        THE




                     August   28,   191


Hon.  Coke R. Stevenson, Jr.              Opinion   No. v-1259
Administrator
Texas Liquor Control Board                Ret   Is person owning in-
Auqtin,  Texas                                  terest in business
                                                holding beer distrlb-
                                                utor'0 license ellgi-
                                                ble'~for employment by
                                                Texas Liquor Control
Dear   SIP:                                     Board.

           Your request for an opinion ask8 whether a person
who owna an interest in a beer distributing   buSine88 con-
ducted under a license issued by the Texas Liquor Control
Board is eligible for employment  by the Board.

             Article 666-5, V.P.C.,        in so far as pertinent   to
your   inquiry, provides that:

             "No person shall be eligible for appoint-
       ment nor Shall hold the office of member of the
       Board, nor be appointed      by the Board, nor hold
       any office or position under the Board, who has
       any connection   with any association,     firm, person,
       or corporation   engaged in or conducting     any alco-
       h2                                      OP who holds
       8tOCkS or bond8 therein, or who ha8 pecuniary        in-
       terest there&     nor shall any such person receive
       any commission   or profit whatsoever     from or have
       any interest   whatsoever    in any purchase  or Sale8
       of any alcoholic    liquors.   D . e

             "The Board or Administrator    shall appoint
       all necessary   clerks, stenographers,    inSpeCtOr8,
       and Chemists,   and other employees   to properly
       enforce the provisions   of this Act.

             'No person shall be eligible   for any ap-
       pointment  who has any financial   connection what-
       ever with any person engaged in or conducting
       any liquor business   of any kind, or who holds
       stock OP bonds therein, or who has any pecuniary
       interest therein, nor shall any such person re-
       ceive any commission   or profit whatever from, or
Hon.   Coke    R. Stevenson,      Jr,,   page   2    (v-l%g)



       have any interest whatsoever    In, the pur-
       chases or sales made by pers~ons authorized
       by this Act to manufacture,    purchase,   aelj;,
       or otherwise  deal in the llcuor business,
        (&UphaSiS Supplied throughout   opinion.)

           your question turns on whether a beer bUSine88
18 a liquor business within the meaning of Article 666-5.
That question arises by reason of the deflnitiod    of
"liquor" contained   in Article 666-se, V,P.C., that:

             "liquor'   shall mean any alcoholic bev-
       erage containing   alcohol in excess of four
       (4) per centum bx weight, unless otherwa
       indicated.   . o o

               "Any definition  contained herein               shall
       apply    to the same word in any form.

The definition      of   'beer"    contained        in Article    667-1,
V,P,C,,  is:

             "The term 'beer' means a malt beverage
       containing   one-half of l$ or more of alcohol
       by volume and not more than 4% of alcohol by
       weight, and shall not be inclusive of any
       beverage   designated by late1 or otherwise  by
       any other name than beer.

"ALcohollc'Beverage"       is defined      in Article      666-3a      to mean

              alcohol and any beverage  containing
       i&k   ihan one-half of one per cent (& of .W
       of alcohol by volume which is capable of use
       for beverage   purposes, either alone or WheU
       diluted."

If these definitions   control and apply to the word llauor,
as used in Article 666-5, then a strictly bm     bU8ineSS
would not be a liauor business within the provision8    Of
this Article and a person owning an interest in a beer
business would not by reason of Article 666-5 be ineligi-
ble for employment   by the Board,

           We are of the opinion that the word 'liquor,n
as used in the quoted portion of Article 666-5, 18 not
limited to the technical  definition  as containe$i In
Article 666-3a, but Is used as generally   descriptive   of
those businesses  dealing in alcoholic beverage8   which
.




    Han,   Coke   R. Stevenson,   Jr.,   page   3 (V-1259)



    the Texas Liquor Control Act subject8           to regulations
    by the Texas Liquor Control Board.

                The eligibility    provisions    in Article 666-5
    were contained     In the first comprehensive     regulatory
    act adopted    In 1935.   H. B. 77, Acts 44th~ Leg., 2nd
    C.S. 1935, ch. 467, pa 1795.       While substantially      the
    same technical    definitions   of "li$uor" and nbeer' were
    therein also contained,      the word   liquor" was used at
    times in the technical     sense of the definition      and at
    other times in a general sense meaning beverageS          eon-
    taining lesser amounts of alcohol.         Subsequent   amend-
    ments have substituted     the broader term "alcoholic
    bevePagesn   for the word 'liquor" In many provisions         of
    the Act, but there is no indication        that the meaning
    of the word "1Iquor" in Article 666-5, where It remains,
    has been changed.      The meaning   Is to be determined     from
    the context in which it Is used, and where the context
    indicate8 the broader significance        the meaning,   to use
    the language of the definition       Is, "OthePwise    Indicated."
    Examination   of the 1935 Act illustrates       the original
    significance    of the term "liquor business      of any kind"
    as contained    therein to include a beer business,       which
    meaning we conclude     is the same today.

                The conclusion   indicated   is borne out in the
    caption of the 1935 Act,      That dct regulated     all kinds
    of alcoholic beverages     including beer, yet the caption
    described   it as "regulating    the traffic in alcoholic
    liquors," as creating a "Liquor Control Board," a8 pro-
    viding for local option elections       a8 to the sale of
    ."intoxicating liquors having various alcoholic         contents,"'
    and as providing    for permits $0 engage "in the various
    phases of the liquor traffic.         Nowhere   in the caption is
      'beer" mentioned,   yet elaborete   regulation   of beer traf-
     fic is established    in the Act. It was obviously      consid-
    ered by the Legislature     as one of the "kinds" Of "liquor"
    buSines8,     The phrase "liquor b&Sine88     of any kind" bears
    close resemblance     to the phrases used in the caption to
     indicate regulation    of the "various phases of the liquor
     traffic" and sale of "liquors having various alcoholic
    contents,"    which obviously   included   'beer".

               Again, in the emergency  clause, traffic in beer
    was certainly   contemplated by the general Statement8     of
    the need for early effectiveness   of the Act.     It refers to
    the adoption of the constitutional   amendment    legalizing
    the sale of "liquor" in wet areas and recites the fact that
    traffic In "liquor" was then unregulated.      Both statement8
Hon. Coke El. Stevenson,      Jr.,    page   4   (v-1259)



applied   in fact   to beer   sales    and   traffic.

           The word "liquor" was used exclusively     through-
out Section 6 of Article I of the original Act, which
enUm8rated  the general duties and responsibilities     of the
Board, SOme of which applied to the beer business.       Sec-
tion 23 of Article   I defining   "wet" and "dry" at-east spoke
of "liquor" only but obviously     applied to areas where
"beer" sales were permitted     or prohibited.

           The section8 dealing with local option elections
and particularly  with ballots used the word "liquor" in
the sense of an alcoholic   beverage and left its applica-
tion to b88r to depend on the designated   alcoholic  content.

           These Illustrations   suffice to evidence the fact
that the word 'liquor," especially     when used in the provi-
sions of more general application,     USUally carried the
generic connotations   of the phrase "alcoholic beverages"
and was quite often qualified by a statement     of the partlc-
ular alcoholic  content to which th8 particular     provision
applied.

           Finally, and quite significantly,        the original
Act was scrupulously    specific    in prescribing   absolute  in-
dependence  of the regulatory     agency and the industry over
which It had jurisdiction.       Not only was the eligibility
provision repeated   in Section 5 of Article       1 but Section
21a of Article   II of the original Act made the following
specific provisions   designed to guarantee      that the Board
and Its employees   would not participate      in pOlItiCa    el8C-
tions.

           "Sec. 21a o It shall be unawful big        for
     any person paid a salary or per diem or receiv-
     ing any compensation    out of the appropriation
     made or tax88 collected    under the term8 Of this
     Act to engage in or take part in any pOlitiCa
     campaign.   By engaging   in a political   campaign
     or taking part in a political     Campaign  i8 meant
     and shall include distributing     circulars,   hand-
     bills, posting pictures,    handing out cards,
     making Speech88 or soliciting     support for or
     opposing the election of any candidate      for any
     public office.   Any such employee engaging      in
     such inhibited and unlawful conduct shall be
     subject to removal from his pOSitiOn and re-
     straint from reemplogment    in such department     for
     a period of one (1) year by a judgment in the
Hon.   Coke   R. Stevenson,   Jr.,   page 5   (V-1259)



       district court of the county wherein Such
       unlawful activity occurred,   either In whole
       or in part.   Any ten (10) or more qualified
       resident  voter8 of such county shall have
       authority  t0 institute a Suit in a district
       court of such county praying for the removal
       of such employee Prom such department,     citing
       such employee and any member of the Board,
       and, upon final hearing,   the allegations   of
       the petition being sustained,   the judgment
       Shall be to discharge  the employee and to re-
       strain the department  from re-employing    such
       employee for a period of one (1) year from
       the date of the judgment.

             "In like manner, any member of the Board
       who shall violate this section or who shall
       solicit, ask or suggest to any employee,      either
       directly or through any other person, that such
       employee violate such section, then and In that
       event such Board member may be removed by quo
       warrant0  proceedings   in the district court upon
       the relation of any ten (10) qualified     voter8
       of the county in which such violation     occurred.
       The writing of a letter into any county where-
       in such letter violates or Suggests,     asks or
       solicits a violation    of this law shall consti-
       tute snfficient   grounds for removal in any
       county through which such letter paSSed or in-
       to which such letter passed."

           This section was obviously    designed to aSSUre lm-
partial administration   and activity by the regulatory      body
and its personnel.    The whole scheme for setting up the
Liquor Control Board was to create an Independent       agency
whose actions would not be Influenced     by a financial    lnter-
est in the industry over which it exercised      jUrlSdiOtiOn,
and who would be expressly    prohibited  from exerting politi-
cal influence  in furtherance   of or opposition   to the inter-
ests of such industry.

            The principle   promulgated  in Article 666-5 is not
novel to Texas administrative      law.  See Article 4681, V.C.S.,
declaring   that no person who Is directly or indirectly     in-
terested   in any Insurance company may be a member of the
Board of Insurance    Commissioners   or a clerk in the Insurance
Department.
Hon.   Coke   R. Stevenson,   Jr.,   page 6 (V-1259)
                    ,.


            We are constrained   to attribute  to the Legis-
lature a consistent   policy In regard to such eligibility
provisions,   where such con8i8tency~finds    support in the
law e You are, therefore,    advisedzthat   one who owns an
interest in a licensed beer distPlbuting      business  18 in-
eligible for employment    by the Texas Liquor Control Board.




             One who owns an interest in a licensed
       beer distributing   business is ineligible for
       emplo    nt by the Texas Liquor Control Board.
       Art. r 66-5, V.P.C.

APPROVED:                                Yours   very   truly

Ned McDaniel                                PRICE DAIUEL~
State Affairs     Division               Attorney  General

Everett Hutchinson
Executive Assistant

Charles D. Mathews
First Assistant
