Why can’t I buy alcohol in my city or county?

by | Feb 16, 2022 | Regulatory Risk Analysis and Compliance

Prohibition ended almost 90 years ago, but in some areas of Texas, you still can’t buy alcoholic beverages. That’s because voters of any city, county, or justice of the peace precinct can call a local option election to prohibit the sale of all or certain alcoholic beverages—giving us “partially dry” and “dry” areas. You can possess alcohol in a dry area for personal consumption, but it’s illegal to manufacture or sell it.

Counties, cities, and justice of the peace precincts in Texas are wet except when the voters have prohibited the sale of all or certain alcoholic beverages by holding a local option election. At one time or another, the voters in almost every county in the state have adopted at least some local restriction on alcohol sales.

The Texas Alcohol Beverage Commission (TABC) maintains a map of wet/dry areas. Over time, Texas has been getting “wetter.” In 1986, there were 62 completely dry counties. That number dropped to 35 completely dry counties in 2003. As of August 2021, there were just 5 completely dry counties, 60 completely wet counties in Texas, and 189 partially wet counties.

Counties are “partially wet” when there are one or more parts of the jurisdiction in which a particular type of beverage sale is legal, but there are other parts in that jurisdiction where that type of sale is not legal.

Source: TABC.

Local option elections to prohibit or legalize alcohol sales are governed by Chapter 501 of the Texas Election Code. Only counties, cities, and justice of the peace precincts are allowed to conduct local option elections. The election must include the entire territory of the respective political subdivision, not just a portion.

A local option election will be called if the political subdivision receives a petition signed by a required number of voters:

  • 25% of the registered voters in the political subdivision who voted in the most recent general election, if the ballot issue involves voting for or against “The legal sale of wine on the premises of a holder of a winery permit.”
  • 35% of the registered voters in the political subdivision who voted for governor in the most recent gubernatorial election, for an election on any other local option ballot issue.

The Texas Secretary of State’s website provides helpful information regarding local option liquor elections.

Will I lose my TABC license/permit if my area converts from wet to dry?

  • Winery—A winery permit may be issued for premises in an area where the sale of wine has not been authorized by a local option election. The winery permit holder may engage in any authorized activity except that the permit holder may sell or dispense wine only if the wine is: (1) bottled in Texas; and (2) at least 75% by volume fermented juice of grapes or other fruit grown in Texas or a lesser percentage established by the Commissioner of Agriculture.[1]
  • Brewer—The holder of a brewer’s license issued prior to the local option election will no longer be able to sell malt beverages if doing so violates the local option status of the area, but the brewer can still engage in all other activities authorized by the license (i.e., brewing, possessing, storing, and packaging of malt beverages, and transporting the malt beverages to an area where the sale of malt beverages is legal). TABC cannot deny the brewer an original or renewal license for the same location on the ground that the area now prohibits the sale of malt beverages.[2]
  • Distiller/Rectifier—The holder of a distiller’s and rectifier’s permit issued prior to the local option election may continue exercising all privileges of the permit, including the manufacturing, possessing, storing, packaging, and bottling of distilled spirits and the transportation of them to areas in which their sale is legal. TABC cannot deny the distiller/rectifier an original or renewal permit for the same location on the ground that the area now prohibits the sale of distilled spirits.[3]
  • Distributor—If the sale of malt beverages is prohibited by local option election, a distributor of malt beverages may continue to operate as a distributor in that area and maintain its distribution warehouse or other facilities located in the area. The distributor may continue to possess, store, warehouse, and sell malt beverages in that area and deliver malt beverages into and out of that area. However, such a distributor may sell or deliver malt beverages only to licensed outlets located where the sale of malt beverages is legal.[4]
  • Wholesaler—If the sale of the type or types of liquor authorized to be sold by the holder of a wholesaler’s permit is prohibited by local option election, the wholesaler may continue to operate as a wholesaler in that area and maintain the necessary premises and facilities for the wholesale operation and enjoy all the rights and privileges incident to the permit. However, the wholesaler may only sell or deliver liquor to permittees located where the sale of liquor is legal.[5]

I live in a dry area. Can I have alcohol delivered to me from a wet area?

No. The TABC prohibits the transportation and delivery of liquor[6] to a person in a dry area.[7] Malt beverages[8]  can be transported across a dry area but not delivered or consumed there.[9]

Can I ever drink in a dry area?

The Texas Attorney General has opined that personal possession and consumption of alcoholic beverages is allowed in a dry area. So long as an individual complies with other provisions of Texas law, like the legal drinking age and the prohibition against public intoxication, that person may possess and consume alcoholic beverages regardless of a jurisdiction’s wet or dry status.[10]

However, it’s a criminal offense for a person in a dry area to possess an alcoholic beverage with intent to sell. Under Section 101.31 of the Texas Alcoholic Beverage Code, a person in a dry area cannot manufacture, distill, brew, sell, import into the state, export from the state, transport, distribute, warehouse, store, solicit or take orders for, or possess with intent to sell, an alcoholic beverage.[11] An offense under section 101.31 is a Class B misdemeanor, which is punishable by a fine, jail time, or both.

[1] Tex. Alco. Bev. Code § 16.011.

[2] Tex. Alco. Bev. Code § 251.75.

[3] Tex. Alco. Bev. Code § 251.76.

[4] Tex. Alco. Bev. Code § 251.77.

[5] Tex. Alco. Bev. Code § 251.78.

[6] “Liquor” is any alcoholic beverage, other than a malt beverage, with an alcohol content of 5% or more. Tex. Alco. Bev. Code § 1.04(5).

[7] Tex. Alco. Bev. Code § 107.03.

[8] A “malt beverage” is a fermented beverage with an alcohol content of 0.5% or more that is brewed or produced from malt or malt substitute. Tex. Alco. Bev. Code § 1.04(15).

[9] Tex. Alco. Bev. Code §§ 107.04; 107.02.

[10] Op. Tex. Att’y Gen. No. GA-0561 (2007).

[11] Tex. Alco. Bev. Code § 101.31.

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