Can my Texas city ban alcohol sales within 1,000 feet of a public school?

Plain-English summary

A Texas home-rule city (a city with its own charter, generally one over 5,000 people) draws its powers from the Texas Constitution rather than from the Legislature. But the Legislature can still fence off areas where home-rule cities may not act. Alcohol regulation is one of those areas. The Alcoholic Beverage Code says it "shall exclusively govern the regulation of alcoholic beverages in this state," and the Texas Supreme Court has held that the code preempts a home-rule city's ordinances about where alcohol may be sold. So a home-rule city's power to limit where alcohol is sold has to be found inside the Alcoholic Beverage Code itself.

The Navarro County Criminal District Attorney asked whether a home-rule city of fewer than 900,000 people could pass an ordinance banning alcohol sales within 1,000 feet of a public school. The Attorney General said no, not on the city's own initiative.

The code gives cities two distance tools. Section 109.33(a)(1) lets a city's governing body ban alcohol sales by a dealer whose place of business is within 300 feet of a public school. Section 109.33(a)(2) lets the city extend that ban to 1,000 feet, but only "if ... the governing body receives a request from the board of trustees of a school district under Section 38.007, Education Code." That cross-reference is the catch. Education Code section 38.007(b) authorizes a school board to petition for a 1,000-foot zone only if a majority of the area of the district is located in a municipality with a population of 900,000 or more.

Putting those pieces together, the opinion reasoned that a school district may request a 1,000-foot zone only when it is principally located in a large municipality (900,000 or more), and a school district's authority is limited to what statutes expressly grant or necessarily imply. Without a qualifying request from such a school board, a city, including a home-rule city, has no authority under section 109.33(a)(2) to ban alcohol sales within 1,000 feet of a public school. The 300-foot option under section 109.33(a)(1) remains available, but the 1,000-foot ban does not exist for a city absent the school-board request the statute requires.

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

Home-rule cities under 900,000 (as the opinion described it): The opinion read the Alcoholic Beverage Code to preempt independent home-rule action on where alcohol is sold, and it found no authority for a city of that size to adopt a 1,000-foot school ban without the school-board request section 109.33(a)(2) requires.

School districts (as the opinion described it): The opinion treated the school-board request as the trigger for a 1,000-foot zone, but noted that a board may make that request under section 38.007(b) only if a majority of the district lies in a municipality of 900,000 or more.

Alcohol retailers near schools (as the opinion described it): The opinion identified the 300-foot ban under section 109.33(a)(1) as available to cities generally, while the broader 1,000-foot ban depends on the qualifying school-board request.

Common questions

Can a smaller Texas city ban alcohol sales 1,000 feet from a school on its own?
No, as the opinion read the statute. The 1,000-foot ban under section 109.33(a)(2) requires the city to first receive a request from a qualifying school board, and a board can make that request only if a majority of the district sits in a municipality of 900,000 or more.

What distance can a city regulate without a school-board request?
Up to 300 feet. Section 109.33(a)(1) lets a city's governing body prohibit sales by a dealer whose place of business is within 300 feet of a public school.

Why can't the home-rule charter alone support the ban?
Because the Alcoholic Beverage Code exclusively governs alcohol regulation and preempts home-rule ordinances about where alcohol is sold. A city's authority must be found in the code, which conditions the 1,000-foot ban on the school-board request.

Does the 900,000 population figure refer to the city or the school district?
It refers to the municipality where a majority of the school district's area is located. A board may petition for a 1,000-foot zone only if that municipality has 900,000 or more people.

Background and statutory framework

Home-rule cities derive their powers from article XI, section 5 of the Texas Constitution, but the Legislature may expressly or implicitly limit their ordinance-making authority. The Alcoholic Beverage Code section 109.57(b) makes the code the exclusive governor of alcohol regulation, and section 109.57(a) limits governmental entities from imposing stricter standards on licensed premises than on similar unlicensed ones. Section 109.33 sets the school-distance rules: subsection (a)(1) authorizes a 300-foot ban, and subsection (a)(2) authorizes a 1,000-foot ban only on a school-board request under Education Code section 38.007. Section 38.007(b) lets a school board petition for a 1,000-foot zone only if a majority of the district is in a municipality of 900,000 or more.

The opinion relied on City of Galveston v. State (home-rule power comes from the constitution) and Lower Colorado River Authority v. City of San Marcos (the Legislature may limit it), on Dallas Merchants & Concessionaire's Ass'n v. City of Dallas (the code preempts home-rule ordinances on where alcohol is sold), and on Mesquite Independent School District v. Gross (school-district authority is limited to express or necessarily implied powers). It also drew on its recent opinion GA-0942 (2012) about municipal distance requirements under section 109.33.

Citations

Cases:

• City of Galveston v. State, 217 S.W.3d 466, 469 & n.8 (Tex. 2007)
• Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646-47 (Tex. 1975)
• Dallas Merchs. & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 492 (Tex. 1993)
• Mesquite Indep. Sch. Dist. v. Gross, 67 S.W.2d 242, 245 (Tex. 1934)

Statutes:

• Tex. Alco. Bev. Code Ann. § 109.57(a), (b) (West Supp. 2011)
• Tex. Alco. Bev. Code Ann. § 109.33, 109.33(a)(1), 109.33(a)(2) (West 2007)
• Tex. Educ. Code Ann. § 38.007(b) (West 2006)
• Tex. Const. art. XI, § 5

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0942 (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0962
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0962.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

August 17, 2012

The Honorable R. Lowell Thompson Opinion No. GA-0962
Navarro County Criminal District Attorney
300 West 3rd Avenue, Suite 203 Re: Whether section 38.007 of the Texas Education
Corsicana, Texas 75110 Code, section 109.33 of the Texas Alcoholic Beverage
Code, and the home-rule provision of the Texas
Constitution authorize a home-rule municipality with
a population of less than 900,000 to enact an
ordinance prohibiting the sale of alcoholic beverages
within 1,000 feet of a public school (RQ-1057-GA)

Dear Mr. Thompson:

You ask whether section 38.007 of the Texas Education Code, section 109.33 of the Texas Alcoholic Beverage Code, and the home-rule provision of the Texas Constitution authorize a home-rule municipality with a population of less than 900,000 to enact an ordinance prohibiting the sale of alcoholic beverages within 1,000 feet of a public school.[1]

Home-rule municipalities derive their powers from the home-rule provision of the Texas Constitution, not from the Legislature. City of Galveston v. State, 217 S.W.3d 466, 469 & n.8 (Tex. 2007) (citing TEX. CONST. art. XI, § 5). However, the Legislature may expressly or implicitly limit a home-rule municipality's authority to promulgate particular kinds of ordinances. Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646-47 (Tex. 1975). The Legislature has enacted a general limitation with respect to the regulation of alcoholic beverages, clearly stating that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state." TEX. ALCO. BEV. CODE ANN. § 109.57(b) (West Supp. 2011). In addition to this general limitation, the code also specifically limits the authority of governmental entities, such as home-rule municipalities, to regulate alcoholic beverages. See id. § 109.57(a) (stating that "[e]xcept 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 businesses that are not required to have such a license or permit"). The Supreme Court of Texas has explained that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold under most circumstances." Dallas Merchs. & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 492 (Tex. 1993). Consequently, a home-rule city's authority to regulate where alcoholic beverages may be sold must be found in the Alcoholic Beverage Code. See id. at 492-94.

We recently examined municipal authority to promulgate certain distance requirements under section 109.33 of the Alcoholic Beverage Code. Tex. Att'y Gen. Op. No. GA-0942 (2012); TEX. ALCO. BEV. CODE ANN. § 109.33 (West 2007). 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. TEX. ALCO. BEV. CODE ANN. § 109.33(a)(1) (West 2007). Subsection (a)(2) generally grants a municipal governing body authority to prohibit such sales within 1,000 feet of a public school "if ... the governing body receives a request from the board of trustees of a school district under Section 38.007, Education Code." Id. § 109.33(a)(2). The Alcoholic Beverage Code does not authorize a municipality, including a home-rule municipality, to enact an ordinance prohibiting such sales within a 1,000-foot zone under any other circumstances. See id.

Section 38.007 of the Education Code directs school districts to "attempt to provide a safe alcohol-free environment to students coming to or going from school." TEX. EDUC. CODE ANN. § 38.007(b) (West 2006). Section 38.007(b) authorizes a school district to cooperate in the enforcement of a criminal statute prohibiting the consumption of alcohol or possession of open containers within 1,000 feet of a public or private school, as well as distance restrictions in section 109.33(a)(2) of the Alcoholic Beverage Code. Id. Subsection 38.007(b) continues:

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. (emphasis added).

School district authority is limited to powers expressly granted or necessarily implied. See Mesquite Indep. Sch. Dist. v. Gross, 67 S.W.2d 242, 245 (Tex. 1934). No statute authorizes a school district to request a 1,000-foot zone under section 109.33 of the Alcoholic Beverage Code, unless "a majority of the area of a district is located in a municipality with a population of 900,000 or more." TEX. EDUC. CODE ANN. § 38.007(b) (West 2006). And without a request from such a school district, a municipality, including a home-rule municipality, does not have the authority to enact an ordinance prohibiting the sale of alcoholic beverages within 1,000 feet of a public school under section 109.33(a)(2) of the Alcoholic Beverage Code. See id.; TEX. ALCO. BEV. CODE ANN. § 109.33(a)(2) (West 2007).

SUMMARY

The Texas Alcoholic Beverage Code does not authorize a home-rule 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 has received a petition from a school board of a district principally located in a municipality with a population of 900,000 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 R. Lowell Thompson, Navarro Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Apr. 23, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").