Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 3,2003
The Honorable Randall W. (Randy) Reynolds Opinion No. GA-01 10
District Attorney
143rd Judicial District Re: Whether a home-rule city may ban the
P-0. Box 150 sale of alcoholic or other beverages in glass
Pecos, Texas 79772 containers (RQ-0036-GA)
Dear Mr. Reynolds:
You ask two questions regarding a home-rule municipality’s authority to regulate the sale
of glass beverage containers within the municipality’s corporate limits: (1) whether the city may
prohibit the sale of all glass beverage containers; and (2) whether the city may ban the sale of glass
containers of alcoholic beverages.
A home-rule city possesses full powers of self-government and looks to the legislature
not for grants of power, but only for limitations on its power. See Dallas Merchs. &
Concessionaire’s Ass ‘n v. City of Dallas, 852 S.W.2d 489,490-91 (Tex. 1993). An ordinance of
a home-rule city may not, however, regulate a subject matter that is preempted by a state statute. See
id. at 491. The mere fact that the legislature has enacted a law addressing a subject does not mean
that the entire subject matter is wholly preempted. See City of Richardson v. Responsible Dog
Owners of Tex., 794 S. W.2d 17,19 (Tex. 1990). A general law and a city ordinance will not be held
repugnant to each other if any reasonable construction leaving both in effect can be reached. See
Dallas Merchs., 852 S.W.2d at 491. Consequently, if the legislature chooses to preempt a subject
matter ordinarily encompassed within the broad powers of a home-rule city, it must do so with
unmistakable clarity. See Ciq of Sweetwater v. Geron, 380 S.W.2d 550,552 (Tex. 1964).
We begin with the question of whether a city may prohibit the sale of all alcoholic beverages
in glass containers. Section 1.06 of the Alcoholic Beverage Code provides:
Unless otherwise specifically provided by the terms of this
code, the manufacture, sale, distribution, transportation, and
possession of alcoholic beverages shall be governed exclusively by
the provisions of this code.
TEX. ALCO. BEV. CODE ANN. 5 1.06 (Vernon 1995). In addition, section 109.57 of the code
provides, in relevant part:
The Honorable Randall W. (Randy) Reynolds - Page 2 (GA-01 10)
(a) Except as is expressly authorized by this code, a
regulation, charter, or ordinance promulgated by a governmental
entity of this state may not impose stricter standards on premises or
businesses required to have a license or permit under this code than
are imposed on similar premises or business that are not required to
have such a license or permit.
(b) It is the intent of the legislature that this code shall
exclusively govern the regulation of alcoholic beverages in this state,
and that except as permitted by this code, a governmental entity of
this state may not discriminate against a business holding a license or
permit under this code.
Id. 9 109.57(a)-(b) (V emon Supp. 2003). In Dallas Merchant’s, the Texas Supreme Court
considered a City of Dallas ordinance that prohibited the sale of alcoholic beverages within 300 feet
of residential areas. See Dallas Merchs., 852 S.W.2d at 490-91. The court concluded that the
ordinance was preempted by section 109.57(b) of the Alcoholic Beverage Code.
The Dallas Merchant’s case provides the answer to your second question. In that opinion,
the court observed that
[t]he Legislature’s intent is clearly expressed in section 109.57(b) of
the TABC - the regulation of alcoholic beverages is exclusively
governed by the provisions of the TABC unless otherwise provided.
Section 109.57 clearly preempts an ordinance of a home-rule city
that regulates where alcoholic beverages are sold under most
circumstances.
Id. at 491-92 (citation omitted). In the situation you pose, the city is attempting to regulate the sale
of all alcoholic beverages that are packaged in a certain manner. No provision of the Alcoholic
Beverage Code “otherwise provides” this authority. Thus, to the extent the ordinance purports
generally to regulate the sale of all alcoholic beverages of whatever kind, it is preempted by section
109.57(b) of the Alcoholic Beverage Code.
You also ask whether a home-rule city may adopt an ordinance that bans the sale of all glass
beverage containers. In Responsible Dog Owners of Texas, a 1990 decision, the Texas Supreme
Court considered a City of Richardson ordinance that prohibited the keeping of a “vicious or
dangerous animal” within the city limits. See Responsible Dog Owners of Tex., 794 S.W.2d at 18.
The ordinance had been challenged on the ground that it was preempted by section 42.12 of the
Penal Code, which restricted and criminalized the keeping of dangerous dogs. The court noted that
section 1.08 of the Penal Code provides that “[n]o governmental subdivision or agency may enact
or enforce a law that makes any conduct covered by this code an offense subject to a criminal
penalty.” Id. at 17. The court then declared:
The Honorable Randall W. (Randy) Reynolds - Page 3 (GA-01 10)
Comparing the City’s ordinance with section 42.12, we
observe that the ordinance applies to all animals within city limits;
section 42.12 relates only to dogs. Moreover, the ordinance is a
comprehensive attempt to address the control of animals. Section
42.12 is much more limited in that it requires that an owner restrain
a dog and carry insurance coverage. Finally, the ordinance applies to
any animal which may present a threat to the safety and welfare of the
City’s citizens; its enforcement does not depend on the dog having
already bitten someone. By contrast, section 42.12 is essentially a
“first bite” law which makes it an offense only if a person keeps a dog
that has actually engaged in vicious conduct and fails to restrain the
dog or obtain the required insurance coverage within sixty days of the
dog’s vicious conduct.
Id. at 19. The court concluded that, because the ordinance was broader than the state statute, the
ordinance was not preempted by the statute. See id.
Likewise, the proposed ordinance of your first question is broader than section 109.57 of the
Alcoholic Beverage Code. The ordinance would ban the sale of all glass beverage containers within
the city limits, regardless ofwhat beverage they might contain. Such an ordinance would not impose
stricter standards on businesses required to have a permit or license to sell alcoholic beverages than
are imposed on businesses that do not sell alcoholic beverages, and thus, would not contravene
section 109.57(a). It would not prohibit the sale of alcoholic beverages in plastic bottles or
aluminum cans, nor would it single out alcoholic beverages for special treatment. Rather, it would
simply prohibit the sale of all glass beverage containers. Thus, the proposed ordinance described
in your first question would not effect the regulation of alcoholic beverages.*
We conclude that a home-rule municipality may not, under section 109.57 of the Alcoholic
Beverage Code, prohibit the sale of alcoholic beverages in glass containers within its corporate
limits. The city may, however, prohibit the sale of all glass beverage containers within city limits.
‘We here consider the ordinance only under the Alcoholic Beverage Code. We do not address any possible
federal constitutional issues.
The Honorable Randall W. (Randy) Reynolds - Page 4 (GA-01 10)
SUMMARY
A home-rule municipality may not, under section 109.57 of
the Alcoholic Beverage Code, prohibit the sale of alcoholic beverages
in glass containers within its corporate limits. A home-rule city may,
however, prohibit the sale of all glass beverage containers within city
limits.
Yourgvery truly,
/
Attom ral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee