77R10429 MCK-D                           
         By Woolley, Crabb, Coleman, et al.                     H.B. No. 688
         Substitute the following for H.B. No. 688:
         By Yarbrough                                       C.S.H.B. No. 688
                                A BILL TO BE ENTITLED
 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                 (4)  a license or permit issued under Chapter 27, 31,
4-17     or 72 who is operating on the premises of a private school; or
4-18                 (5)  a license or permit covering a premise where
4-19     minors are prohibited from entering under Section 109.53 and that
4-20     is located within 1,000 feet of a private school.
4-21           (g)  Subsection (a)(1) does not apply to the holder of:
4-22                 (1)  a license or permit who also holds a food and
4-23     beverage certificate covering a premise that is located within 300
4-24     feet of a private school; or
4-25                 (2)  a license or permit covering a premise where
4-26     minors are prohibited from entering under Section 109.53 and that
4-27     is located within 300 feet of a private school.
 5-1           (h)  In this section, "private school" means a private
 5-2     school, including a parochial school, that:
 5-3                 (1)  offers a course of instruction for students in one
 5-4     or more grades from kindergarten through grade 12; and
 5-5                 (2)  has more than 100 students enrolled and attending
 5-6     courses at a single location.
 5-7           SECTION 3.  The purpose of Section 1 of this Act in amending
 5-8     Section 101.75(a), Alcoholic Beverage Code, to specifically
 5-9     identify a parochial school in the list of places where a person is
5-10     prohibited from possessing an open container or consuming an
5-11     alcoholic beverage is to clarify the intent of the legislature with
5-12     respect to the effect of Section 101.75(a), Alcoholic Beverage
5-13     Code, as that section existed immediately before the effective date
5-14     of this Act.
5-15           SECTION 4. (a)  The change in law made by Section 101.75(a),
5-16     Alcoholic Beverage Code, as amended by this Act, applies only to an
5-17     offense committed on or after the effective date of this Act.  For
5-18     purposes of this section, an offense is committed before the
5-19     effective date of this Act if any element of the offense occurs
5-20     before the effective date.
5-21           (b)  An offense committed before the effective date of this
5-22     Act is covered by the law in effect when the offense was committed,
5-23     and the former law is continued in effect for that purpose.
5-24           SECTION 5.  This Act takes effect immediately if it receives
5-25     a vote of two-thirds of all the members elected to each house, as
5-26     provided by Section 39, Article III, Texas Constitution.  If this
5-27     Act does not receive the vote necessary for immediate effect, this
 6-1     Act takes effect September 1, 2001.