1-1 AN ACT
1-2 relating to the sale, possession, or consumption of alcoholic
1-3 beverages near a private or parochial school.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 101.75(a), Alcoholic Beverage Code, is
1-6 amended to read as follows:
1-7 (a) A person commits an offense if the person possesses an
1-8 open container or consumes an alcoholic beverage on a public
1-9 street, public alley, or public sidewalk within 1,000 feet of the
1-10 property line of a facility that is a public or private school,
1-11 including a parochial school, that provides all or any part of
1-12 prekindergarten [kindergarten] through twelfth grade.
1-13 SECTION 2. Section 109.33, Alcoholic Beverage Code, is
1-14 amended to read as follows:
1-15 Sec. 109.33. SALES NEAR SCHOOL, CHURCH, OR HOSPITAL. (a)
1-16 The commissioners court of a county may enact regulations
1-17 applicable in areas in the county outside an incorporated city or
1-18 town, and the governing board of an incorporated city or town may
1-19 enact regulations applicable in the city or town, prohibiting the
1-20 sale of alcoholic beverages by a dealer whose place of business is
1-21 within:
1-22 (1) 300 feet of a church, public or private school, or
1-23 public hospital; [or]
1-24 (2) 1,000 feet of a public school, if the
2-1 commissioners court or the governing body receives a request from
2-2 the board of trustees of a school district under Section 38.007,
2-3 Education Code; or
2-4 (3) 1,000 feet of a private school if the
2-5 commissioners court or the governing body receives a request from
2-6 the governing body of the private school.
2-7 (b) The measurement of the distance between the place of
2-8 business where alcoholic beverages are sold and the church or
2-9 public hospital shall be along the property lines of the street
2-10 fronts and from front door to front door, and in direct line across
2-11 intersections. The measurement of the distance between the place
2-12 of business where alcoholic beverages are sold and the public or
2-13 private school [schools] shall be:
2-14 (1) in a direct line from the property line of the
2-15 public or private school to the property line of the place of
2-16 business, and in a direct line across intersections; or
2-17 (2) if the permit or license holder is located on or
2-18 above the fifth story of a multistory building, in a direct line
2-19 from the property line of the public or private school to the
2-20 property line of the place of business, in a direct line across
2-21 intersections, and vertically up the building at the property line
2-22 to the base of the floor on which the permit or license holder is
2-23 located.
2-24 (c) Every applicant for an original alcoholic beverage
2-25 license or permit for a location with a door by which the public
2-26 may enter the place of business of the applicant that is within
2-27 1,000 feet of the nearest property line of a public or private
3-1 school, measured along street lines and directly across
3-2 intersections, must give written notice of the application to
3-3 officials of the public or private school before filing the
3-4 application with the commission. A copy of the notice must be
3-5 submitted to the commission with the application. This subsection
3-6 [Subsection (c)] does not apply to a permit or license covering a
3-7 premise where minors are prohibited from entering the premises
3-8 under Section 109.53.
3-9 (d) As to any dealer who held a license or permit on
3-10 September 1, 1983, in a location where a regulation under this
3-11 section was in effect on that date, for purposes of Subsection (a),
3-12 but not Subsection (c), of this section, the measurement of the
3-13 distance between the place of business of the dealer and a public
3-14 or private school shall be along the property lines of the street
3-15 fronts and from front door to front door, and in direct line across
3-16 intersections.
3-17 (e) The commissioners court of a county or the governing
3-18 board of a city or town that has enacted a regulation under
3-19 Subsection (a) of this section may also allow variances to the
3-20 regulation if the commissioners court or governing body determines
3-21 that enforcement of the regulation in a particular instance is not
3-22 in the best interest of the public, constitutes waste or
3-23 inefficient use of land or other resources, creates an undue
3-24 hardship on an applicant for a license or permit, does not serve
3-25 its intended purpose, is not effective or necessary, or for any
3-26 other reason the court or governing board, after consideration of
3-27 the health, safety, and welfare of the public and the equities of
4-1 the situation, determines is in the best interest of the community.
4-2 (f) Subsections [Subsection] (a)(2) and (3) do [does] not
4-3 apply to the holder of:
4-4 (1) a retail on-premises consumption permit or license
4-5 if less than 50 percent of the gross receipts for the premises is
4-6 from the sale or service of alcoholic beverages;
4-7 (2) a retail off-premises consumption permit or
4-8 license if less than 50 percent of the gross receipts for the
4-9 premises, excluding the sale of items subject to the motor fuels
4-10 tax, is from the sale or service of alcoholic beverages; or
4-11 (3) a wholesaler's, distributor's, brewer's,
4-12 distiller's and rectifier's, winery, wine bottler's or
4-13 manufacturer's permit or license, or any other license or permit
4-14 held by a wholesaler or manufacturer as those words are ordinarily
4-15 used and understood in Chapter 102.
4-16 (g) Subsection (a)(3) does not apply to the holder of:
4-17 (1) a license or permit issued under Chapter 27, 31,
4-18 or 72 who is operating on the premises of a private school; or
4-19 (2) a license or permit covering a premise where
4-20 minors are prohibited from entering under Section 109.53 and that
4-21 is located within 1,000 feet of a private school.
4-22 (h) Subsection (a)(1) does not apply to the holder of:
4-23 (1) a license or permit who also holds a food and
4-24 beverage certificate covering a premise that is located within 300
4-25 feet of a private school; or
4-26 (2) a license or permit covering a premise where
4-27 minors are prohibited from entering under Section 109.53 and that
5-1 is located within 300 feet of a private school.
5-2 (i) In this section, "private school" means a private
5-3 school, including a parochial school, that:
5-4 (1) offers a course of instruction for students in one
5-5 or more grades from kindergarten through grade 12; and
5-6 (2) has more than 100 students enrolled and attending
5-7 courses at a single location.
5-8 SECTION 3. The purpose of Section 1 of this Act in amending
5-9 Section 101.75(a), Alcoholic Beverage Code, to specifically
5-10 identify a parochial school in the list of places where a person is
5-11 prohibited from possessing an open container or consuming an
5-12 alcoholic beverage is to clarify the intent of the legislature with
5-13 respect to the effect of Section 101.75(a), Alcoholic Beverage
5-14 Code, as that section existed immediately before the effective date
5-15 of this Act.
5-16 SECTION 4. (a) The change in law made by Section 101.75(a),
5-17 Alcoholic Beverage Code, as amended by this Act, applies only to an
5-18 offense committed on or after the effective date of this Act. For
5-19 purposes of this section, an offense is committed before the
5-20 effective date of this Act if any element of the offense occurs
5-21 before the effective date.
5-22 (b) An offense committed before the effective date of this
5-23 Act is covered by the law in effect when the offense was committed,
5-24 and the former law is continued in effect for that purpose.
5-25 SECTION 5. This Act takes effect immediately if it receives
5-26 a vote of two-thirds of all the members elected to each house, as
5-27 provided by Section 39, Article III, Texas Constitution. If this
6-1 Act does not receive the vote necessary for immediate effect, this
6-2 Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 688 was passed by the House on April
23, 2001, by the following vote: Yeas 147, Nays 0, 1 present, not
voting.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 688 was passed by the Senate on May
15, 2001, by the following vote: Yeas 29, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor