Untitled Texas Attorney General Opinion ( 1994 )

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DAN MORALES
ATTORNEY
GENERAL May 18, 1994
Mr. Doyne Bailey Opiion No. DA4493
. .
Adnmammr
Texas Alwholic Beverage Commission Re: WhetheraholderofapemGttosell
P.O. Box 13127 alwholic beverages may possess a harm
Auatin, Texas 78711-3127 for purposes of self defense (RQ-582)
Dear Mr. Bailey:
You have requested an opinion construing the amendments to the Texas Alcoholic
Beverage Code (the “code”), sections 61.71(f) and 11.61(e), passed during the Seventy-
third Session of the Legislature and e&uive September I, 1993, see Acts 1993, 73d
Leg.. ch. 934. You spe4Sally ask the follow+g:
1. Whethesaholdaofaretaillicenseorpamitauthorizingthe
sale and on- or off-premise consumption of alcoholic beverages
may still possess a tirearm ~&xthe purpose of self defense in light
of the new amendments, [sections] 61.71(f) and [] 11.61(e), [of
the]. . Code.. , and not risk cancellation of his license or
mt;
2. Whether a holder of a retail license or permit authorizing the
sale and on- or off-premise consumption of alcoholic beverages
may continue to sell fimarms in a building in which there is a
lkxnsedpremises and not jeopardize his license or permit; and
2a. Whether a holder of a retail license or permit authorizing the
sale and on- or off-premise consumption of the alcoholic
beverages may continue to sell such alcoholic beverages when
another entity sells firearms in an area separate from the leased
premises but within the same building and not jeopardize its
license or permit.
The amendments about which you ask were passed to provide that
[t]he commission or administrator shall cancel an original or
renewal. . permit if it is found, atIer notice and hearing, that the
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Mr. Doyne Bail9 - Page 2 (DM-293)
liwnsee knowingly allowed a person to possess a firearm in a
building on the licensed premises. This subsection does not apply to
a person:
(1) who holds a security officer wmmission issued by the
Texas Board of Private Investigators and Private Security Agencies,
if
(A) the person is engaged in the performance of the
person’s duties as a security officer;
(B) the person is wearing a distinctive uniform; and
(C) the weapon is in plain view; or
(2) who is a peace officer.
Alw. Bev. Code $8 11.61(e), 61.71@.1
In the text of your request letter, you state that prior to these particular
amendments, the Penal Code sections 46.01 through 46.03 were controllmg.s These
sections were also amended by the Seventy-third session of the Legislature. Section
46.02 addresses the act of unlawtidly carrying a weapon and now states that:
(a) A person commits an offense if he intentionally, knowingly,
or recklessly carries on or about his person a handgun, illegal knife,
or club.
(b) It is a defense to prosecution under this section that the
actor was, at the time of the commission of the offense:
. .
(2) on his own premises or premises under his control
unless he is an employee or agent of the owner of the premises and
his primary responsibility is to act in the capacity of a security guard
IWe note that while thereexists a separatecitationfor each provision,the text of the provisions
is identical.
28cetion46.01 provideschapterdefinitionsnot relevantto this discussion.
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to protect persons or property, in which event he must comply with
Subdivision (5);s
. . . .
(e) Except as provided by Subsection (f), an offense under this
section is a Class A misdemeanor.
(f) An offense under this section is a felony of the third degree
if the offe-nse is wmmitted on any premises licensed or issued a
permit by the state for the sale of alcoholic beverages.
Penal Code 5 46.02(a), (b)(Z), (e), (f) (footnote added). You have asserted that the
recent amendments to the Alcoholic Beverage Code and the exceptions found in the Penal
Code are in irrewncilable wntlict. We disagree.
The Alcoholic Beverage Code was created by an act which promulgated a formal
revision of the Texas Liquor Control Act, repealing the Liquor Control Act as amended
and making wnforming amendments to other laws. See Acts 1977, 65th Leg., ch. 194.
Prior to this change, the Liquor Control Act was part of the penal laws of this state
(Vernon’s Texas Penal Auxiliary Laws arts. 666-l to 667-33). Following the 1977
legislation, the two became separate and specific bodies of law, the Alcoholic Beverage
Code and the Penal Code. The Alcoholic Beverage Code became the specitic body of law
wncemed with “licensed premises” where alcoholic beverages are served for on- or off-
premise consumption. Violation of the provisions of the code result in license revocation.
Tbe Penal Code on the other hand, in this particular instance, is wncerned with
addressing “a person who has control of the premises.” The two bodies of law address
difkrent offenses with different penalties. In an effort to harmonize this seemingly
apparent wntlict, we conclude that the provisions of the Alcoholic Beverage Code refer
to a person olher than the holder of the license, i.e., another person.
Furthermore, we have conducted a careful review of the legislative history of the
amendments at issue. We are unable to find any evidence of legislative intent to prevent
all owners from maintaining a firearm for their own protection. In the absence of
%bdivision (5) providesan exceptionfor a person who is serving as a securityguardcut&xl
by the Texas Stale Board of Private Investigatorsand Private Security Agencies under certain
ckmutances. It is interestingto note that the languagein the exceptionis identicalte thatwhich is used
intheamendments tothe AlcoholicBeverageCodesections 11.61(e),61.71(f).
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Mr. Doyne Bail9 - Page 4 (DM-293)
legislative intent, we rely on the Code Construction Act. Located in the Government
Code, section 312.005, it speciGcally provides:
In interpreting a statute, a wurt shall diligently attempt to
ascutah legislative intent and shall consider at all times the old law,
the evil, and the remedy.
In this instance we must construe an amendment to a statute. Typically, when an entire
new section has been introduced into a law by amendment, the new section must be
wnstrued in light of preexisting law, as it stands atIer the amendment, and the new
section, together with all unrepealed sections of preexisting law, should be considered as a
hsumonious whole. Nelms v. Gulf Coast Sme Bank, 525 S.W.2d 866 (T’ex. 1975);
Analman v. Pen& 161 S.W.2d 455 (Tex. 1942).
We now turn to your second inquiry in which you ask that we address the instance
where a holder of a retail license or permit authorizing the sale of alcoholic beverages also
sells 6rearms in a building in which there is a licensed premises or another entity sells
tIrearms in an area separate and apart from the licensed premises but within the same
building. The circumstances which you describe require the consideration of numerous
factual situations and the outcome may be dependent upon the wntractual relationships
between the lessor and the lessee of the licensed premises. Such factual analysis is beyond
the purview of the opinion process. See, e.g., Attorney General Opinions DM-98 (1992)
at 3; H-56 (1973). Furthermore, it is not a general practice of ~this office to wnstrue
contracts. E.g, Attorney General Opinions DM-192 (1992) at 10; JM-697 (1987) at 6.
Hence, it is for the foregoing reasons that we are unable to conclude whether tbe
circumstances which you describe violate sections 61.71(0 and 11.61(e) of the Alcoholic
Beverage Code.
This, however, does not conclude our analysis. The Alcoholic Beverage Commis-
sion as an agency of the state is empowered to proscribe and publish such rules and
regulations as necessary to carry out the provisions of the Alcoholic Beverage Code and
to make decisions involved in granting applications for licensed premises. Alw. Bev.
Code $5 5.31; see GulfLand Co. v. Adanbc Refining Co., 131 S.W.2d 73 (Tex. 1939);
Tern Liquor Conrrol Bd. v. Super Sav. Stamp Co., 303 S.W.2d 536 (Tex. Civ. App.-
San Antonio 1957, tit refd n.r.e.); c$ Alw. Bev. Code 4 11.49 (designation of licensed
premises is subject to approval of the commission). In Texas Liquor Con@olBoard, the
wurt of appeals stated that where a statute expressly authorizes an agency to regulate an
industry, it impliedly authorizes the adoption of rules to that end, and that such
authorization forecloses the idea that the legislature intended to spell out the details of all
operations under the act. 303 S.W.2d at 53940. Accordingly, we conclude that in the
absence of legislative standards, the Alcoholic Beverage Commission may exercise its
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rulemaking authority to address situations ‘such as those you have described in a manner
consistent with the purposes of the code.
SUMMARY
A holder of a retail license or ptit authorizing the sale and on-
or off-premise consumption of alcoholic beverages may possess a
firearm for the purpose of self defense. Whether the circumstances
which you describe involving the sale of &arms violate sections
61.71(f) and 11.61(e) of the Alcoholic Beverage Code+ wncerns
questions which are beyond the purview of the opinion process.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assist& Attorney General
DREWDURHAM
Deputy Attorney General for Criminal Justice
WILL PRYOR
specidcounsel
RENBA HICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Toya C. Cook
Assistant Attorney General
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