                                                                  R-804

                                                                          5sr
                                     OFPICE       OF

                         THE ATTORNEY               GENERAL
                                   AVSTIN.     TEXAS
PRICE   DANIEL
.4TTORNEYGENERAL                   October   7, 1947

          Hon. Gene Maddin            Opinion No. V-400
          District Attorney
          McLennan County             Re:    May beer, as defined by
          Waco, Texas                        Art. 667-1, V.P.C., be
                                             legally  sold in Justice
                                             Precinct No. 5 of McLen-
                                             nan County, Texas?
          Dear Mr. Ma&din:
                     Your.letter requesting an opinion          of this
         Department reads, in part, as follows:
                           "In the year 1909, Justic&'.Precinct
                   No. 5 of McLennan County, Texas, by local
                    option voted said precinct dry as to both
                   liquor ana beer.     No local option election
                   has been held in said precinct since said
                   time except that in the year 1933 a local
                   option election   was held under the provis-
                   ion'of   Chapter 116, Acts of the Regular
                   Session of the Forty-third    Legislature    at
                   which election   sale and aistribntion    0;
                   vinous and malt beverages containing one-
                   half of one per. cent or more of alcohol by
                   volume and not more than three' and two-
                   tenths per centum of alcohol by weight was
                   adopted under the 1933 amendment to Section
                   20, Article   16 of the Constitution   of Texas.
                          "By county wide loc.al option elections
                   under the 1935 statutes,   McLennan County,
                   Texas, generally  is wet as to beer and dry
                   as to all other forms of intoxicating    liquor.
                                   : Can beer as defined by Arti-
                   cle   66ymof t e Penal Code of Texas be legal-
                   ly s0ia in Justice Precinct No. 5 of McLennan
                   County, Texas?"
                      We shall assume for purposes of this opinion
        that.the 1933 local option election     held in Justice we-
        cinctJ0.    5 was valid in all respects!    and that no county-
        wide election   resulting in the prohibltion    of all.albohol-
        ic beverages has been held in YIcLennan County since 1933.
558 Hon. Gene Maaain - Page 2               (V-400)


                 The local option election   held in Justice
    Precinct No. 5 was held under the authority of Article
    XVI, Section 20 of the Constitution    of Texas, as amendea
    in 1933, and in accordance with Chapter 116, Acts of the
    Regular Session, Forty-third  Legislature.    Article XVI,
    Section 20 as adopted August 26, 1933, was the so-called
    “beer amendment”. This amendment is quoted in full as
    r0lhvs:


                     “The manufacture, sale, barter or exchange
                 in the State of Texas of spirituous,           vinous or
                malt liquors or medicated bitters           capable of
                 producing intoxication        or any other intoxicant
                whatever except vinous or malt liquors 0r not
                more thti three and two-tenths per cent (3.2$)
                alcoholic    content.by weight, (except for medi-
                cinal, mechanical, scientific,          or sacremental
                purposes) are each and all hereby prohibited.
                The Legislature     shall enact laws to enforce
                this Section,     and may from time to time pre-
                scribe regulations       and limitations     relotive    to
                the manufacture, sale, barter, exchange;or
                possession for sale or vinous or malt liquors
                of not more than three and two-tenths per cent
                (3.2%) alcoholic      content by weight; provided
                the Legislature     shall enact a law or laws where-
                by the qualified      voters of~any county, justice’s
                precinct,    town or city may, by a majority vote
                of those voting,      determine from time to time
               whether the sale for beverage purposes of vin-
                ous or malt liquors containing not more than
                three and two-tenths per cent (3.27%) alcohol
               by weight shall be prohibited within the pre-
                scribed limits;     and provided further that in
                all counties in the State of Texas and in all
               political    subdivisions      thereof, wherein the
               sale of intoxicating        liquors had been prohibitea
               by local option elections          held under the laws
               of the State of Texas and in force at the time
               of the taking effect        of Section 20, Article        16,
               of the Constitution        of Texas, it shall continue
               to be unlawful to manufacture, sell,            barter or
               exchange in any such county or in any such polit-
               ical subdivision       thereof,    any spiritous,     vinous
               or malt liquors or medicated bitters,             capable
               of producing intoxication          or any other intoxi-
               cant whatsoever,      unless ana until a majority
               of the ~ualiriea voters in said county or po-
              ‘litical    subdivision     thereof voting in, an elec-
              ti on el        or sue
                                                                   559
Hon. Gene Maddin - Page 3            (V-400)



           to be lawful to manufacture. sell,   barter and
           exchange in said county or politioal    subdivi-
           sion thereof vlnous or malt liquors    contain-
          tig not more than three and two-tenths per
           cent (3.2p) alcoholic   content by weight, and
          %he provisions    of this subsection shall b
           self -enac  n ."   (Emphasis added througholt
          ‘this opinion)
    ‘.A
           Chapter 116, Acts of the Regular Session of the
Forty-third    Legislature was passed prior to the a&option
of the above constitutional     amendment and became effect-
ive September 15, 1933.     Generally described,    it was an
act regulating    the manufacture, sale, distribution,    ana
transportation    of vinous or malt beverages.    Section 1
(a) of this act defined "beer* as follows:
              "The word 'beer' as hereinafter used in
          this Aat ana for the purposes of this Act
          shall mean beer containing one-half (1) of one
          per oent (1%) or more of aloohol by volume and
          not more than three and two-tenths per centum
          (3.2%) or alcohol   by weight."
           Thus, it beoomes apparent that under the consti-
tutional and statutory provisions    in etfect in 1933, when
the election was held in Justice Preoinct No. 5, only
vinous or malt liquors containing not more than 3.2 per
cent alcohol byweight    could be lesalizea.

           In 1935, Article    XVI, Section 20 of the Texas
Constitution    was again amended to authorize the sale of
all liquors within the State of Texas in such counties,
justice   precincts,   or incorporated   cities  or towns as
should by local option legalize       them, This amendment is
now in effect    and in so far as pertinent     to the point un-
der discussion     is quoted below:

              "(Cl   In all counties,     justice's    precincts
          or incorporated    towns or cities wherein the
          sale of intoxioating     liquors had been pro-
          hibitea by local option elections          held under
          the laws of the State of Texas and in force
          at the tine of the taking effect          of Seotion
          20, Article   XVI of the Constitution        of Texas,
          it shall continue to be unlawful to manuftic-
          ture, sell,   barter or exchange in any such
          county, justice's    precinct or 1ncorporateK
          town or city,    any spiritous,     vinous or malt
560   Hon. Gene Maddin - Page 4         (V-400)


              liquors or medicated bitters    capable of
              producing intoxication    or any other in-
              toxicants whatsoever, for beverage pur-
              poses unless and until a majority of the
              qualified voters in such county or poli-
              tical subdivision   thereof voting in an
              election held for such purpose shall de-




                   Pursuant to this 1935 constitutional          amendment,
      the Second Called Session of the Forty-fourth              Legislature
      repealed Chapter 116, Acts of the Regular Session of the
      Forty-third      Legislature,.     and passed Chapter 467 commonly
      referred to as the Texas Liquor Control Act.               This act,
      as amended, is coairied           as Articles   666 and 667 of Ver-
      non’s Penal Code and constitutes             the Texas Liquor Control
      Act .as it now exists.          The definition    of “beer” set out
      in Chapter 116, Acts of the Regular Session of the Forty-
      third Legislature,       and quoted above was repealed and AC-
      title     667-1(b) or Vernon’s Penal code, as now in effect,
      defines *beer* as a malt beverage containing one half of
      1 per cent or more of alcohol by volume and not more than
      4 per cent of alcohol by weight.
           ‘--q
                   Chapter 448, Acts of the Regular Session,           Forty-
      fifth Legislature,       was passed in 1937, .3na was an act re-
      vising the Texas Liquor Control Act as originally               passea
      in 1935.      Article   II,   Section    2  of Chapter 448  provides
      in part as follows:            x., -

                 n. . . . in justice   precincts    . . .
             wherein a majority of the voters have
             voted to legalize   the sale of beer in
             accordance with the loc’al opt ion provis-
             ions of Chapter 116, Acts of the Regular
             Session of the Forty-third     Legislature
              . . . . beer as herein   defined may be
             manufactured. distributed     and sold as
             herein provided.
      Hon. Gene Maddin - Page 5      (V-400)                       563,


                 The words "beer as herein defined" refer baok
      to Article   II, Seotlon l(b) of Chapter I+@, which pre-
.*    oeaes the above provision    and which is quoted as follows:
                "The term 'beer' means a malt beverage
            containing one-half of one per cent or
            more of alcohol by volume and not more
            than four (4) per cent of alcohol by weight,
            and shall not be inclusive  of any beverage
            designated by label or otherwise by any oth-
            er name than beer."
               This is the same d.efinition   which is now cod.&
     flea as Article    667-1(b) of Vernon's Penal Code. There-
     fore, the Legislature,     when they used the words "beer as
     herein defined"    could only have intended 4 per cent beer.
     The import of the language is to legalize       the sale of 4
     per cent beer in counties,     justice precincts   and incor-
     porated cities    or towns which voted to legalize    3.2 'per
     cent beer under the authority of the 1933 constitutional
     amendment and in accordance with the local option provis-
     ions of Chapter 116, Acts of the Regular Session or the
     43ra Legislature.      This appears to be the legislative     in-
     tent despite the following     language which appears in or-
     title XVI, Section 20 of the Texas Constitution       as final-
     ly amended in 1935:
                ". . . . provided that this subsection
            shall not prohibit    the sale of alcoholic
            beverages containing not more than 3.2 per
            cent alcohol by weight in cities,     counties
            political      subdivisions   thereof in which
            the qualified   vot6rs have voted to legal-
            ize such sale under the provisions     of Chap-
            ter 116, Acts of the Regular Session of the
            43ra Legislature."
                 The language quoted immediately above limits the
     alcoholic    content of beverages legaliz+        under the prods-
     ions of Chapter 116, Acts of the Regular Session of the
     Forty-third    Legislature    to %ot more than 3.2 per cent al-
     cohol by weight."      We   are familiar with the rule of stat-
     utory construction      to the effect that all doubts must be
     resolved in favor of the constitutionality          of a statute,
     but we believe that part of Chapter 448, Acts of the Reg-
     ular Session, Forty-fifth       Legislature,   referred  to above,
     is in clear ana irreconcilable        conflict  with that part of
     the constitutional     amendment of 1935 quoted immediately
     above'. We believe      strength is aadecl to this contention by
562Hon . Gene Maadili - Page 6       (V-400)


     the many Texas decisions       to the effect   that ‘the local
    option status of a particular political          subdivision
    may be changed only by the voters in the territory
    where such law was ori inally vitalized;           See Houchins
    v. Plainos;    110 S. W. 7 2d) 549, and cases cited there-
     in.   It is, therefore,     the opinion of this Department
     that Article    II, Section 2 of Chapter 448, Acts of the
    Regular Session of the Forty-fifth         Legislature?    oodi--
    fled as Article      667-2 of Vernon's Penal Code, in so
    far as it attempts to legalize         4 per cent beer in tise
    political    subdivisions    which had voted to legalize       on-
    ly 3.2 per cent beer under the provisions          of Chapter
    U6, Acts of the Regular Session of the.Forty-third
    Legislature    is violative     of Article  XVI, Section 20,
    of the Texas Constitution        adopted in 1935.     It is the
    further opinion of this Department that only beer of
    an alcoholic    content not in excess of 3.2 per cent by
    weight may be legally       sold in Justice Precinct No. 5
    of MoLennan County, Texas.


               Article II, Section 2 of Chapter I+@, Acts
           of the Regular Session of the Forty-f1ft.h    Legis-
           lature, in so far as it attempts to legalize      4’
           per cent beer in those political   subdivisions
           which had voted to legalize   only 3.2 per cent
           beer in 1933 is in conflict   with Article   XVI,
           Section 20 of the Texas Constitution.      There-
           fore, only beer of an alooholic   oontent not in
           excess of 3.2 per cent by~weight may be legally
           sold in Justice Precinct No. 5 of McLennan
           County, Texas.




    ATTORNEY
           GENH(AL
    CYM:rt:wb                              Assistant
