                                  February 22, 1966

                 *Honorable W. C. Lindsey           Opinion NO. C-622
                   Criminal District Attorney
                   Jefferson County             .   Re:   Under the stated facts
                   Beaumont, Texas                        whether the organization
                                                          in question is acting
                                                          illegally under the lsws
                                                          of the State of Texas and
                                                          in particular, in viola-
                                                          tion of the "Texas Open
                                                          sacmtuvP&rt;      $6;~3
                  Dear Mr. Lindsey:                              s    -,   . . .
                          In your request for an opinion of this office, you
                  state the following facts and ask the following questions:
                  _.           "A fraternal~~,organization
                                                         is furnishing,
.~... -,.
            --            on its premises, mixed alcoholic beverages and
                          beer to its members for a cash consideration
                          here in Jefferson County. They are doing so
                          under the 'Locker System' and/or 'Pool System'
                          as same is described in Article 666-15 (e)
                          Section l(b) and (c), Penal Code of Texas.
                          This organization does not have from the State
                          of Texas, or sny of its agencies or subdivi-
                          sions, a license or permit to deal in alcoholic
                          beverages, nor does it have a private club regis-
                          tration permit fromthaTexas Liquor Control
                          Board. We feel that it is a 'Fraternal Club'
                          as that term is used in Art. 666-15 (e) Sec. 12,
                          Texas Penal Code.
                                "Under the above facts, we request your
                           opinion on the following:
                                "1. Is the organization acting illegally
                           under the laws of the State of Texas and in
                           particular, in violation of the 'Texas Open
                           Saloon Law' (Art. 666-3, Penal Gode) and




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    Hon. W. C. Lindsey, Page 2     (c-622)


             Art.667-3, Penal'Code?

                  "2. May such an organization obtain a
             Private Club Reaistrat1on~Penni.tunder the
             laws of theState of Texas?
                   . . . .II
                  II
.
            The controlling question appears to be whether the
    fraternal organization is exempt from the application of the
    statute, being House Bill 892, Acts of the 57th Legislature,
    Regular Session, Ch. 262, p. 559. (Codified in Vernon's
    Penal Code as Article 666-15(e) of the Texas Liquor Control
    Act).
                                     /I27; V. P. C.)of the subject
            Section 1A (Art. 666-15e --
    act provides:
                 : "Provided, however, that nothing in
             ~Section 15(e) of Article 1 of the Texas
             Liquor Control Act shall apply to Fraternal
              or Veterans Clubs." '~
    .. ..~
             In Attorney GeneralOpinion No. ~~-111.8(1961)
    this office had occasion to consider this question and to
    hold that veterans and fraternal organizations were 'exempt"
    from the application of such Act. To "exempt" from the law
    means to relieve, excuse, or set free from a charge, duty,
    burden or liability imposed upon the general class to which
    the individual exempted belongs. Black's Law Dictionary,
    Third Ed., p. 720; 34 C.J.S. 1.377-1378,"Exempt", and cases
    cited. .:Accordingto the latter text, when used as a,verb,
    '"The term is not a technical'one but is a plain English
    word, meaning to clear, ,to except or excuse from some
    burdensome condition or obligation or the operation of
    some law~to which others are subject. .. .'.
            Thus .the'term "exempt" must 'be distinguished from
    the term "exclude", which, according to 33 C.J.S. 111,
    "Exclude",,~is:A word in common usage, defined as meaning
    to sh;t out. . ./or prohibit; to preclude; also to except
    . . ,.. It is apparent that the legislature expressed its
    intention under the act clearly and unambiguously to
    relieve fraternal orgenizations from the operation of the
    law in question and from any duty or liability to qualify
    under same. The language used is too clear for construction.




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    Eon. w. C. Lindsey, Pa@;&3   (c-622)


    As stated in 53 Tex.Jur.2d 174, Statutes, Sec. 123,

                 "There is no room for construction when
            the law is expressed in plain and unambiguous
            language and its meaning is clear and obvious.
            In such a case the law will be applied and
            enforced as hit reads, regardless of is policy
.           or purpose, or the justice of its effect. In
            other words, a court is not authorized to
            indulge in conjecture as to the intention of
            the legislature, or to look to the Gonse-
            quences of a particular construction, unless
            the meaning of the statute is doubtful."

            The intent of the ,Legislaturebeing clearly ascer-
    tainable, it must be followed and govern even though a
    literal meaning of the words used in the statute is not
    followed. ,The Statute should never be given a construction
    that leads to uncertainty, injustice, or confusion. Woods v.
    State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 7 (193-r           .

             We here reaffirm and concur in correctness of Attorney
    -general Opinion No. ~~-1118 (1961) and the necessary implica-
     tions of such opinion. Itnecessarily follows that the organi-
     zations inquired about are not excluded but are exempted from
     the Act. Any other ruling would necessarily declare that the
     fraternal and veterans organizations were excluded from the
     Act entirely and notentitled to operate a private club.
     Such a construction would render that portion of the law
     unconstitutional because it would constitute illegal class
     legislation. This is so because legislation which accords
     unequal treatment to uersons similarlv situated is held to
    ,vioiate the equal protection clause 05 the federal consitu-
     tion. Associated Indemnity Corp. v. Oil Well Drilling Co.,~
     258 SiW.2d 523 affi    d 153 Tex 153 264 S.W.2d b97 (1955).
     If an individual be zt%id a faciiitv & convenience which
     is furnished to others under substan'tiallythe same circum-
     stances, he may properly complain of the invasion of his
     constitutional rights to equal protection of the law. Beal
     v. Holcombe, 193 F.2d 384, cert. den. 74 S.Ct. 783, 347m.
       14 (1951). Even though the Texas Liquor Control Act is an
     exercise of the police power, such power is subject to judi-
     cial review and may not be extended to deprive citizens of
     property without equal protection of the law. Missouri-




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                   Hon. W. C. Lindsey, Page 4 (c-622)


                   Kansas-Texas R. Co. of Texas v. Rockwall CounFj Levee .I@. Dist.
                   No.3                                   . arvey v. Morgan,
                   'mS:W.2d    ~~?*($e;.',iv.A~~:1954, e&    ref., n.r.e.).
                   Since it is the duty of a court-r       possible to,indulge
                   a construction in favor of validity and constitutionality
                    (53 Tex.Jur.2d 225, Statutes, Sec. 158), we must reject
                   that construction.
               .
                               We are reinforced in our opinion by the further fact
                       that if the statute is subject to construction, then the Legis-
                       lature has twice met in regular session since Attorney General
                       Opinion ~~-1118 (1961) and has acquiesced in such ruling of
                       "exemption" and not seen fit to amend, alter, or change the
                       Ac;el;;lthis respect as interpreted and followed by the Attorney
                              . Such departmental construction will ordinarily be
                       adopted and upheld under these circumstances. 53 Tex.Jur.2d
                       259, 262, Statutes, Sec. 177, and cases cited. The doctrine
                       of legislative acceptance would thus be applicable and the
                       Legislature must be deemed to have accepted such construction.
                       Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d   .
                       515 1952   .  Calvert v. Houston Lighting & Power Co., 36g.S.W.2d
                       502 Tex.&v.App., 1963 error ref., n.r.e.).
                   .
.._. -.
          --
                            Although apparently~the exempted organizations have
                    generally been following the abave construction, we further
                    note that during the past five-year period no case has reached
                    the appellate courts in;which the correctness of this construc-
                    tion has been challenged., We hold, therefore, that the veteran
                    end fraternal organizations are not required to obtain a permit,
                    the law bein Q inapplicable to them4 and they are not in viola-
                    tion of the 'Texas ~Open Saloon Law , Art. 666-3 and Art. 667-3,
                    V.P.C., merely by failure to obtain a permit or otherwise comply
                   'with the provisions of Sec. 15 (e) of Art. 666.
                               This opinion shall not be construed to mean that the
                       veterans and fraternal organizations are exempted from other
                       provisions of the Texas Liquor Control Act and which are not
                       covered in Sec. 15 (e), Art. 666, V.P.C.




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                   Hon.,W. C.:Lindsey, Page 5    (c-622)


                                     SUMMARY


                               Fraternal or Veterans Clubs are
                               "exempt" from the provisions of
               .               Section 15 (e) of Art. 666, V.P.C.,
                               and are not in violation thereof or
                               acting illegally in selling alcoholic
                             - beverages to its members on its pre-
                               mises without a license or permit as
                               provided for and required in such law
                               for those not so exempt from its
                               provisions or requirements.

                                                    Yours very truly,
                                                    WAGGONER CARR
                                                    Attorney General

                   _.
~._. -.


                                                          $i!iiis*
          -_
                                                    By:
                                                          Assistant
                    KST:cf
                    APPROVED:
                    OPINION COMMITTEE
                    W. V. Geppert, Chairman
                    Robert Flowers
                    John Fainter
                    John Pettit
                    Ralph Rash~
                    APPROVRUFORTHRATTORNRY      GRNRRAL
                    BY: T. B. Wright




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