1-1 By: Woolley, et al. (Senate Sponsor - Whitmire) H.B. No. 688
1-2 (In the Senate - Received from the House April 24, 2001;
1-3 April 25, 2001, read first time and referred to Committee on
1-4 Business and Commerce; May 7, 2001, reported favorably by the
1-5 following vote: Yeas 7, Nays 0; May 7, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the sale, possession, or consumption of alcoholic
1-9 beverages near a private or parochial school.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 101.75(a), Alcoholic Beverage Code, is
1-12 amended to read as follows:
1-13 (a) A person commits an offense if the person possesses an
1-14 open container or consumes an alcoholic beverage on a public
1-15 street, public alley, or public sidewalk within 1,000 feet of the
1-16 property line of a facility that is a public or private school,
1-17 including a parochial school, that provides all or any part of
1-18 prekindergarten [kindergarten] through twelfth grade.
1-19 SECTION 2. Section 109.33, Alcoholic Beverage Code, is
1-20 amended to read as follows:
1-21 Sec. 109.33. SALES NEAR SCHOOL, CHURCH, OR HOSPITAL. (a)
1-22 The commissioners court of a county may enact regulations
1-23 applicable in areas in the county outside an incorporated city or
1-24 town, and the governing board of an incorporated city or town may
1-25 enact regulations applicable in the city or town, prohibiting the
1-26 sale of alcoholic beverages by a dealer whose place of business is
1-27 within:
1-28 (1) 300 feet of a church, public or private school, or
1-29 public hospital; [or]
1-30 (2) 1,000 feet of a public school, if the
1-31 commissioners court or the governing body receives a request from
1-32 the board of trustees of a school district under Section 38.007,
1-33 Education Code; or
1-34 (3) 1,000 feet of a private school if the
1-35 commissioners court or the governing body receives a request from
1-36 the governing body of the private school.
1-37 (b) The measurement of the distance between the place of
1-38 business where alcoholic beverages are sold and the church or
1-39 public hospital shall be along the property lines of the street
1-40 fronts and from front door to front door, and in direct line across
1-41 intersections. The measurement of the distance between the place
1-42 of business where alcoholic beverages are sold and the public or
1-43 private school [schools] shall be:
1-44 (1) in a direct line from the property line of the
1-45 public or private school to the property line of the place of
1-46 business, and in a direct line across intersections; or
1-47 (2) if the permit or license holder is located on or
1-48 above the fifth story of a multistory building, in a direct line
1-49 from the property line of the public or private school to the
1-50 property line of the place of business, in a direct line across
1-51 intersections, and vertically up the building at the property line
1-52 to the base of the floor on which the permit or license holder is
1-53 located.
1-54 (c) Every applicant for an original alcoholic beverage
1-55 license or permit for a location with a door by which the public
1-56 may enter the place of business of the applicant that is within
1-57 1,000 feet of the nearest property line of a public or private
1-58 school, measured along street lines and directly across
1-59 intersections, must give written notice of the application to
1-60 officials of the public or private school before filing the
1-61 application with the commission. A copy of the notice must be
1-62 submitted to the commission with the application. This subsection
1-63 [Subsection (c)] does not apply to a permit or license covering a
1-64 premise where minors are prohibited from entering the premises
2-1 under Section 109.53.
2-2 (d) As to any dealer who held a license or permit on
2-3 September 1, 1983, in a location where a regulation under this
2-4 section was in effect on that date, for purposes of Subsection (a),
2-5 but not Subsection (c), of this section, the measurement of the
2-6 distance between the place of business of the dealer and a public
2-7 or private school shall be along the property lines of the street
2-8 fronts and from front door to front door, and in direct line across
2-9 intersections.
2-10 (e) The commissioners court of a county or the governing
2-11 board of a city or town that has enacted a regulation under
2-12 Subsection (a) of this section may also allow variances to the
2-13 regulation if the commissioners court or governing body determines
2-14 that enforcement of the regulation in a particular instance is not
2-15 in the best interest of the public, constitutes waste or
2-16 inefficient use of land or other resources, creates an undue
2-17 hardship on an applicant for a license or permit, does not serve
2-18 its intended purpose, is not effective or necessary, or for any
2-19 other reason the court or governing board, after consideration of
2-20 the health, safety, and welfare of the public and the equities of
2-21 the situation, determines is in the best interest of the community.
2-22 (f) Subsections [Subsection] (a)(2) and (3) do [does] not
2-23 apply to the holder of:
2-24 (1) a retail on-premises consumption permit or license
2-25 if less than 50 percent of the gross receipts for the premises is
2-26 from the sale or service of alcoholic beverages;
2-27 (2) a retail off-premises consumption permit or
2-28 license if less than 50 percent of the gross receipts for the
2-29 premises, excluding the sale of items subject to the motor fuels
2-30 tax, is from the sale or service of alcoholic beverages; or
2-31 (3) a wholesaler's, distributor's, brewer's,
2-32 distiller's and rectifier's, winery, wine bottler's or
2-33 manufacturer's permit or license, or any other license or permit
2-34 held by a wholesaler or manufacturer as those words are ordinarily
2-35 used and understood in Chapter 102.
2-36 (g) Subsection (a)(3) does not apply to the holder of:
2-37 (1) a license or permit issued under Chapter 27, 31,
2-38 or 72 who is operating on the premises of a private school; or
2-39 (2) a license or permit covering a premise where
2-40 minors are prohibited from entering under Section 109.53 and that
2-41 is located within 1,000 feet of a private school.
2-42 (h) Subsection (a)(1) does not apply to the holder of:
2-43 (1) a license or permit who also holds a food and
2-44 beverage certificate covering a premise that is located within 300
2-45 feet of a private school; or
2-46 (2) a license or permit covering a premise where
2-47 minors are prohibited from entering under Section 109.53 and that
2-48 is located within 300 feet of a private school.
2-49 (i) In this section, "private school" means a private
2-50 school, including a parochial school, that:
2-51 (1) offers a course of instruction for students in one
2-52 or more grades from kindergarten through grade 12; and
2-53 (2) has more than 100 students enrolled and attending
2-54 courses at a single location.
2-55 SECTION 3. The purpose of Section 1 of this Act in amending
2-56 Section 101.75(a), Alcoholic Beverage Code, to specifically
2-57 identify a parochial school in the list of places where a person is
2-58 prohibited from possessing an open container or consuming an
2-59 alcoholic beverage is to clarify the intent of the legislature with
2-60 respect to the effect of Section 101.75(a), Alcoholic Beverage
2-61 Code, as that section existed immediately before the effective date
2-62 of this Act.
2-63 SECTION 4. (a) The change in law made by Section 101.75(a),
2-64 Alcoholic Beverage Code, as amended by this Act, applies only to an
2-65 offense committed on or after the effective date of this Act. For
2-66 purposes of this section, an offense is committed before the
2-67 effective date of this Act if any element of the offense occurs
2-68 before the effective date.
2-69 (b) An offense committed before the effective date of this
3-1 Act is covered by the law in effect when the offense was committed,
3-2 and the former law is continued in effect for that purpose.
3-3 SECTION 5. This Act takes effect immediately if it receives
3-4 a vote of two-thirds of all the members elected to each house, as
3-5 provided by Section 39, Article III, Texas Constitution. If this
3-6 Act does not receive the vote necessary for immediate effect, this
3-7 Act takes effect September 1, 2001.
3-8 * * * * *