Could a Texas city or county adopt its own ban on open containers of alcohol in motor vehicles?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-112: Local Open-Container Bans and State Preemption
Plain-English summary
JM-112 concluded that a Texas city or county could not adopt its own ban on possessing an open container of alcohol in a motor vehicle. Alcoholic Beverage Code section 1.06 made the code the exclusive law governing alcoholic-beverage possession unless the code specifically provided otherwise.
"We conclude that the preemption provisions of the Texas Alcoholic Beverage Code preclude such an order or ordinance."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
The opinion rejected reliance on a city's general health-and-welfare authority because a city charter or ordinance could not conflict with the Constitution or general state laws.
"[N]o charter or any ordinances passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
It also rejected the argument that county power to regulate traffic on county roads and county property supplied authority for an open-container rule. The opinion found no specific authorization in the alcohol laws.
"The commissioners court of any county may regulate and restrict traffic on county roads and on other county-owned land under its jurisdiction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf"Based on the Royer case, we conclude that the legislature has not authorized cities and counties to adopt an open container ordinance."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG 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.
Common questions
Did JM-112 say open containers were lawful under state law?
No. It answered only whether cities and counties could create their own prohibition. The holding was that local governments lacked authority because state law exclusively governed possession.
"We believe that this preemption provision is very clear and simply precludes a city or county from enacting a local ordinance banning the possession of alcoholic beverages in automobiles."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Could a city's general police power support the ordinance?
No. The opinion applied the constitutional rule that local ordinances could not be inconsistent with general state law.
"In your brief you assert that a city would have such authority under their general grant of power to pass ordinances for the public health and welfare subject to the constitutional provision."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Could county traffic-regulation authority support the ban?
No. Although the county road and bridge act allowed regulation of traffic on county roads and county-owned land, JM-112 found that the Alcoholic Beverage Code's exclusive control still barred the proposed alcohol-possession rule.
"This section also requires a public hearing before the adoption of traffic regulations and specifically authorizes the commissioners court to adopt speed limits, load limits, and a system of traffic controlled devices."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Did the Alcoholic Beverage Code allow any local alcohol regulation?
Yes, in specified areas. The opinion listed local fees, residential sales restrictions, distance restrictions near churches and schools, beer sales regulation, and mixed-beverage hours, but treated unlisted powers as withheld.
"The court recognized five 'distinct' areas of municipal regulatory authority over alcoholic beverages: (1) the assessment for local fees, (2) prohibiting sales in residential sections, (3) prohibiting sales near churches and schools, (4) regulating the sale of beer within the city limits, and (5) adopting hours for the sale of mixed beverages."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Background and legal framework
The request asked whether a city council could enact an ordinance, or a commissioners court could enter an order, banning open alcoholic-beverage containers in motor vehicles.
"You have requested our opinion as to whether a municipality or a county may ban the possession of open containers of alcoholic beverages in motor vehicles through an ordinance adopted by the city council or an order adopted by the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
The opinion relied on an earlier decision invalidating a Beaumont ordinance that extended package-store closing times beyond those in state law. That decision treated the Legislature's specified grants of local power as excluding unlisted local regulation.
"The Legislature, by granting to the cities power of control in five instances above set forth, has . . . denied this power in any instance not specified."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf"If the Legislature had intended for the City Council to have the authority to extend the time of closing or opening of package stores from the state provision, it could have said so."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Holding
"A city or county is prohibited from adopting a local ordinance banning the possession of open containers of alcoholic beverages in motor vehicles."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0112
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0112.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 30, 1983
Honorable Mike Westergren
Nueces County Attorney
Room 206, Nueces County Courthouse
Corpus Christi, Texas 78401
Opinion No. JM-112
Re: Authority of a county or city to promulgate ordinances banning open containers of alcoholic beverages in motor vehicles
Dear Mr. Westergren:
You have requested our opinion as to whether a municipality or a county may ban the possession of open containers of alcoholic beverages in motor vehicles through an ordinance adopted by the city council or an order adopted by the commissioners court. We conclude that the preemption provisions of the Texas Alcoholic Beverage Code preclude such an order or ordinance.
Section 1.06 of the code provides in full as follows:
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.
We believe that this preemption provision is very clear and simply precludes a city or county from enacting a local ordinance banning the possession of alcoholic beverages in automobiles.
In your brief you assert that a city would have such authority under their general grant of power to pass ordinances for the public health and welfare subject to the constitutional provision that
[N]o charter or any ordinances passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State;
Tex. Const. art. XI, § 5. See also V.T.C.S. art. 1165. With regard to counties you propose that a commissioners court order banning open containers would be authorized by provisions of the newly codified "county road and bridge act," Acts 1983, 68th Leg., ch. 288, at 1431, to be codified as article 6702-1, section 2.301(a)(1), which provides as follows:
The commissioners court of any county may regulate and restrict traffic on county roads and on other county-owned land under its jurisdiction.
This section also requires a public hearing before the adoption of traffic regulations and specifically authorizes the commissioners court to adopt speed limits, load limits, and a system of traffic controlled devices.
In the case of Royer v. Ritter, 531 S.W.2d 440, 449 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.), the court held that a local ordinance passed by a city and which regulated the hours of sale for liquor package stores conflicted with the predecessor Liquor Control Act. The local ordinance prohibited the opening of a package store on days and at times not prohibited by state law. The court recognized five "distinct" areas of municipal regulatory authority over alcoholic beverages: (1) the assessment for local fees, (2) prohibiting sales in residential sections, (3) prohibiting sales near churches and schools, (4) regulating the sale of beer within the city limits, and (5) adopting hours for the sale of mixed beverages. See Alcoholic Beverage Code §§ 11.38; 105.03; 109.31-.33. The court held that the ordinance in question was unauthorized by the state liquor laws and was inconsistent therewith. The court stated the following:
The Legislature, by granting to the cities power of control in five instances above set forth, has . . . denied this power in any instance not specified. There is no authority in the Texas Liquor Control Act for the Ordinance under review.
Furthermore, this Ordinance is inconsistent with the Act. It is true that the Legislature stated when package stores are not to be open, rather than the converse. But this is merely one way of stating when they may be open. When the Beaumont Ordinance adds to the times they must be closed, the Ordinance is inconsistent with the statute.
. . . .
If the Legislature had intended for the City Council to have the authority to extend the time of closing or opening of package stores from the state provision, it could have said so. Having failed to do so, we believe they intended the provision for closing in the act to be statewide and exclusive.
Royer v. Ritter, supra, at 449-50. Based on the Royer case, we conclude that the legislature has not authorized cities and counties to adopt an open container ordinance.
SUMMARY
A city or county is prohibited from adopting a local ordinance banning the possession of open containers of alcoholic beverages in motor vehicles.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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