 1935 Texas Liquor Control Act,
(44th Legislature,    Second Called Session, Chapter 467, H. B. No.
77) provldes.ln    part:
               "Unless otherwise herein specifically       <"
           provided by the terms of this Act, the.manu-
           facture,    sale and distribution    of'beer, as ~.
           hereinafter     defined, shall be governed -ex-
           cluslvely    by the .provlslons   of Article
           of this Act, . . .'I (Rnphasls added)
     This provision has been d&ried forward virtually  unchanged
to the present Texas Liquor Control Act.  (Art. 667-2 V.P.C.)
      We must presume that the subsequent statutes were enacted by
the legislature with full knowledge of the existing   law including
the cha>,;-r provision at hand. Freels v. Walker,         Tex .
26 S.W.2d 627 (1 30); McBride v. Clayton,          TeX.         m
S.W.2d 125 (1942 3 . They must be construed In conjunction with
each other and should be construed so that they operate In harmony.
Freels v. Walker, supra; McBride v. Clayton, supra.
      In accordance with the above principle    and in order to give
effect to all the legislative   acts we hold that the effect of the
various legislative  acts subsequent to the charter provision at
hand was to eliminate "beer" as defined therein from the category
of "malt liquor".   This resulted,   In effect,  in an amendment of
the charter and it does not prohibit    the sale of "beer" (i.e.   any
malt beverage containing one-half    (3) of one per cent (1%) or
Honorable R. E. Swift,   Page 4                 Opinion No. WW-1418


more of alcohol b volume and not more than four      per cent   (4%) cf
alcohol by weight T outside the designated area.
                            SUMMARY
           Article 13a, Section 1 of the Charter of the
     City of Palestine has been amended by Art. 667-1(b)
     ViP.C. and does not prohibit  the sale of "beer" as
     defined In Article 667-1(b), outside the area des-
     cribed in the said charter provision.
                                   Very truly   yours,
                                   WILL WILSON
                                   Attorney General of Texas


                                   B
                                       Assistant
SRW:rk
                                                 0
APPROVED:
OPINIONCOMMITTEZ
W. V. Geppert, Chairman

Sonn iieeves
Marvin Thomas
Charles Lind
REVIEWEDFOR TRE ATTORNEY
                       GENERAL
BY: Leonard Passmore
