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                                         November        29, 1974


        The Honorable Kenneth W. Cook                    Opinion No.       H-   464
        Acting Administrator, Texas Alcoholic
        Beverage   Commission                            Re:   Authority of .the Alcoholic   :.
        P. 0. Box 13127, Capitol Station                       Beverage’ Commission      to’
        Austin,  Texas 78711                                   issue a permit fora premise
                                                               on the campus of a state
        Dear Mr.   Cook:                             .         university..

             You have asked our opinion on four questions.which  re!ate to the sale
        of alcoholic beverages  on the campus of state supported universities.’   Your
        first question involves Article 666-25a, Penal Auxiliary  Law~a, which pro-
        vides in part that:

               . . . the governing authorities  of any city or
               town within the corporate  limits of any such city
               or town may prohibit the sale of alcoholic beverages
               by any dealer where the place of business    of any   .
               such dealer is within three hundred (300) feet of any
               church, public school or public hospital.    . . .

            You inform us that the City of Houston       has enacted       an ordinance   which
        provides in part that:

                   It shall be unlawful for any dealer to sell
               alcoholic beverages   within the corporate limits
               of the city where the place of business of such
               dealer is within three hundred (300) feet of any
               church, public elementary,    junior high or high
               school or public hospital   . . . .

            Your first question asks whether    the Houston     ordinance       is constitutional
        and is authorized by Article 666-25a.




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    The Honorable       Kenneth W.        Cook,   page 2      (H-464)




       . The basic difference     between the statute and the ordinance is in its
    effect on public schools.       The statute includes a reference      to public
    schools.     That term includes state supported institutions        of higher
    education.     Attorney   General Opinion M-749 (1970).        The ordinance
    is worded to delete public po,st-secondary       institutions   from its coverage.
    You have advanced no indication of why you question the constitutionality
    of the ordinance.       The statute previously   has been held to be constitutional.
    Attorney    General    Opinion O-5160 (1943).    We believe the city’s distinction
    between colleges     on the one hand and elementary        and high schools on the,
    other has a rational basis and is not barred by the equal protection clause
    of the Fourteenth Amendment         to the United States Constitution.      This ,is.
    particularly    true given the recent lowering of the age at which alcoholic
    beverages     can be legally consumed so that virtually all college students
    are now able to legally purchase and consume alcoholic beverages..
    Accordingly,     we find no constitutional   barriers   to the city ordinance.

         We also believe that Article 666-25a   does not prohibit the type of                           I
    ordinance involved here.    Under the statute the city is permitted but not
    required to take the action outlined in the statute.   The city has no obli-
    gation to invoke any of the authority granted it by the statute, and we see
    nothing in the statute to suggest that if any of the power is exercised,   all
    of it must be exercised.   Accordingly,   we believe the city ordinance is
    valid.

        In connection with your second question you inform us that a Texas
    corporation   holding lease rights from a state supported university  has
    appbed for a Mixed Beverage      Permit for premises  located on the campus
    of that university.

        Your   second    question   is:

                 Does the fact that the premises  sought to be
            licensed are located on the campus of a state
            supported university   on land owned by the State
            of Texas require the Texas Alcoholic     Beverage
            Commission    to refuse the issuance  of a permit
            to the corporation  acting as a concessionaire?


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    The Honorable    Kenneth W.       Cook,   page 3      (H-464)




        Assuming that the premises   which are sought to be licensed are not
    stadiums or enclosures   where athletic events sponsored or participated in
    by public schools are conducted,  (Education Code, § 4.22) we know of no
    statute which would preclude the Commission    from issuing a permit.

        Your third and fourth questions were presented in a supplemental
    request and involve an application for a Mixed Beverage     Permit for
    premises   on the campus of the University   of Texas at Austin.  Unlike
    the Houston situation,  no concessionaire  is involved.  The University  itself
    is the applicant.

        Your third question     is:

                Is it constitutional for the University of Texas
            at Austin to hold a mixed beverage permit issued
            by the Texas Alcoholic    Beverage  Commission?

        You have indicated that your specific concern is whether one agency of
    the state can license another agency.      It is not uncommon for a state
    agency or its employees    to be required to be licensed by another agency.
    For example,    drivers of state vehicles are not exempt from the require-
    ments of obtaining a driver’s    license.    V. T. C. S. art. 6607b,     5 3; Attorney
    General Opinion O-470 (1939); cf, , Attorney General Opinions C-249 (1964),
    O-887 (1939), O-790 (1939), O-723 (1939).        State owned nursing homes are
    specifically required to be licensed.      V. T. C. S. art. 4442~.      An act or
    practice will not be held unconstitutional     unless it is prohibited by the
    Constitution in express terms or by necessary         implication.     Lower Colorado
    River Authority v. McGraw,      83 S. W. 2d 629 (Tex. Sup. 1935).        You have
    suggested no section of the Constitution which would prevent the Commission
    from issuing a Mixed Beverage Permit to the University             of Texas at Austin,
    and we know of none.

        Your   final question   is:

                Does the University  of Texas at Austin qualify
            as an entity authorized to hold a mixed beverage
            permit under the Texas Liquor Control Act?




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The Honorable    Kenneth   W.   Cook,        page 4   (H-464$




     You indicate in your letter that your specific concern is whether the
University   of Texas is a “person” qualified to hold a permit under the
definition of “permittee”   at Article 666-3a(12), and the definition of “person”
at Article 666-3a(6).    Those portions of the statute provide:

            (121 ‘Permittee’   shall mean any person who is
        the holder of a permit provided for in this Article,
        or any agent, servant,   or employee of such person.

            (6) ‘Person’ shall mean and refer to any natural
        person or association    of natural persons,    trustee,
        receiver,  partnership,    corporation,   organization,
        or the manager,    agent, servant,    or employee of any
        of them.

      There is nothing in the definition of person to exclude a state agency,
 and we believe the definition was intended to be broad.       Without considering
 whether other portions of the definition might apply to an agency of the
 government,    we are of the opinion that the University    of Texas qualifies as
‘an organization.    See Adams v. United States,    241 F. Supp. 383 (S. D. Ill.: 1965)
 (holding that the United States is an organization);   cr. , u,.    United States,
 v. Myers,    363 F.2d 615 (5th Cir. 1966); Government      Employees    Insurance       :, .~.
 Co. v. United States, 349 F. 2d 83 (10th Cir. 1965)                   ‘382 U.S.. lb26
 (1966); Irvin v. United States, 148 F. Supp. 25 (D. S. D. 1957); Rowley ‘v.
 United States, 140 F. Supp. 295 (D. Utah 1956) (all holding that the United
 States is included in the term,   “person or organization”),     Accordingly,         :
 we believe t.he University  of Texas qualifies to hold a permit from~the           .      ,:
 Alcoholic   Beverage Commission.

                                SUMMARY

             The Alcoholic  Beverage Commission     can issue a
         permit for premises   located on the campus of a state
         university, and the university  itself may hold such a
         permit.

                                               -Very truly yours,



                                                 jHN L. HILL                       ,.   ..
                                               Attorney General     of Texas




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The Honorable   Kenneth W.   Cook,    page 5     (H-464)




APPROVED:




DAVID M. KENDALL,      Chairman
Opinion Committee




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