           THE        ATTORNEY         GENERAL
                          QFTEXAS


                             September 11, 1969


Hon. 0. N. Humphreys, Jr.        Opinion No. M-471
Administrator
Texas Liquor Control Board       Re:   Construction of H.B. 1078,
Austin, Texas                          Azts. 61st Legislature,
                                       R.S., 1969, concerning
Dear Mr. Humphreys:                    Wholesaler's Permit.
     You have requested an opinion concerning the construction
of H.B. 1078, Acts 61st Legislature, R.S., 1969, and have
specifically, requested an answer to the following four (4)
questions:
          "Question No. 1, In Section 1, Chapter 552, Acts of
          the blst Legislature, Regular Session, 1969 (herein-
          after referred to as House Bill 1078), is the Whole-
          saler's Permit therein referred to restricted ex-
          clusively to the permit authorized in Article 1,
          Section 15(6), Texas Liquor Control Act, and exclud-
          ing the General Class B Wholesaler's Permit authorized
          by Article 1, Section 15(7),T.L.C.A., and the Local
          Class B Wholesaler's Permit authorized by Article 1,
          Section 15(7a), T.L.C.A.?
         "Question No. 2. If the answer to Question No. 1 is
         I=',   is House Bill 1078 unconstitutional as making
         an unreasonable and arbitrary discrimination against
         the holders of General Class B Wholesaler's Permits
         and Local Class B Wholesaler's Permits?
          "Question No. 1   Is House Bill 1078 unconstitutional
          by being partially in conflict with Article 16, Section
          20, of the Texas Constitution?
          "Question No. 4. If House Bill 1078 is not unconsti-
          tutional. mav the holder of a Wholesaler's Permit in
          an area wet for the limited purpose of the sale of
          beer make sales and purchases of liquor if title to
          such merchandise passes: (a) within the limited wet
          area where he is located; or (b) within another area
          where the sale of all alcoholic beverages is legal?"
     We have concluded that the first question must be answered in
the affirmative. House Bill 1078 amends Article 1, Section 4,
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Hon. 0. N. Humphreys, Jr., page 2   (M-471)


Texas Liquor Control Act, by adding a new subsection (b-l),
which reads as follows:
          "Anything in this Act to the contrary notwith-
          standing, it shall not be unlawful for any
          person in any area wet for the limited purpose
          of the sale of beer, or the sale of beer and
          wine to apply for and be issued a Wholesaler's
          Permit, as described in Section 15, Subsection
          (b) of Article 1 of this Act, and to exercise
          all rights and privileges of such permit holders."
     Article 1, Section 15(6),Texas Liquor Control Act, provides:
          "Wholesaler's Permit.   A WhQlesaler's Permit shall
     authorize the holder to:
          (a). Purchase and import liquor from distillers,
     brewers, wineries, wine bottlers, rectifiers and manu-
     factures, who are the holders of Non-resident Seller's
     Permits, and their agents who are the holders of Manu-
     facturer's Agents Permits and purchase same from other
     wholesalers within this State;
          (b). Sell liquor in original containers in which
     received in this State to retailers and wholesalers
     authorized to sell same;

          (Cl’ -Sell liquor out of State to qualified persons;
          (a)- It is provided that a personsapplying for a
     Wholesaler's Permit shall be authorized to include in a
     single application his petition for such permit, as well
     as for private storage, storage in a public bonded ware-
     house, and private carrier's permit, and~any other permit
     which he is qualified to receive under the provisions of
     this Act. Provided, however, that such wholesaler shall
     pay the fees prescribed by this Act for each such permit
     covered in such Wholesaler's application. The same sub-
     division shall apply to a Class B Wholesaler's, Rectifier's,
     Brewer's, Distiller's, Class A Winery, and Class B Winery
     Permits.
          The annual State fee for a Wholesaler's Permit shall
     be One Thousand Two Hundred and Fifty Dollars ($1,250)."
     (Emphasis addedj.
     The Wholesaler's Permit referred to in H.B. 1078 appears to
us to be a new class of permit and by the clear language of H.B.
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    Hon. 0. N. Humphreys, Jr., page 3   (M-471)



    1078, one must refer to Section 15(6) of Article 1 for a descrip-
    tion of the permit and as to what a holder thereof is entitled
    to do. Since the Legislature is vested with power under Article
    16, Section 20, Constitution of the State of Texas, to regulate
    intoxicating liquors in this State, it has the power to provide
    for a new type of permit, and it need not, in particular, be
    specifically designated and contained in Article 1, Section 15,
    (the permit section of the Act). Since H.B. 1078 is a "Permit
    Act" and the General and Local Class B Wholesalers are not in-
    cluded, the question of "exclusion" does not arise.
         With reference to the second question, Article 16, Section
    20, of the Constitution of Texas delegates to the Legislature
    the power to regulate the manufacture, sale, possession and
    transportation of intoxicating liquors. H.B. 1078 comes within
    the power of the Legislature to create classes of permits and
    set up criteria by which one may obtain such a permit. Attorney
    General Opinion No, WW-1126 (1961).
         H.B. 1078 does not make an unreasonable discrimination
    against General or Local Class B Wholesalers. Nothing in the
    Act would prevent a person who presently holds a General or
    Local Class B Permit from making application, paying the fee, and
    obtaining a H.B. 1078 Permit, since the Act provides that s
    person may apply for this permit.
         We must, therefore, answer the second question in the nega-
    tive.
         We now proceed to consider the third question. In addition
    to the power delegated to the Legislature to regulate the manu-
    facture, sale, possession and transportation of intoxicating
    liquors, Article 16, Section 20, of the Constitution of Texas,
    provides as follows in Subsection (b):
               "(b) The Legislature shall enact a law or laws
          whereby the qualified voters of any county, justice's
          precinct or incorporated town or city, may, by a
          majority vote of those voting, determine from time to
          time whether the sale of intoxicating liquors for
          beverage purposes shall be prohibited or legalized
          within the prescribed limits; and such laws shall con-
          tain provisions for voting on the sale of intoxicating
          liquors of various types and various alcoholic content."
         By analogy, H.B. 533, Acts 57th Leg., R.S. 1961, ch. 478,
    p. 1066, allowed holders of brewer's or manufacturer's permits in
    wet areas to continue to operate if the area was voted dry pro-
    vided they did not sell contrary to the local option election,
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Hon. 0. N. Humphreys, Jr., page 4       (M-471)


Attorney General Opinion No. ~-11.26, supra, stated that H.B.
 533 did not violate Article 16, Section 20, of the Constitution
of Texas, by allowing such permlttee to continue to do buslness
after a local option election in which the location was voted
dry, provided he 'didnot sell in the dry area. WW-1126 is by
 implication interpreting --
                           sale under the local option law to
mean: sale by retailers for purposes of consumption in a dry
area and this is the type of sale prohibited by the Consti-
tution. This interpretation has never been challenged in court
and there is no legal authority   which is contrary thereto. Our
courts have given great weight to Attorney General's Opinions
and follow them unless clearly wrong. Thomas v. Groebl, 147
Tex. 70, 212 S.W.2d b25 (1348); Royalty v. Nicholson 411 S.W.2d
-565- fTex.Civ.Aon.
      .             1967. error ref: n.r,e.) H.B. 107 does not
 include sales Gbntrary-to local option dictates and'we feel the
holding in Attorney General's Opinion WW-1126 applies. It is the
policy of this office to follow earlier opinions on the same
subject where not clearly erroneous. Attorney General Opinion
No. o-1659 (1939).
     We must answeryour third question in the negative, relying
upon Opinion No. WW-1136.
     In response to the fourth question, we are of the opinion
that the passage of title is not controlling of any issue after
consideration of our answer to Question No. 3 and hence feel it
unnecessary to answer Question No. 4.
                        gUMMARY
              The Wholesaler's Permit referred to in
         H.B. 1078 is restricted to the Permit author-
         ized in Article 1, Section 1.5(h), Texas Liquor
         Control Act, as to the rights and privileges
         of the permit holders, H.B. 1078 does not make
         an unreasonable or arbitrary discrimination
         against the holders of General Class B Whole-
         saler's Permits and Local Class B Wholesaler's
         Permits. ,H.B. 1078 is constitutLona1 and does
         not conflict with Article 16, Section 20, Consti-
         tution of the State of Texas.
                                        Ve,p@ruly   yours,


                                    /               627zzi=
                                                 C. MARTIN
                                              ey General of Texas
Prepared by Charles R. Parrett
Assistant Attorney General
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    Hon. 0. N. Humphreys, Jr., page 5    (M&71)



    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    George Kelton, Vice Chairman
    Ronald Luna
    Bob Lattimore
    Tom Bullington
    Gordon Cass
    Meade F. Griffin
    Staff Legal Assistant
    Hawthorne Phillips
    Executive Assistant
    Nola White
    First Assistant




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