Untitled Texas Attorney General Opinion ( 1985 )

The Attorrwy General of Texas
September 3, 1985
JIM MATTOX
Attorney General
suprrrrvr
cowlBulldlnO Eonorable Jim Yeen, Opinioo Ho. JI+350
P.0. Box 1254S ilocklcy County Att~miey
Aurtln. TX. 78711-254s Eiockley County Courtthouee Re: Whether a cmmnissloncrs court
51214752501 may expend county travel funds to
P. 0. Box 11
Telex 9101874+1357
Telecopier 5121475as5
Levellaud, Tuna '19336 oppose issueuce by the Alcoholic
Beverage Comission of a private
club permit
714 Jackson, Sulle 700
OalkS. TX. 752024506
Dear Mr. Weems:
214174289u
Too aek uhethcr
4S24Alberta Ave.. sdte Is0
El Paso. lx. 799052792 . ~Colmty comlseiouers court, after having duly
QlY53334s4 voted OIL a notion To proteet the Issuance Of A
Private Club License, for A private club to be
,Wl rexas, SUllS 700 located In the county wer vhich the said commis-
HOUslOn.lx. 770023111 sioners court presides, acting as a gwexniag
71Y223sSS body. mry expend county funds for travel and
related expeuses, to go to Austin, Tueo, for the
purpose of protesting against the issuance of euch
SC6Broadway.Suite312
Lubbock, TX. 79101-2479
private club license from the Alcoholic Beverage
SW7476230 CoriW.iOU.
You advice that tbc axpanses 8t issua are for trevel and related costs
43W N. Tenlh. !&It. S
of county cr(s~~knmrs themelvar and selected vitnerrea for the
McAlI.tl. lx. 7s501.1085
512mS24547
county.
The issuaaee of "private club registration permits" is gwerned
200 MIhl Plaza. SUIM 4m by chapter 32 of t!he Alcoholic Beverege Code; vhich vas enacted ae. a
San AnIonlo. TX. 792ow797
nonsubstantive retadificetioaof prior lev. Acts 1977. 65th Leg., ch.
512l2254191
194. at 391. 558. Section 32.03 thereof oets out the qualifications
for permits, and mction 32.04 describes epplicationr therefor. Under
section 11.43. tlm Alcoholic Beverage Cosaission hs discretioosry
authority to grant or issue such permite; however. the c&sslou is
required by sec~.ion 11.41(e) to give due consideration to the
ret-ndations OC verious officiels of the locality for which the
license is #ought. Cf.
- V.A.P.C. arts. 666-11. 666-128 (repealed).
Section 11.41 tie) further provides:
p. 1598
.
honorable Jim Uaema - Page 2 (Jn-350)
If a protest agalnait the issuance of a permit is
made to the comi:e~~ion by any of these off leers
and it is found 011 a hearing or flndiog of facta
thet the isauancc~ of tha permit would be iu
conflict vith tbe provisions of this code, the
commission or admjnistrator shall enter an order
setting forth the ‘:sasona for refusal.
And section 11.41(b) reads:
(b) In the granting or withholding of a permit
to sell alcoholic lwverages at retail. the crrmnis-
sioa or administrst~or may give consideration to a
recoaaaendation x&a in vriting by the coavais-
sioners court of the county in which the applicant
proposes to condwt his business or by a repre-
sentative of the coumission.
Thus, personal appearances ar oral testimony at the hearing is not a
prerequisite to consideration by the Alcoholic Beverage Commission of
the official ~views of the county coaaaissioners court. Of course,
in-person sdvocacy may prove to be a more effective method of
persuasion.
The question of whether county funds may he properly expended to
better advocate the county’li position on such a question is not
directly governed by the Alcoholic Beverage Code, but by the statutes
and constitutional provisions appertaining to the powers of a county
coaaaisaioners court. The Teas Constitution provides, in article V,
section 18(b) :
The County Mraionero . . . with the County
Judge as preaidimg officer, shall cumpose the
County Commiasionere Court, which shall exercise
such powers and ‘iuriadiction over all county
business, as la cou?erred by this Constitution end
the laws of the 5tatei or aa msy be hereafter
prescribed. (Eaphiw;ia added).
Bowever~ the Alcoholic Bevera;ge Code (by requiring that the Alcoholic
Beverage Comnission give couaideration to the positions of local
officials) indirectly makes it clear that the matter of recomeanding
liquor permits for ostablia%nwnts In a county may properly be con-
sidered “county business.”
Although the legal baairr for any action by a county cmissioners
court must be ultimately fonld in the constitution or the statutes.
Canales v. Laughlin. 214 S.V.:!d 451. 453 (Tex. 1948). where a right is
conferred or obligations impwed on the couuaissioners court, it has a
1). 1599
Rooorable Jim Ueew - Pya 3 (JIG350)
broad discretion to accompl.ish the purposes intended. Anderson v.
wood. 1s2 s.u.2d 1084 (Tex. 1941).
We are aware of eo statute thet specifically luthoriaes a county
to incur travel related axpeases for the purpose of opposing a
proposed private club registxation pcnalt. We bellevc the provisioo
authorizing the Alcoholic Beverage Commission to consider the views of
county officers contemplatc,a au opportunity to present such views
affectively. If the comiasioners court of Bockley County, in good
faith, deems it to be lo the interest of the county to expend county
travel funds for the purpom of presenting those views in persoo or
through vitnessca, ve cancat say it is without power to do so.
V.T.C.S. arts. 2350. 61s: 2351. subdlv. 15; 3912k. See Attorney
General Opinion E-6gd (1976:‘. & Pritchard a Abbott v.~enna. 356
S.W.2d 333 (Tax. 1961).
SUWMABP
If a county colsaissionera wurt deems It to he
in the interest of the. county to do so, it nay
expend county tr,svel funds for the purpose of
opposing a* application for a private club
registration perdit pending before the Alcoholic
Beverage Comnissic~r~.
JLb
Very truly you
JIFI MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Garters1
DAVID R. RICBARDS
Executive Assistant Attorney General
ROBERTGRAY
Specisl Assistant Attorney General
RICE GILPIN
Chairman, Opinion Camsittee
Prepared by Bruce Youngblood
Assistant Attorney General
p. 1600
L
Honorable Jim Weema - PII* 4 (JIG350)
APPROVED:
OPINIONCONNITl’EE
Rick Gilpill, Chairman
Co1111 Carl
Sunna Gnrrirw
Tony Gulllory
Jim Moclllnngcr
Jennifer Riggs
Nnncy Suttoo
Sarah Uoclk
Bruce Youngblood
p. 1601