Can a small Texas city ban alcohol sales near a public school?

Plain-English summary

Representative Sid Miller, then chairing the House Committee on Homeland Security and Public Safety, asked the Attorney General whether a Type A general-law city with a population under 900,000 could pass an ordinance creating an "Alcohol-Free School Zone" around a public school, either a 300-foot zone or a 1,000-foot zone, in which off-premises alcohol sales would be banned.

The opinion started from two background rules. First, a general-law city is a creature of the State and has only the powers the State expressly hands it. Second, a city cannot regulate alcohol sales at all except as the Alcoholic Beverage Code permits, because that code is meant to "exclusively govern" alcohol regulation in Texas, and courts have held it preempts most local ordinances about where alcohol is sold.

So the question came down to what the Alcoholic Beverage Code allows. Section 109.33(a) lets a city's governing body prohibit alcohol sales by a dealer within 300 feet of a church, public or private school, or public hospital. For the 300-foot zone around a public school, the answer was yes: the statute generally authorizes that ordinance, and nothing in it depends on city size.

The 1,000-foot zone was a different matter. Section 109.33(a)(2) authorizes a 1,000-foot ban around a public school only if the city "receives a request from the board of trustees of a school district under Section 38.007, Education Code." And Education Code section 38.007(b) gives a school board the power to petition for a 1,000-foot zone only when a majority of the district sits in a municipality with a population of 900,000 or more. Reading those together, the opinion concluded the Legislature had not authorized a city below that population, absent such a petition, to enact a 1,000-foot ban. A footnote also flagged section 109.59(a), under which a permitted premises that satisfied distance rules when first licensed is deemed to keep satisfying them at renewal, a point relevant to questions in the request about preexisting stores.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas House (as the opinion described it): The opinion answered Representative Miller's question by distinguishing the two zones: a 300-foot public-school alcohol ban was generally within a Type A city's authority under section 109.33(a), while a 1,000-foot ban was not available to a city under 900,000 population absent a qualifying school-district petition under Education Code section 38.007(b).

City governing bodies (as the opinion described it): The opinion read the Alcoholic Beverage Code as the exclusive source of a city's power to regulate where alcohol is sold, so a city could adopt the 300-foot ordinance but lacked authority for the 1,000-foot ordinance unless it received the statutory petition tied to a 900,000-plus municipality.

Alcohol dealers and stores (as the opinion described it): The opinion addressed which ordinances a city may enact, and a footnote noted section 109.59(a), under which a premises that met the distance requirements when its permit was first granted is deemed to satisfy them on later renewals.

Common questions

Can a Texas city ban liquor sales within 300 feet of a public school?
According to the opinion, a Type A general-law city is generally authorized to do so under Alcoholic Beverage Code section 109.33(a), which covers a dealer's place of business within 300 feet of a church, public or private school, or public hospital.

What about a 1,000-foot ban?
The opinion concluded a 1,000-foot ban around a public school requires the city to receive a petition from a school district that, under Education Code section 38.007(b), is principally located in a municipality of 900,000 or more people. A smaller city without such a petition was not authorized to enact it.

Why can't a small city just pass the 1,000-foot rule on its own?
Because the opinion treated the Alcoholic Beverage Code as the exclusive grant of authority, and that code conditioned the 1,000-foot zone on the section 38.007 petition. Without the statutory authorization, the city lacked the power.

What happens to a store that was already there before the zone?
A footnote in the opinion pointed to section 109.59(a): if a premises satisfied the distance requirements when its permit or license was originally granted, it is deemed to satisfy them for later renewals. The opinion did not apply that rule to specific stores because it lacked their details.

Background and statutory framework

General-law municipalities possess only the powers the State expressly confers. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). A municipality may not regulate alcohol sales except as the Alcoholic Beverage Code permits, because the Legislature intended that code to "exclusively govern the regulation of alcoholic beverages in this state." Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (West Supp. 2011); see Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490 (Tex. 1993).

Section 109.33(a) authorizes a city's governing body to prohibit alcohol sales by a dealer within 300 feet of a church, public or private school, or public hospital, and, on a qualifying request, within 1,000 feet of a public school. Tex. Alco. Bev. Code Ann. § 109.33(a), (a)(1), (a)(2) (West 2007). The 1,000-foot trigger runs through Education Code section 38.007, titled "Alcohol-Free School Zones," whose subsection (b) lets a school board petition for a 1,000-foot zone only when a majority of the district lies in a municipality of 900,000 or more. Tex. Educ. Code Ann. § 38.007, (b) (West 2006). The opinion also referenced section 101.75(a), which criminalizes open containers and consumption within 1,000 feet of a school, and section 109.59(a), the renewal grandfather provision. Tex. Alco. Bev. Code Ann. § 101.75(a), § 109.59(a) (West 2007).

Citations

Cases:

• Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490 (Tex. 1993)

Statutes:

• Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (West Supp. 2011)
• Tex. Alco. Bev. Code Ann. § 109.33(a) (West 2007)
• Tex. Alco. Bev. Code Ann. § 109.33(a)(1)
• Tex. Alco. Bev. Code Ann. § 109.33(a)(2)
• Tex. Alco. Bev. Code Ann. § 109.59(a) (West 2007)
• Tex. Alco. Bev. Code Ann. § 101.75(a) (West 2007)
• Tex. Educ. Code Ann. § 38.007 (West 2006)
• Tex. Educ. Code Ann. § 38.007(b) (West 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0942
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0942.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 30, 2012

The Honorable Sid Miller Opinion No. GA-0942
Chair, Committee on Homeland Security
and Public Safety Re: Authority of a Type A general-law municipality
Texas House of Representatives with a population of less than 900,000 to enact an
Post Office Box 2910 ordinance setting either a 300-foot "Alcohol-Free
Austin, Texas 78768-2910 School Zone" or a 1,000-foot zone around a school in
which the sale of alcoholic beverages for off-premises
consumption would be prohibited (RQ-1028-GA)

Dear Representative Miller:

You ask about the authority of a Type A general-law municipality to enact an ordinance setting either a 300-foot "Alcohol-Free School Zone" or a 1,000-foot zone around a school in which the sale of alcoholic beverages for off-premises consumption would be prohibited. We understand that your question concerns a public school located in a general-law municipality with a population of less than 900,000.[1] See Attachment to Request Letter.

General-law municipalities are political subdivisions created by the State and, as such, possess only those powers that the State expressly confers upon them. See Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). Moreover, a municipality does not have the authority to regulate the sale of alcoholic beverages except as permitted by the Alcoholic Beverage Code. See TEX. ALCO. BEV. CODE ANN. § 109.57(a)-(b) (West Supp. 2011) (stating that the Legislature intends that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state"); see also Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490 (Tex. 1993) (holding that "[s]ection 109.57 clearly preempts an ordinance of a ... city that regulates where alcoholic beverages are sold under most circumstances"). For example, in section 109.33(a) of the Alcoholic Beverage Code, the Legislature granted municipalities the authority to regulate the sale of alcoholic beverages under the following circumstances:

the governing board of an incorporated city or town may enact regulations applicable in the city or town, prohibiting the sale of alcoholic beverages by a dealer whose place of business is within:
(1) 300 feet of a church, public or private school, or public hospital;
(2) 1,000 feet of a public school, if the commissioners court or the governing body receives a request from the board of trustees of a school district under Section 38.007, Education Code; or
(3) 1,000 feet of a private school if the commissioners court or the governing body receives a request from the governing body of the private school.

TEX. ALCO. BEV. CODE ANN. § 109.33(a) (West 2007). Thus, subsection (a)(1) generally authorizes a municipal governing body to enact regulations prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a public school. Id. § 109.33(a)(1).[2] Further, under subsection (a)(2), a municipal governing body is generally authorized to prohibit such sales within 1,000 feet of a public school, provided it "receives a request from the board of trustees of a school district under Section 38.007, Education Code." Id. § 109.33(a)(2).

Section 38.007 of the Education Code is entitled "Alcohol-Free School Zones." TEX. EDUC. CODE ANN. § 38.007 (West 2006). It provides in part:

The board of trustees of a school district shall attempt to provide a safe alcohol-free environment to students coming to or going from school. The board of trustees may cooperate with local law enforcement officials and the Texas Alcoholic Beverage Commission in attempting to provide this environment and in enforcing Sections 101.75, 109.33, and 109.59, Alcoholic Beverage Code. Additionally, the board, if a majority of the area of a district is located in a municipality with a population of 900,000 or more, may petition the commissioners court of the county in which the district is located or the governing board of an incorporated city or town in which the district is located to adopt a 1,000-foot zone under Section 109.33, Alcoholic Beverage Code.

Id. § 38.007(b) (emphasis added).[3] Section 38.007(b) of the Education Code thus grants the authority to petition the municipal governing board to adopt a 1,000-foot alcohol-free zone only to a board in a district located in a municipality with a population 900,000 or more. Id. The Legislature has not authorized a school board of a district in a municipality of less than 900,000 persons to petition for an ordinance that prohibits the sale of alcoholic beverages by a dealer whose place of business is within 1,000 feet of a public school. The governing board of a municipality lacks authority under section 109.33 of the Alcoholic Beverage Code to enact an ordinance prohibiting sales of alcohol within 1,000 feet of a public school unless it receives a petition to enact such an ordinance from a school district that is principally located in a municipality of 900,000 persons or more.

SUMMARY

The governing body of a Type A general-law municipality is generally authorized to enact an ordinance prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a public school. The Legislature has not authorized a municipality to enact an ordinance prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 1,000 feet of a public school unless the municipality receives a petition to enact such an ordinance from a school district that is principally located in a municipality of 900,000 persons or more.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Sid Miller, Chair, Comm. on Homeland Security & Pub. Safety, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 13, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter" and "Attachment").

[2] Correspondence attached to your request letter inquires about the applicability of an ordinance establishing a 300-foot zone under section 109.33(a) to certain preexisting "stores." See Attachment to Request Letter. While we are not in possession of any specific details about the stores, we note the potential applicability of section 109.59(a) of the Texas Alcoholic Beverage Code, which provides:

If at the time an original alcoholic beverage permit or license is granted for a premises the premises satisfies the requirements regarding distance from schools, churches, and other types of premises established in this code and any other law or ordinance of the state or a political subdivision of the state in effect at that time, the premises shall be deemed to satisfy the distance requirements for all subsequent renewals of the license or permit.

TEX. ALCO. BEV. CODE ANN. § 109.59(a) (West 2007).

[3] One of the referenced statutes, section 101.75 of the Alcoholic Beverage Code, makes it a criminal offense to possess an open container or consume "an alcoholic beverage on a public street, public alley, or public sidewalk within 1,000 feet of ... a public or private school." TEX. ALCO. BEV. CODE ANN. § 101.75(a) (West 2007); see also TEX. EDUC. CODE ANN. § 38.007(b) (West 2006).