73R7684 CAG-F
By Wilson H.B. No. 1445
Substitute the following for H.B. No. 1445:
By Wilson C.S.H.B. No. 1445
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation of the Texas Alcoholic Beverage
1-3 Commission and to the regulation of alcoholic beverages; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 1, Alcoholic Beverage Code, is amended by
1-7 adding Section 1.08 to read as follows:
1-8 Sec. 1.08. CRIMINAL NEGLIGENCE STANDARD FOR ADMINISTRATIVE
1-9 ACTION. For the purposes of administrative actions under this
1-10 code, a person acts with criminal negligence if the person acts
1-11 with a mental state that would constitute criminal negligence under
1-12 Chapter 6, Penal Code, if the act were an offense.
1-13 SECTION 2. Section 5.01, Alcoholic Beverage Code, is amended
1-14 by amending Subsection (b) and adding Subsection (c) to read as
1-15 follows:
1-16 (b) The Texas Alcoholic Beverage Commission is subject to
1-17 Chapter 325, Government Code (Texas Sunset Act). Unless continued
1-18 in existence as provided by that chapter, the commission is
1-19 abolished and Subchapter A, Chapter 5, of this code expires
1-20 September 1, 2005 <1993>.
1-21 (c) The Texas Alcoholic Beverage Commission is subject to
1-22 the requirements of Article 13, State Purchasing and General
1-23 Services Act (Article 601b, Vernon's Texas Civil Statutes).
1-24 SECTION 3. Section 5.02(a), Alcoholic Beverage Code, is
2-1 amended to read as follows:
2-2 (a) The commission is composed of six <three> members, who
2-3 are appointed by the governor with the advice and consent of the
2-4 senate.
2-5 SECTION 4. Section 5.03, Alcoholic Beverage Code, is amended
2-6 to read as follows:
2-7 Sec. 5.03. Terms of Office. The members of the commission
2-8 hold office for staggered terms of six years, with the term of
2-9 one-third of the members <one member> expiring every two years.
2-10 Each member holds office until his successor is appointed and has
2-11 qualified. A member may be appointed to succeed himself.
2-12 SECTION 5. Section 5.05, Alcoholic Beverage Code, is amended
2-13 by amending Subsection (c) and by adding Subsections (d), (e), and
2-14 (f) to read as follows:
2-15 (c) A person may not serve as a member of the commission or
2-16 act as the general counsel to the commission if the person <who> is
2-17 required to register as a lobbyist under Chapter 305, Government
2-18 Code, because <by virtue> of the person's activities for
2-19 compensation <in or> on behalf of a profession related to the
2-20 operation of the commission <may not serve as a member of the
2-21 commission or act as the general counsel to the commission>.
2-22 (d) An officer, employee, or paid consultant of a Texas
2-23 trade association in the field of alcoholic beverage manufacture,
2-24 distribution, service, or sales may not be a member or employee of
2-25 the commission.
2-26 (e) A person who is the spouse of an officer, manager, or
2-27 paid consultant of a Texas trade association in the field of
3-1 alcoholic beverage manufacture, distribution, or sales may not be a
3-2 member or employee of the commission.
3-3 (f) For the purposes of this section, a Texas trade
3-4 association is a nonprofit, cooperative, and voluntarily joined
3-5 association of business or professional competitors in this state
3-6 designed to assist its members and its industry or profession in
3-7 dealing with mutual business or professional problems and in
3-8 promoting their common interest.
3-9 SECTION 6. Sections 5.10(b), (c), and (d), Alcoholic
3-10 Beverage Code, are amended to read as follows:
3-11 (b) The <commission or> administrator or the administrator's
3-12 designee shall <determine the duties of all employees and shall>
3-13 develop an intra-agency career ladder program. The program<, one
3-14 part of which> shall require the intra-agency posting of all
3-15 nonentry level positions concurrently with any public posting. The
3-16 <commission or> administrator<,> or the administrator's designee
3-17 <of either,> shall develop a system of annual performance
3-18 evaluations <based on measurable job tasks>. All merit pay for
3-19 commission employees must be based on the system established under
3-20 this subsection. The employees shall be compensated as provided by
3-21 legislative appropriation. The commission or administrator shall
3-22 determine the duties of all employees of the commission.
3-23 (c) The <commission or> administrator<,> or the
3-24 administrator's designee <of either,> shall prepare and maintain a
3-25 written policy statement to assure implementation of a program of
3-26 equal employment opportunity under which <whereby> all personnel
3-27 transactions are made without regard to race, color, disability
4-1 <handicap>, sex, religion, age, or national origin. The policy
4-2 statement must include:
4-3 (1) personnel policies, including policies relating to
4-4 recruitment, evaluation, selection, appointment, training, and
4-5 promotion of personnel that are in compliance with the Commission
4-6 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes);
4-7 (2) a comprehensive <complete> analysis of the
4-8 commission <agency's> work force that meets federal and state
4-9 guidelines;
4-10 (3) procedures by which a determination can be made of
4-11 significant underuse <underutilization,> in the commission <agency>
4-12 work force<,> of all persons for whom <of which> federal or state
4-13 guidelines encourage a more equitable balance; and
4-14 (4) reasonable methods to appropriately address those
4-15 areas of significant underuse <underutilization, in the agency work
4-16 force, of all persons of which federal or state guidelines
4-17 encourage a more equitable balance>.
4-18 (d) A <The> policy statement prepared under Subsection (c)
4-19 of this section must <shall be filed with the governor's office
4-20 within 60 days of the effective date of the amendment of this
4-21 section by the 69th Legislature, Regular Session, 1985,> cover an
4-22 annual period, <and> be updated <at least> annually and reviewed by
4-23 the Commission on Human Rights for compliance with Subsection
4-24 (c)(1) of this section, and be filed with the governor's office.
4-25 The governor's office shall deliver <develop and make> a biennial
4-26 report to the legislature based on the information submitted under
4-27 this subsection. The report may be made separately or as a part of
5-1 other biennial reports made to the legislature.
5-2 SECTION 7. Subchapter A, Chapter 5, Alcoholic Beverage Code,
5-3 is amended by adding Sections 5.101, 5.102, and 5.103 to read as
5-4 follows:
5-5 Sec. 5.101. HUMAN RESOURCES DIVISION. (a) A human
5-6 resources division is established within the commission.
5-7 (b) The division is responsible for personnel, recruiting,
5-8 hiring, and other human resource functions and shall provide
5-9 recruiting and technical assistance to the divisions and regional
5-10 offices of the commission.
5-11 (c) The division shall develop policies and procedures
5-12 related to recruitment, hiring, and other human resource functions
5-13 that are in compliance with state and federal law.
5-14 Sec. 5.102. RECRUITMENT. For the purpose of providing
5-15 adequate personnel for all job positions in the commission, the
5-16 commission shall:
5-17 (1) open all positions compensated at or above the
5-18 amount prescribed by the General Appropriations Act for step 1,
5-19 salary group 21, of the position classification salary schedule to
5-20 applicants both from within and outside the commission;
5-21 (2) develop a recruiting program that identifies
5-22 underrepresentation with the commission and focuses on recruiting
5-23 different ethnic, racial, or gender groups for job categories in
5-24 which underrepresentation occurs; and
5-25 (3) require that all applicants be reviewed by the
5-26 human resources division to ensure consideration of
5-27 underrepresented ethnic, racial, or gender groups.
6-1 Sec. 5.103. ANNUAL REPORT. The administrator shall report
6-2 not later than February 1 of each year to the commission on the
6-3 progress of the commission in the recruitment and hiring of
6-4 personnel in compliance with the commission's recruitment and
6-5 hiring policies.
6-6 SECTION 8. Subchapter A, Chapter 5, Alcoholic Beverage Code,
6-7 is amended by adding Section 5.142 to read as follows:
6-8 Sec. 5.142. SPECIAL INSPECTORS OR REPRESENTATIVES. (a) The
6-9 commission or administrator may appoint as a special inspector or
6-10 representative an honorably retired commissioned inspector or
6-11 representative.
6-12 (b) A special inspector or representative is subject to the
6-13 orders of the commission and is subject to the orders of the
6-14 governor for special duty to the same extent as other law
6-15 enforcement officers.
6-16 (c) Before issuance of a commission to a special inspector
6-17 or representative, the person shall enter into a good and
6-18 sufficient bond executed by a surety company authorized to do
6-19 business in the state in the amount of $2,500, approved by the
6-20 commission, and indemnifying all persons against damages resulting
6-21 from an unlawful act of the person as a special inspector or
6-22 representative.
6-23 (d) A special inspector or representative is not entitled to
6-24 compensation from the state for service as a special inspector or
6-25 representative.
6-26 (e) A special inspector or representative commission expires
6-27 January 1 of the first odd-numbered year after appointment. The
7-1 commission may revoke a special inspector or representative
7-2 commission at any time for cause.
7-3 SECTION 9. Subchapter A, Chapter 5, Alcoholic Beverage Code,
7-4 is amended by adding Section 5.143 to read as follows:
7-5 Sec. 5.143. SAFETY EQUIPMENT. The commission shall provide
7-6 a reasonable number of bullet-proof vests at each district office
7-7 for commission employees who are engaged in law enforcement
7-8 activities.
7-9 SECTION 10. Subchapter A, Chapter 5, Alcoholic Beverage
7-10 Code, is amended by adding Section 5.19 to read as follows:
7-11 Sec. 5.19. CITIZEN'S ADVISORY COMMITTEE. (a) The
7-12 commission may appoint a citizen's advisory committee consisting of
7-13 nine members. The committee members shall be appointed to
7-14 represent a balance of interests, including representatives of:
7-15 (1) public groups interested in alcohol consumption
7-16 issues;
7-17 (2) local communities;
7-18 (3) local law enforcement agencies; and
7-19 (4) the alcoholic beverage industry.
7-20 (b) A citizen's advisory committee member serves at the
7-21 pleasure of the commission. A member of the committee is not
7-22 entitled to receive compensation for serving as a member. A member
7-23 is entitled to reimbursement for reasonable expenses incurred in
7-24 performing duties as a member of the committee.
7-25 (c) The citizen's advisory committee shall:
7-26 (1) advise the commission on the needs and problems of
7-27 communities relating to the sale and consumption of alcoholic
8-1 beverages;
8-2 (2) comment on rules involving alcoholic beverages
8-3 during their development and before their final adoption unless an
8-4 emergency requires immediate action by the commission;
8-5 (3) report annually to the commission on the
8-6 committee's activities; and
8-7 (4) perform other duties as determined by the
8-8 commission.
8-9 (d) The citizen's advisory committee shall meet quarterly or
8-10 as requested by the commission.
8-11 (e) The commission may adopt rules to govern the operations
8-12 of the citizen's advisory committee.
8-13 SECTION 11. Subchapter A, Chapter 5, Alcoholic Beverage
8-14 Code, is amended by adding Section 5.20 to read as follows:
8-15 Sec. 5.20. STANDARDS OF CONDUCT INFORMATION. The commission
8-16 shall provide to its members and employees, as often as necessary,
8-17 information regarding their qualification for office or employment
8-18 under this code and their responsibilities under applicable laws
8-19 relating to standards of conduct for state officers or employees.
8-20 SECTION 12. Section 5.34, Alcoholic Beverage Code, is
8-21 amended to read as follows:
8-22 Sec. 5.34. Delegation of Authority. (a) The commission may
8-23 authorize its commissioned peace officers <agents>, servants, and
8-24 employees to carry out, under its direction, the provisions of this
8-25 code.
8-26 (b) The commission shall develop and implement policies that
8-27 clearly define the respective responsibilities of the commission
9-1 and the staff of the commission.
9-2 SECTION 13. Subchapter B, Chapter 5, Alcoholic Beverage
9-3 Code, is amended by adding Section 5.371 to read as follows:
9-4 Sec. 5.371. PROCEEDS FROM CONTRABAND. Property, money, and
9-5 the proceeds from forfeited contraband provided to the commission
9-6 by a federal agency or under state or federal law shall be
9-7 deposited in the commission's account in the state treasury and may
9-8 be appropriated only to the commission for law enforcement
9-9 purposes. Funds under this section that are not expended at the
9-10 close of a fiscal year shall be reappropriated for the same purpose
9-11 the following fiscal year.
9-12 SECTION 14. Section 5.43, Alcoholic Beverage Code, is
9-13 amended to read as follows:
9-14 Sec. 5.43. Who May Hold Hearing; Rules of Evidence. Except
9-15 for a hearing held under Section 61.32 of this code, a hearing on
9-16 the adoption of commission rules, or a hearing on an employment
9-17 matter, the <The> commission designates the State Office of
9-18 Administrative Hearings <or administrator may designate a member of
9-19 the commission or other representative> to conduct and make a
9-20 record of any hearing authorized by this code. The commission or
9-21 administrator may render a decision on the basis of the record or
9-22 the proposal for decision if one is required under the
9-23 Administrative Procedure and Texas Register Act (Article 6252-13a,
9-24 Vernon's Texas Civil Statutes) as if the administrator or entire
9-25 commission had conducted the hearing. The commission may prescribe
9-26 its rules of procedure for cases not heard by the State Office of
9-27 Administrative Hearings.
10-1 SECTION 15. Section 5.50, Alcoholic Beverage Code, is
10-2 amended to read as follows:
10-3 Sec. 5.50. Establishment of <Certain> Fees. (a) Except for
10-4 a service or importing fee, the <The> commission by rule shall set
10-5 <may establish reasonable> fees for tasks and services performed by
10-6 the commission or licenses or permits issued by the commission in
10-7 carrying out the provisions of this code in amounts reasonable and
10-8 necessary to defray the cost of administering<, including fees
10-9 incidental to the issuance of licenses and permits under Title 3
10-10 of> this code.
10-11 (b) <The commission may not increase or decrease a fee set
10-12 by this code, but if a statute is enacted creating a certificate,
10-13 permit, or license and there is no fee established, the commission
10-14 by rule may set a fee.>
10-15 <(c)> Insofar as they relate to the levying and collection
10-16 of a local fee, Sections 11.38 and 61.36 of this code <do not>
10-17 apply to license or permit fees set by rule of the commission.
10-18 (c) <(d) A fee authorized by this section and set by rule of
10-19 the commission may not exceed $25.> Revenues from fees collected
10-20 by the commission under this section shall be deposited in the
10-21 general revenue fund.
10-22 SECTION 16. Subchapter B, Chapter 5, Alcoholic Beverage
10-23 Code, is amended by adding Section 5.52 to read as follows:
10-24 Sec. 5.52. PROGRAM ACCESSIBILITY PLAN. The commission shall
10-25 prepare and maintain a written plan that describes how a person who
10-26 does not speak English or who has a physical, mental, or
10-27 developmental disability may be provided reasonable access to the
11-1 commission's programs.
11-2 SECTION 17. Subchapter B, Chapter 5, Alcoholic Beverage
11-3 Code, is amended by adding Section 5.53 to read as follows:
11-4 Sec. 5.53. PUBLIC INTEREST INFORMATION. (a) The commission
11-5 shall prepare information of public interest describing the
11-6 functions of the commission and the commission's procedures by
11-7 which complaints are filed with and resolved by the commission.
11-8 The commission shall make the information available to the public
11-9 and appropriate state agencies.
11-10 (b) The commission by rule shall establish methods by which
11-11 consumers and service recipients are notified of the name, mailing
11-12 address, and telephone number of the commission for the purpose of
11-13 directing a complaint to the commission. The commission may
11-14 require that the notification be provided on a sign prominently
11-15 displayed in the place of business of each individual or entity
11-16 regulated under this code.
11-17 SECTION 18. Subchapter B, Chapter 5, Alcoholic Beverage
11-18 Code, is amended by adding Section 5.54 to read as follows:
11-19 Sec. 5.54. RESOLUTION OF COMPLAINTS. (a) The commission
11-20 shall keep an information file about each complaint filed with the
11-21 commission that the commission has authority to resolve.
11-22 (b) If a written complaint is filed with the commission that
11-23 the commission has authority to resolve, the commission, at least
11-24 quarterly and until final disposition of the complaint, shall
11-25 notify the parties to the complaint of the status of the complaint
11-26 unless the notice would jeopardize an undercover investigation.
11-27 SECTION 19. Section 6.01(b), Alcoholic Beverage Code, is
12-1 amended to read as follows:
12-2 (b) A license or permit issued under this code is a purely
12-3 personal privilege and is subject to revocation or suspension if
12-4 the holder is found to have violated a provision of this code or a
12-5 rule of the commission.
12-6 SECTION 20. Section 6.02(b), Alcoholic Beverage Code, is
12-7 amended to read as follows:
12-8 (b) The fee for an application for a change in expiration
12-9 date is set by the commission <$25 per license or permit affected>.
12-10 SECTION 21. Chapter 6, Alcoholic Beverage Code, is amended
12-11 by adding Sections 6.03 and 6.04 to read as follows:
12-12 Sec. 6.03. CITIZENSHIP REQUIREMENTS. (a) It is the public
12-13 policy of this state and a purpose of this section to require that,
12-14 except as provided in Subsection (b) of this section or otherwise
12-15 in this code, a permit or license may not be issued to a person who
12-16 was not a citizen of this state for the three-year period preceding
12-17 the date of the filing of the person's application for a license or
12-18 permit. In that regard, the legislature makes the findings in
12-19 Subsections (b) through (j) of this section.
12-20 (b) Between 1920 and 1933, the distribution and consumption
12-21 of alcoholic beverages was prohibited in the United States. While
12-22 the idealistic motives behind Prohibition were noble, a law
12-23 enforcement nightmare ensued. Otherwise law-abiding citizens
12-24 routinely violated the law by buying and consuming alcoholic
12-25 beverages. The demand for the illegal products created an
12-26 opportunity for criminal elements to develop a national network for
12-27 the supply and distribution of alcoholic beverages to the populace.
13-1 Massive criminal empires were built on illicit profits from these
13-2 unlawful activities and organized crime openly flourished in
13-3 Chicago, New York, New Orleans, and other cities.
13-4 (c) During Prohibition, the illegal enterprises used their
13-5 national wholesale distribution networks to exert control over
13-6 their customers. A common operating procedure was to sell
13-7 alcoholic beverages to a speakeasy on liberal terms to ensnarl the
13-8 owner in a web of debt and control with the aim of forcing the
13-9 owner to engage in other illegal business enterprises on the
13-10 premises including gambling, prostitution, and the distribution of
13-11 illegal drugs.
13-12 (d) In 1935, when the sale of alcoholic beverages was
13-13 legalized in this state following the adoption of the Twenty-first
13-14 Amendment to the United States Constitution, the state was faced
13-15 with building an entire framework for the distribution of alcoholic
13-16 beverage products. An important concern was that since criminals
13-17 owned and controlled the existing illegal alcoholic beverage
13-18 distribution system, criminals would attempt to own and control the
13-19 newly legalized industry. In an effort to prevent this situation,
13-20 comprehensive laws were adopted to ensure that an alcoholic
13-21 beverage permit or license could be issued only to citizens of the
13-22 state who had lived in this state for at least three years, thus,
13-23 long enough to be known by their community and neighbors.
13-24 (e) Under the newly designed regulatory scheme, permits and
13-25 licenses issued by the state did not grant the holder a right.
13-26 Rather, the holder was granted a privilege that could be challenged
13-27 at both the county and the state level if the character or
14-1 qualifications of the applicant were suspect. Finally, strict cash
14-2 and credit laws were adopted to prevent parties in the wholesale
14-3 distribution system from controlling their retail customers through
14-4 the leveraging of debt to accomplish other illicit gain.
14-5 (f) The alcoholic beverage laws adopted by the legislature
14-6 in the 1930s to free the industry from the influence of organized
14-7 crime have been successful in this state. The alcoholic beverage
14-8 industry in this state is not dominated by organized crime.
14-9 However, the legislature does find that organized crime continues
14-10 to be a threat that should never be allowed to establish itself in
14-11 the alcoholic beverage industry in this state.
14-12 (g) To accommodate the interests of the consuming public,
14-13 the expansion of popular nationwide businesses and the increasing
14-14 state interest in tourism, and at the same time to guard against
14-15 the threats of organized crime, unfair competition, and decreased
14-16 opportunities for small businesses, the legislature finds that
14-17 there is no longer need for the three-year residency requirements
14-18 with regard to those segments of the industry that sell alcoholic
14-19 beverages to the ultimate consumer only. But the legislature also
14-20 finds it reasonable, desirable, and in the best interests of the
14-21 state to retain the three-year residency requirements for
14-22 businesses engaged in the wholesale distribution of beer, malt
14-23 liquor, or wine or in the manufacture and distribution of distilled
14-24 spirits and fortified wines at both the wholesale and the retail
14-25 levels where those beverages, in unopened containers, are sold to
14-26 mixed beverage permittees and private club registration permittees
14-27 as well as to the general public. Adequate protection is deemed to
15-1 be provided by controlling those sources of supply for distilled
15-2 spirits and fortified wines.
15-3 (h) It is also the public policy of this state and a purpose
15-4 of this section to enforce strict cash and credit laws as a means
15-5 of preventing those engaged in the distribution of alcoholic
15-6 beverages from exerting undue influence over any level of the
15-7 industry selling or serving alcoholic beverages to the ultimate
15-8 consumer.
15-9 (i) It is also the public policy of this state and a purpose
15-10 of this section to maintain and enforce the three-tier system
15-11 (strict separation between the manufacturing, wholesaling, and
15-12 retailing levels of the industry) and thereby to prevent the
15-13 creation or maintenance of a "tied house" as described and
15-14 prohibited in Section 102.01 of this code.
15-15 (j) The above-stated public policies, purposes of this
15-16 section, and legislative findings are provided as guidelines for
15-17 the construction of the following subsections of this section.
15-18 (k) A requirement under this code that 51 percent or more of
15-19 the stock of a corporation be owned by a person or persons who were
15-20 citizens of this state for the three-year period preceding the date
15-21 of the filing of an application for a license or permit does not
15-22 apply to a corporation organized under the laws of this state that
15-23 applies for a license or permit under Chapters 25-34, Chapter 44,
15-24 Chapters 48-51, or Chapters 69-72 of this code if:
15-25 (1) all of the officers and a majority of directors of
15-26 the applicant corporation have resided within the state for the
15-27 three-year period preceding the date of the application and each
16-1 officer or director possesses the qualifications required of other
16-2 applicants for permits and licenses;
16-3 (2) the applicant corporation and the applicant's
16-4 shareholders have no direct or indirect ownership or other
16-5 prohibited relationship with others engaged in the alcoholic
16-6 beverage industry at different levels as provided by Chapter 102 of
16-7 this code;
16-8 (3) the applicant corporation is not precluded by law,
16-9 rule, charter, or corporate bylaw from disclosing the applicant's
16-10 shareholders to the commission; and
16-11 (4) the applicant corporation maintains its books and
16-12 records relating to its alcoholic beverage operations in the state
16-13 at its registered office or at a location in the state approved in
16-14 writing by the commission.
16-15 (l) Corporations subject to Subsection (k) of this section
16-16 that have substantially similar ownership may merge or consolidate.
16-17 A fee of $100 shall be paid to the commission for each licensed or
16-18 permitted premises that is merged or consolidated into the
16-19 surviving corporation. The surviving corporation succeeds to all
16-20 privileges of the prior corporation that held the permits or
16-21 licenses if the surviving corporation is qualified to hold the
16-22 permits or licenses under this code. For the purposes of this
16-23 subsection, corporations have substantially similar ownership if 90
16-24 percent or more of the corporations is owned by the same person or
16-25 persons or by the same corporation or corporations or if the
16-26 surviving corporation has maintained an ownership interest in the
16-27 merged or consolidated corporations since the date the original
17-1 permit or license was issued.
17-2 Sec. 6.04. GRACE PERIOD ON RENEWAL OF LICENSES AND PERMITS.
17-3 (a) Notwithstanding any other provision of this code, the holder
17-4 of a license or permit issued under this code may renew the license
17-5 or permit rather than reapply for an original license or permit if,
17-6 not later than the 10th day after the date of the expiration of the
17-7 license or permit, the holder files a renewal application with the
17-8 commission and pays a renewal fee of $100 and the license or permit
17-9 fee that is due.
17-10 (b) If an application is filed under Subsection (a) of this
17-11 section, a violation of the law that occurs before the filing of a
17-12 renewal application may be the basis for an administrative action
17-13 against the holder of the license or permit.
17-14 (c) The commission shall adopt rules necessary to implement
17-15 this section.
17-16 SECTION 22. Subchapter A, Chapter 11, Alcoholic Beverage
17-17 Code, is amended by adding Section 11.015 to read as follows:
17-18 Sec. 11.015. HEARING LOCATION. Notwithstanding any other
17-19 provision of this code, a hearing related to the issuance, renewal,
17-20 cancellation, or suspension of a permit under this subtitle may be
17-21 conducted only at:
17-22 (1) the commission's branch office in the county in
17-23 which the premises is located; or
17-24 (2) if no branch office is located in the county, the
17-25 county courthouse of the county in which the premises is located.
17-26 SECTION 23. Section 11.34(b), Alcoholic Beverage Code, is
17-27 amended to read as follows:
18-1 (b) An applicant who files a consolidated application must
18-2 pay the fee set by the commission <prescribed in this code> for
18-3 each permit included in the application.
18-4 SECTION 24. Sections 11.46(a) and (c), Alcoholic Beverage
18-5 Code, are amended to read as follows:
18-6 (a) The commission or administrator may refuse to issue an
18-7 original or renewal permit with or without a hearing if it has
18-8 reasonable grounds to believe and finds that any of the following
18-9 circumstances exists:
18-10 (1) the applicant has been convicted in a court of
18-11 competent jurisdiction of the violation of any provision of this
18-12 code during the two years immediately preceding the filing of his
18-13 application;
18-14 (2) three years have not elapsed since the
18-15 termination, by pardon or otherwise, of a sentence imposed on the
18-16 applicant for the conviction of a felony;
18-17 (3) within the six-month period immediately preceding
18-18 his application the applicant violated or caused to be violated a
18-19 provision of this code or a rule or regulation of the commission
18-20 which involves moral turpitude, as distinguished from a technical
18-21 violation of this code or of the rule;
18-22 (4) the applicant failed to answer or falsely or
18-23 incorrectly answered a question in an original or renewal
18-24 application;
18-25 (5) the applicant is indebted to the state for any
18-26 taxes, fees, or payment of penalty imposed by this code or by rule
18-27 of the commission;
19-1 (6) the applicant is not of good moral character or
19-2 his reputation for being a peaceable, law-abiding citizen in the
19-3 community where he resides is bad;
19-4 (7) the applicant is a minor;
19-5 (8) the place or manner in which the applicant may
19-6 conduct his business warrants the refusal of a permit based on the
19-7 general welfare, health, peace, morals, and safety of the people
19-8 and on the public sense of decency;
19-9 (9) the applicant is in the habit of using alcoholic
19-10 beverages to excess or is physically or mentally incapacitated;
19-11 (10) the applicant will sell liquor unlawfully in a
19-12 dry area or in a manner contrary to law or will knowingly permit an
19-13 agent, servant, or employee to do so;
19-14 (11) the applicant is not a United States citizen or
19-15 has not been a citizen of Texas for a period of three years
19-16 immediately preceding the filing of his application, unless he was
19-17 issued a permit or renewal permit on or before September 1, 1948,
19-18 and has at some time been a United States citizen;
19-19 (12) the applicant does not provide <have> an adequate
19-20 building available at the address for which the permit is sought
19-21 before conducting any activity authorized by the permit;
19-22 (13) the applicant is residentially domiciled with a
19-23 person whose permit or license has been cancelled for cause within
19-24 the 12 months immediately preceding the date of his present
19-25 application;
19-26 (14) the applicant has failed or refused to furnish a
19-27 true copy of his application to the commission's district office in
20-1 the district in which the premises for which the permit is sought
20-2 are located; or
20-3 (15) during the six months immediately preceding the
20-4 filing of the application the premises for which the permit is
20-5 sought have been operated, used, or frequented for a purpose or in
20-6 a manner that is lewd, immoral, or offensive to public decency.
20-7 (c) The commission or administrator shall refuse to issue
20-8 for a period of one year after cancellation a mixed beverage permit
20-9 or private club registration permit for a premises where a license
20-10 or permit has <two or more licenses and permits have> been canceled
20-11 during the preceding 12 months as a result of a shooting, stabbing,
20-12 or other violent act, or as a result of an offense involving drugs.
20-13 SECTION 25. Section 11.611, Alcoholic Beverage Code, is
20-14 amended to read as follows:
20-15 Sec. 11.611. Conviction of Offense Relating to
20-16 Discrimination. The commission or administrator may suspend <for
20-17 not more than 60 days> or cancel an original or renewal permit if
20-18 it is found, after notice and hearing that:
20-19 (1) the permittee has been finally convicted of any
20-20 offense under state or federal law or a municipal ordinance
20-21 prohibiting the violation of an individual's civil rights or the
20-22 discrimination against an individual on the basis of the
20-23 individual's race, color, creed, or national origin; and
20-24 (2) the offense was committed on the licensed premises
20-25 or in connection with the operation of the permittee's business.
20-26 SECTION 26. Section 11.64(a), Alcoholic Beverage Code, is
20-27 amended to read as follows:
21-1 (a) When the commission or administrator is authorized to
21-2 suspend a permit or license under this code, the commission or
21-3 administrator shall give the permittee or licensee the opportunity
21-4 to pay a civil penalty rather than have the permit or license
21-5 suspended. The commission or administrator shall determine the
21-6 amount of the penalty and in doing so shall consider the economic
21-7 impact a suspension would have on the permittee or licensee. The
21-8 amount of the civil penalty may not be less than $150 or more than
21-9 $25,000 for each day the permit or license was to have been
21-10 suspended. If the licensee or permittee does not pay the penalty
21-11 before the sixth day after the commission or administrator notifies
21-12 him of the amount, he loses the opportunity to pay it and the
21-13 commission or administrator shall impose the suspension.
21-14 SECTION 27. Section 16.01, Alcoholic Beverage Code, is
21-15 amended to read as follows:
21-16 Sec. 16.01. Authorized Activities. (a) The holder of a
21-17 winery permit may:
21-18 (1) manufacture, bottle, label, and package wine
21-19 containing not more than 24 percent alcohol by volume;
21-20 (2) manufacture and import grape brandy for fortifying
21-21 purposes only and to be used only on his licensed premises;
21-22 (3) sell wine in this state to holders of wholesaler's
21-23 permits, winery permits, and wine bottler's permits;
21-24 (4) sell wine to ultimate consumers in unbroken
21-25 packages for off-premises consumption in an amount not to exceed
21-26 25,000 gallons annually;
21-27 (5) sell the wine outside this state to qualified
22-1 persons;
22-2 (6) blend wines; and
22-3 (7) dispense free wine for consumption on the winery
22-4 premises.
22-5 (b) The holder of a winery permit may manufacture and label
22-6 wine for an adult in an amount not to exceed 30 gallons annually
22-7 for the personal use of the adult. Any amount of wine produced
22-8 under this subsection is included in the annual total amount that
22-9 may be sold by the holder under Subsection (a)(4) of this section.
22-10 An adult for whom wine is manufactured and labeled under this
22-11 subsection is not required to hold a license or permit issued under
22-12 this code.
22-13 (c) The holder of a winery permit may conduct wine
22-14 samplings, including wine tastings at a retailer's premises. A
22-15 winery employee may open, touch, or pour wine, make a presentation,
22-16 or answer questions at a wine sampling. A wine sampling may not be
22-17 held in a location where a wine sampling is otherwise prohibited by
22-18 law.
22-19 SECTION 28. Chapter 22, Alcoholic Beverage Code, is amended
22-20 by adding Section 22.13 to read as follows:
22-21 Sec. 22.13. TEMPORARY PACKAGE STORE PERMIT. (a) On
22-22 application for a package store permit or a wine and beer
22-23 retailer's off-premises permit, application for a temporary package
22-24 store permit, and payment of the required fees including a fee for
22-25 the temporary permit as set by the commission, the commission may
22-26 issue a temporary package store permit to a person who has entered
22-27 into a contract to purchase a package store from a holder of a
23-1 package store permit or a wine and beer retailer's off-premises
23-2 permit.
23-3 (b) Unless revoked or canceled by the commission, a
23-4 temporary package store permit is valid only during the period that
23-5 the application for a package store permit is being considered by
23-6 the commission ending on the day that the package store permit is
23-7 issued or denied by the commission or by a county judge.
23-8 (c) The holder of a temporary package store permit has all
23-9 of the rights, privileges, and duties of a holder of a package
23-10 store permit.
23-11 SECTION 29. Sections 25.03(a) and (b), Alcoholic Beverage
23-12 Code, are amended to read as follows:
23-13 (a) A wine and beer retailer's permit may be issued for
23-14 railway dining, buffet, or club cars on the payment of a fee set by
23-15 the commission <an annual state fee of $30 for each car>.
23-16 (b) A wine and beer retailer's permit may be issued for a
23-17 regularly scheduled excursion boat which is licensed by the United
23-18 States Coast Guard to carry passengers on the navigable waters of
23-19 the state and which has a tonnage of not less than 35 tons, a
23-20 length of not less than 55 feet, and a passenger capacity of not
23-21 less than 45 passengers. <The annual state fee for the permit is
23-22 $130.>
23-23 SECTION 30. Section 28.04(d), Alcoholic Beverage Code, is
23-24 amended to read as follows:
23-25 (d) This section does not apply to a change in corporate
23-26 control:
23-27 (1) brought about by the death of a shareholder if his
24-1 surviving spouse or descendants are his successors in interest; or
24-2 (2) brought about when legal or beneficial ownership
24-3 of over 50 percent of the stock of the corporation has been
24-4 transferred:
24-5 (A) to a person who possesses the qualifications
24-6 required of other applicants for permits and is currently an
24-7 officer of the corporation and has been an officer of the
24-8 corporation ever since the date the original permit was issued; or
24-9 (B) if the permittee pays a fee set by the
24-10 commission <of $500> and notifies the commission, on completed
24-11 forms and attachments prescribed by the commission, of the proposed
24-12 transfer at least 10 days prior to the date the transfer is to
24-13 become effective and the commission does not find that
24-14 circumstances exist that would be grounds for the denial of a
24-15 renewal of the permit under Section 11.46 of this code and provided
24-16 the ownership of the corporation immediately after the transfer
24-17 satisfies the requirements of this code. <The commission may
24-18 require the permittee to furnish a new bond as provided in Section
24-19 204.01(a)(3), and where a new bond is required, the permittee shall
24-20 not be eligible for a bond exemption under Section 204.01(f) until
24-21 36 months after the date on which the transfer takes effect.>
24-22 SECTION 31. Section 28.14, Alcoholic Beverage Code, is
24-23 amended to read as follows:
24-24 Sec. 28.14. Merger or Consolidation of Corporations Holding
24-25 Mixed Beverage Permits. When two or more corporations which have
24-26 substantially similar ownership and which hold mixed beverage
24-27 permits issued by the commission merge or consolidate and pay to
25-1 the commission a <$100> fee set by the commission for each licensed
25-2 premises, the surviving corporation shall succeed to all the
25-3 privileges of such corporations in the permits held by such
25-4 corporations provided the surviving corporation is qualified to
25-5 hold such permits under this code. For purposes of this section,
25-6 two corporations have substantially similar ownership if 90 percent
25-7 or more of both corporations is owned by the same persons.
25-8 SECTION 32. Chapter 28, Alcoholic Beverage Code, is amended
25-9 by adding Sections 28.15, 28.16, and 28.17 to read as follows:
25-10 Sec. 28.15. STAMPS. (a) A mixed beverage permittee may not
25-11 possess or permit a person to possess on the premises distilled
25-12 spirits in any container that does not bear a serially numbered
25-13 identification stamp issued by the commission or other
25-14 identification approved by the commission.
25-15 (b) A holder of a local distributor's permit may not
25-16 knowingly sell, ship, or deliver distilled spirits in any container
25-17 that does not bear a serially numbered identification stamp issued
25-18 by the commission or other identification approved by the
25-19 commission.
25-20 (c) Identification stamps may be issued only to a holder of
25-21 a local distributor's permit who shall affix the stamps as
25-22 prescribed by the commission or administrator.
25-23 Sec. 28.16. PERMIT INELIGIBILITY. A mixed beverage permit
25-24 may not be issued to:
25-25 (1) a person whose permit was canceled for a violation
25-26 of Section 28.06(c) of this code;
25-27 (2) a person who held an interest in a permit that was
26-1 canceled for a violation of Section 28.06(c) of this code;
26-2 (3) a person who held 50 percent or more of the stock,
26-3 directly or indirectly, of a corporation whose permit was canceled
26-4 for a violation of Section 28.06(c) of this code;
26-5 (4) a corporation, if a person holding 50 percent or
26-6 more of the corporation's stock, directly or indirectly, is
26-7 disqualified from obtaining a permit under Subdivision (3) of this
26-8 section; or
26-9 (5) a person who resides with a person who is barred
26-10 from obtaining a permit because of a violation of Section 28.06(c)
26-11 of this code.
26-12 Sec. 28.17. SUMMARY SUSPENSION. (a) The commission may
26-13 summarily suspend, without a hearing, the permit of a permittee who
26-14 fails to file a return or make a tax payment. The Administrative
26-15 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
26-16 Civil Statutes) does not apply to the commission in the enforcement
26-17 and administration of this section.
26-18 (b) A suspension under this section takes effect on the
26-19 third day after the date the notice of suspension is provided.
26-20 Notice of suspension shall be sent by registered or certified mail
26-21 to the permittee or the permittee's agent, servant, or employee if
26-22 not given in person.
26-23 (c) The commission shall terminate a suspension made under
26-24 this section when the permittee files all required returns and
26-25 makes all required tax payments, including payment of penalties
26-26 that are due.
26-27 SECTION 33. Section 32.09(b), Alcoholic Beverage Code, is
27-1 amended to read as follows:
27-2 (b) At the time of his admission the temporary member shall
27-3 pay the club a fee set by the commission <of $3,> which shall
27-4 represent the fee payable by the permittee to the state. All fees
27-5 and payments from temporary members shall be collected in cash or
27-6 through credit cards approved by the commission or administrator.
27-7 SECTION 34. Chapter 32, Alcoholic Beverage Code, is amended
27-8 by adding Sections 32.20, 32.21, and 32.22 to read as follows:
27-9 Sec. 32.20. STAMPS. (a) A private club registration
27-10 permittee may not possess or permit a person to possess on the
27-11 premises distilled spirits in any container that does not bear a
27-12 serially numbered identification stamp issued by the commission or
27-13 other identification approved by the commission.
27-14 (b) A holder of a local distributor's permit may not
27-15 knowingly sell, ship, or deliver distilled spirits in any container
27-16 that does not bear a serially numbered identification stamp issued
27-17 by the commission or other identification approved by the
27-18 commission.
27-19 (c) Identification stamps may be issued only to a holder of
27-20 a local distributor's permit who shall affix the stamps as
27-21 prescribed by the commission or administrator.
27-22 Sec. 32.21. PERMIT INELIGIBILITY. A private club
27-23 registration permit may not be issued to:
27-24 (1) a person whose permit was canceled for a violation
27-25 of Section 28.06(c) of this code;
27-26 (2) a person who held an interest in a permit that was
27-27 canceled for a violation of Section 28.06(c) of this code;
28-1 (3) a person who held 50 percent or more of the stock,
28-2 directly or indirectly, of a corporation whose permit was canceled
28-3 for a violation of Section 28.06(c) of this code;
28-4 (4) a corporation, if a person holding 50 percent or
28-5 more of the corporation's stock, directly or indirectly, is
28-6 disqualified from obtaining a permit under Subdivision (3) of this
28-7 section; or
28-8 (5) a person who resides with a person who is barred
28-9 from obtaining a permit because of a violation of Section 28.06(c)
28-10 of this code.
28-11 Sec. 32.22. SUMMARY SUSPENSION. (a) The commission may
28-12 summarily suspend, without a hearing, the permit of a permittee who
28-13 fails to file a return or make a tax payment. The Administrative
28-14 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
28-15 Civil Statutes) does not apply to the commission in the enforcement
28-16 and administration of this section.
28-17 (b) A suspension under this section takes effect on the
28-18 third day after the date the notice of suspension is given. The
28-19 notice of suspension shall be sent by registered or certified mail
28-20 to the permittee, the permittee's agent, servant, or employee if
28-21 not given in person.
28-22 (c) The commission shall terminate a suspension made under
28-23 this section when the permittee files all required returns and
28-24 makes all required tax payments, including payment of penalties
28-25 that are due.
28-26 SECTION 35. Section 37.11(e), Alcoholic Beverage Code, is
28-27 amended to read as follows:
29-1 (e) No certificate of approval shall be issued unless the
29-2 application is accompanied by a fee in the amount set by <of $25
29-3 payable to> the commission. A copy of the certificate shall be
29-4 kept on file in the office of the commission.
29-5 SECTION 36. Section 42.04, Alcoholic Beverage Code, is
29-6 amended by adding Subsection (d) to read as follows:
29-7 (d) A holder of a winery permit is exempt from the
29-8 requirements of this section for the transportation of its wine.
29-9 SECTION 37. Section 46.03, Alcoholic Beverage Code, is
29-10 amended to read as follows:
29-11 Sec. 46.03. Qualifications for Permit. (a) A bonded
29-12 warehouse permit may be issued to any public bonded warehouse that:
29-13 (1) <not located in a dry area which> derives at least
29-14 50 percent of its gross revenue in a bona fide manner during each
29-15 three-month period from the storage of goods or merchandise other
29-16 than liquor; and
29-17 (2) is not located in a dry area.
29-18 (b) A bonded warehouse permit may be issued to a public
29-19 bonded warehouse described by Subsection (a)(1) of this section
29-20 that is located in a dry area only for the storage of the wine of
29-21 the holder of a winery permit who holds a permit authorizing its
29-22 storage in a public bonded warehouse.
29-23 SECTION 38. Section 51.04(b), Alcoholic Beverage Code, is
29-24 amended to read as follows:
29-25 (b) A minibar may not be restocked or replenished during any
29-26 hours that a mixed beverage permittee may not sell alcoholic
29-27 beverages at the location as provided by Section 105.03 of this
30-1 code <between the hours of 9 p.m. and 9 a.m. or on any Sunday,> and
30-2 it may contain no more than 40 individual containers of alcoholic
30-3 beverages at any one time.
30-4 SECTION 39. Section 61.42(c), Alcoholic Beverage Code, is
30-5 amended to read as follows:
30-6 (c) The county judge, commission, or administrator shall
30-7 refuse to approve or issue for a period of one year a retail
30-8 dealer's on-premise license or a wine and beer retailer's permit
30-9 for a premises where a license or permit has <two licenses or
30-10 permits have> been canceled during the preceding 12 months as a
30-11 result of a shooting, stabbing, or other violent act, or as a
30-12 result of an offense involving drugs.
30-13 SECTION 40. Section 61.43, Alcoholic Beverage Code, is
30-14 amended to read as follows:
30-15 Sec. 61.43. Discretionary Grounds for Refusal: Distributor
30-16 or Retailer. The county judge may refuse to approve an application
30-17 for a license as a distributor or retailer if he has reasonable
30-18 grounds to believe and finds that:
30-19 (1) the applicant has been finally convicted in a
30-20 court of competent jurisdiction for the violation of a provision of
30-21 this code during the two years immediately preceding the filing of
30-22 his application;
30-23 (2) two years has not elapsed since the termination,
30-24 by pardon or otherwise, of a sentence imposed for conviction of a
30-25 felony;
30-26 (3) the applicant has violated or caused to be
30-27 violated a provision of this code or a rule or regulation of the
31-1 commission, for which a suspension was not imposed, during the
31-2 12-month period immediately preceding the filing of his
31-3 application;
31-4 (4) the applicant failed to answer or falsely or
31-5 incorrectly answered a question in his original or renewal
31-6 application;
31-7 (5) the applicant for a retail dealer's license does
31-8 not have an adequate building available at the address for which
31-9 the license is sought before conducting any activity authorized by
31-10 the license;
31-11 (6) the applicant or a person with whom he is
31-12 residentially domiciled had an interest in a license or permit
31-13 which was cancelled or revoked within the 12-month period
31-14 immediately preceding the filing of his application;
31-15 (7) the applicant failed or refused to furnish a true
31-16 copy of his application to the commission's district office in the
31-17 district in which the premises sought to be licensed are located;
31-18 (8) the premises on which beer is to be sold for
31-19 on-premises consumption does not have running water, if it is
31-20 available, or does not have separate free toilets for males and
31-21 females, properly identified, on the premises for which the license
31-22 is sought;
31-23 (9) the applicant for a retail dealer's license will
31-24 conduct his business in a manner contrary to law or in a place or
31-25 manner conducive to a violation of the law; or
31-26 (10) the place, building, or premises for which the
31-27 license is sought was used for selling alcoholic beverages in
32-1 violation of the law at any time during the six months immediately
32-2 preceding the filing of the application or was used, operated, or
32-3 frequented during that time for a purpose or in a manner which was
32-4 lewd, immoral, offensive to public decency, or contrary to this
32-5 code.
32-6 SECTION 41. Section 61.71(a), Alcoholic Beverage Code, is
32-7 amended to read as follows:
32-8 (a) The commission or administrator may suspend for not more
32-9 than 60 days or cancel an original or renewal retail dealer's on-
32-10 or off-premise license if it is found, after notice and hearing,
32-11 that the licensee:
32-12 (1) violated a provision of this code or a rule of the
32-13 commission during the existence of the license sought to be
32-14 cancelled or suspended or during the immediately preceding license
32-15 period;
32-16 (2) was finally convicted for violating a penal
32-17 provision of this code;
32-18 (3) was finally convicted of a felony while holding an
32-19 original or renewal license;
32-20 (4) made a false statement or a misrepresentation in
32-21 his original application or a renewal application;
32-22 (5) with criminal negligence <knowingly> sold, served,
32-23 or delivered beer to a minor;
32-24 (6) sold, served, or delivered beer to an intoxicated
32-25 person;
32-26 (7) sold, served, or delivered beer at a time when its
32-27 sale is prohibited;
33-1 (8) entered or offered to enter an agreement,
33-2 condition, or system which would constitute the sale or possession
33-3 of alcoholic beverages on consignment;
33-4 (9) possessed on the licensed premises, or on adjacent
33-5 premises directly or indirectly under his control, an alcoholic
33-6 beverage not authorized to be sold on the licensed premises, or
33-7 permitted an agent, servant, or employee to do so, except as
33-8 permitted by Section 22.06, 24.05, or 102.05 of this code;
33-9 (10) does not have at his licensed premises running
33-10 water, if it is available, and separate toilets for both sexes
33-11 which are properly identified;
33-12 (11) permitted a person on the licensed premises to
33-13 engage in conduct which is lewd, immoral, or offensive to public
33-14 decency;
33-15 (12) employed a person under 18 years of age to sell,
33-16 handle, or dispense beer, or to assist in doing so, in an
33-17 establishment where beer is sold for on-premises consumption;
33-18 (13) conspired with a person to violate Section
33-19 101.41-101.43, 101.68, 102.11-102.15, 104.04, 108.01, or
33-20 108.04-108.06 of this code, or a rule promulgated under Section
33-21 5.40 of this code, or accepted a benefit from an act prohibited by
33-22 any of these sections or rules;
33-23 (14) refused to permit or interfered with an
33-24 inspection of the licensed premises by an authorized representative
33-25 of the commission or a peace officer;
33-26 (15) permitted the use or display of his license in
33-27 the conduct of a business for the benefit of a person not
34-1 authorized by law to have an interest in the license;
34-2 (16) maintained blinds or barriers at his place of
34-3 business in violation of this code;
34-4 (17) conducted his business in a place or manner which
34-5 warrants the cancellation or suspension of the license based on the
34-6 general welfare, health, peace, morals, safety, and sense of
34-7 decency of the people;
34-8 (18) consumed an alcoholic beverage or permitted one
34-9 to be consumed on the licensed premises at a time when the
34-10 consumption of alcoholic beverages is prohibited by this code;
34-11 (19) purchased beer for the purpose of resale from a
34-12 person other than the holder of a manufacturer's or distributor's
34-13 license;
34-14 (20) acquired an alcoholic beverage for the purpose of
34-15 resale from another retail dealer of alcoholic beverages;
34-16 (21) owned an interest of any kind in the business or
34-17 premises of the holder of a distributor's license;
34-18 (22) purchased, sold, offered for sale, distributed,
34-19 or delivered an alcoholic beverage, or consumed an alcoholic
34-20 beverage or permitted one to be consumed on the licensed premises
34-21 while his license was under suspension;
34-22 (23) purchased, possessed, stored, sold, or offered
34-23 for sale beer in or from an original package bearing a brand or
34-24 trade name of a manufacturer other than the brand or trade name
34-25 shown on the container;
34-26 (24) habitually uses alcoholic beverages to excess, is
34-27 mentally incompetent, or is physically unable to manage his
35-1 establishment;
35-2 (25) imported beer into this state except as
35-3 authorized by Section 107.07 of this code;
35-4 (26) occupied premises in which the holder of a
35-5 manufacturer's or distributor's license had an interest of any
35-6 kind;
35-7 (27) knowingly permitted a person who had an interest
35-8 in a permit or license which was cancelled for cause to sell,
35-9 handle, or assist in selling or handling alcoholic beverages on the
35-10 licensed premises within one year after the cancellation;
35-11 (28) was financially interested in a place of business
35-12 engaged in the selling of distilled spirits or permitted a person
35-13 having an interest in that type of business to have a financial
35-14 interest in the business authorized by his license, except as
35-15 permitted by Section 22.06, 24.05, or 102.05 of this code;
35-16 (29) is residentially domiciled with or related to a
35-17 person engaged in selling distilled spirits, except as permitted by
35-18 Section 22.06, 24.05, or 102.05 of this code, so that there is a
35-19 community of interests which the commission or administrator finds
35-20 contrary to the purposes of this code; or
35-21 (30) is residentially domiciled with or related to a
35-22 person whose license has been cancelled within the preceding 12
35-23 months so that there is a community of interests which the
35-24 commission or administrator finds contrary to the purposes of this
35-25 code.
35-26 SECTION 42. Section 61.74(a), Alcoholic Beverage Code, is
35-27 amended to read as follows:
36-1 (a) The commission or administrator may suspend for not more
36-2 than 60 days or cancel an original or renewal general, local, or
36-3 branch distributor's license if it is found, after notice and
36-4 hearing, that the licensee:
36-5 (1) violated a provision of this code or a rule of the
36-6 commission during the existence of the license sought to be
36-7 cancelled or suspended or during the immediately preceding license
36-8 period;
36-9 (2) was finally convicted for violating a penal
36-10 provision of this code;
36-11 (3) was finally convicted of a felony while holding an
36-12 original or renewal license;
36-13 (4) violated Section 101.41-101.43, 101.68,
36-14 102.11-102.15, 104.04, 108.01, or 108.04-108.06 of this code, or a
36-15 rule or regulation promulgated under Section 5.40 of this code;
36-16 (5) failed to comply with a requirement of the
36-17 commission relating to the keeping of records or making of reports;
36-18 (6) failed to pay any tax due the state on any beer he
36-19 sold, stored, or transported;
36-20 (7) refused to permit or interfered with an inspection
36-21 of his licensed premises, vehicles, books, or records by an
36-22 authorized representative of the commission;
36-23 (8) consummated a sale of beer outside the county or
36-24 counties in which he was authorized to sell beer by his license;
36-25 (9) purchased, sold, offered for sale, distributed, or
36-26 delivered beer while his license was under suspension;
36-27 (10) permitted the use of his license in the operation
37-1 of a business conducted for the benefit of a person not authorized
37-2 by law to have an interest in the business;
37-3 (11) made a false or misleading representation or
37-4 statement in his original application or a renewal application;
37-5 (12) habitually uses alcoholic beverages to excess, is
37-6 mentally incompetent, or is physically unable to manage his
37-7 establishment;
37-8 (13) misrepresented any beer sold by him to a retailer
37-9 or to the public;
37-10 (14) with criminal negligence <knowingly> sold or
37-11 delivered beer to a minor; or
37-12 (15) purchased, possessed, stored, sold, or offered
37-13 for sale beer in an original package bearing a brand or trade name
37-14 of a manufacturer other than the brand or trade name of the
37-15 manufacturer shown on the container.
37-16 SECTION 43. Section 61.75, Alcoholic Beverage Code, is
37-17 amended to read as follows:
37-18 Sec. 61.75. Suspension of Manufacturer's License. If a
37-19 manufacturer violates a provision of this code or a rule of the
37-20 commission, the commission or administrator may order the
37-21 manufacturer to cease and desist from the violation and may suspend
37-22 its license, after notice and hearing<, until the licensee obeys
37-23 the order>.
37-24 SECTION 44. Section 63.02, Alcoholic Beverage Code, is
37-25 amended to read as follows:
37-26 Sec. 63.02. No County or City Fee. <The annual state fee
37-27 for a nonresident manufacturer's license is $750.> No county or
38-1 city is entitled to a fee for the issuance of the license.
38-2 SECTION 45. Section 69.03, Alcoholic Beverage Code, is
38-3 amended to read as follows:
38-4 Sec. 69.03. Issuance of License for Railway Cars. A retail
38-5 dealer's on-premise license may be issued for a railway dining,
38-6 buffet, or club car. Application for a license of this type shall
38-7 be made directly to the commission<,> and accompanied by a fee set
38-8 by the commission <the annual state fee is $30 for each car>.
38-9 SECTION 46. Chapter 71, Alcoholic Beverage Code, is amended
38-10 by adding Section 71.11 to read as follows:
38-11 Sec. 71.11. TEMPORARY RETAIL DEALER'S OFF-PREMISES LICENSE.
38-12 (a) On application for a retail dealer's off-premises license,
38-13 application for a temporary retail dealer's off-premises license,
38-14 and payment of the required fees including a fee for the temporary
38-15 license as set by the commission, the commission may issue a
38-16 temporary retail dealer's off-premises license to a person who has
38-17 entered into a contract to purchase a premises from a holder of a
38-18 retail dealer's off-premises license and a package store permit.
38-19 (b) Unless revoked or cancelled by the commission, a
38-20 temporary retail dealer's off-premises license is valid only during
38-21 the period that the application for a retail dealer's off-premises
38-22 license is being considered by the commission and county judge
38-23 ending on the day that the retail dealer's off-premises license is
38-24 issued or denied.
38-25 (c) The holder of a temporary retail dealer's off-premises
38-26 license has all of the rights, privileges, and duties of a holder
38-27 of a retail dealer's off-premises license.
39-1 SECTION 47. Section 101.67(d), Alcoholic Beverage Code, is
39-2 amended to read as follows:
39-3 (d) If the commission determines that the sample and label
39-4 required by Subsection (a) of this section comply with the
39-5 provisions of this code and the rules of the commission, the
39-6 commission shall issue a certificate of approval upon receipt of a
39-7 fee set by the commission <in the amount of $25>. A copy of the
39-8 certificate shall be kept on file in the office of the commission.
39-9 SECTION 48. Subchapter A, Chapter 102, Alcoholic Beverage
39-10 Code, is amended by adding Section 102.02 to read as follows:
39-11 Sec. 102.02. PROVIDING SAMPLES. Notwithstanding any other
39-12 provision of this code, the holder of a wholesaler's permit or the
39-13 holder's agent, representative, or employee may furnish or give a
39-14 sample of liquor to a holder of a permit authorizing the sale of
39-15 that category of alcoholic beverage at retail if the retail
39-16 permittee has not previously purchased that brand from that
39-17 wholesaler permittee. The wholesaler may give the retail permittee
39-18 not more than 750 milliliters of any brand of distilled spirits,
39-19 not more than three liters of any brand of wine in that package,
39-20 and not more than one six-pack of any other alcoholic beverage so
39-21 packaged. The retail permittee or the permittee's agent, servant,
39-22 or employee may sample the product on the licensed premises only if
39-23 the wholesaler or the wholesaler's agent, servant, or employee is
39-24 present.
39-25 SECTION 49. Sections 102.07(a), (b), and (d), Alcoholic
39-26 Beverage Code, are amended to read as follows:
39-27 (a) Except as provided in Subsections <Subsection> (b) and
40-1 (d) of this section, no person who owns or has an interest in the
40-2 business of a distiller, brewer, rectifier, wholesaler, class B
40-3 wholesaler, winery, or wine bottler, nor the agent, servant, or
40-4 employee of such a person, may:
40-5 (1) own or have a direct or indirect interest in the
40-6 business, premises, equipment, or fixtures of a retailer;
40-7 (2) furnish, give, or lend any money or<,> service<,
40-8 or thing of value> to a retailer;
40-9 (3) guarantee a financial obligation of a retailer;
40-10 (4) make or offer to enter an agreement, condition, or
40-11 system which will in effect amount to the shipment and delivery of
40-12 alcoholic beverages on consignment;
40-13 (5) furnish, give, rent, lend, or sell to a retail
40-14 dealer any equipment, fixtures, or supplies to be used in selling
40-15 or dispensing alcoholic beverages, except that alcoholic beverages
40-16 may be packaged in combination with other items if the package is
40-17 designed to be delivered intact to the ultimate consumer and the
40-18 additional items have no value or benefit to the retailer other
40-19 than that of having the potential of attracting purchases and
40-20 promoting sales;
40-21 (6) pay or make an allowance to a retailer for a
40-22 special advertising or distribution service;
40-23 (7) allow an excessive discount to a retailer;
40-24 (8) offer a prize, premium, gift, or similar
40-25 inducement to a retailer <or consumer> or to the agent, servant, or
40-26 employee of a retailer <either>.
40-27 (b) A permittee covered by Subsection (a) of this section
41-1 may furnish to a retailer without cost advertising specialties
41-2 showing the name of the product advertised. The total value of all
41-3 advertising specialties for any one brand furnished to a retailer
41-4 in any one calendar year may not exceed $78. Not more than once a
41-5 year, the administrator on the administrator's own motion or on the
41-6 motion of the permittee may increase or decrease the total amount
41-7 of advertising specialties permitted under this subsection by not
41-8 more than six percent based on the consumer price index and
41-9 previous adjustments, if any. For the purposes of this subsection,
41-10 "consumer price index" means the annual average over a calendar
41-11 year of the consumer price index (all items, United States city
41-12 average) published monthly by the Bureau of Labor Statistics,
41-13 United States Department of Labor, or its successor in function.
41-14 Permittees covered by Subsection (a) of this section may not pool
41-15 or combine their dollar limitations to provide a retailer with
41-16 advertising specialties valued in excess of the maximum permitted
41-17 under this subsection <recipes, recipe books, book matches,
41-18 cocktail napkins, or other advertising items showing the name of
41-19 the permittee furnishing the items or the brand name of the product
41-20 advertised if the individual cost of the items does not exceed 25
41-21 cents>.
41-22 (d) A permittee covered under Subsection (a) of this section
41-23 may offer coupons, prizes, premiums, or gifts to a consumer if the
41-24 offer is national in scope and offered in 30 states or more <The
41-25 holder of a winery permit may furnish to a retailer without cost
41-26 recipes, recipe books, book matches, cocktail napkins, or other
41-27 advertising items showing the name of the winery furnishing the
42-1 items or the brand name of the product advertised if the individual
42-2 cost of the items does not exceed $1>.
42-3 SECTION 50. Subchapter A, Chapter 102, Alcoholic Beverage
42-4 Code, is amended by adding Section 102.19 to read as follows:
42-5 Sec. 102.19. RESTOCKING AND ROTATION OF ALCOHOLIC BEVERAGES
42-6 AUTHORIZED. Restocking of a display and rotation of alcoholic
42-7 beverage stock in a retail establishment from the retailer's
42-8 storeroom, salesroom, display counter, or cooler by a
42-9 representative of a wholesaler or distributor is lawful. The
42-10 commission or administrator may publish guidelines regarding this
42-11 activity as the commission or administrator determines to be
42-12 necessary.
42-13 SECTION 51. Chapter 104, Alcoholic Beverage Code, is amended
42-14 by adding Section 104.05 to read as follows:
42-15 Sec. 104.05. SALE IN ORIGINAL PACKAGING. (a) This section
42-16 applies to a permittee or licensee who is authorized to sell beer,
42-17 malt liquor, or ale to an ultimate consumer for consumption off the
42-18 permitted or licensed premises.
42-19 (b) The holder of a permit or license described in
42-20 Subsection (a) of this section may resell beer, malt liquor, or ale
42-21 only in the packaging in which the holder received the beer, malt
42-22 liquor, or ale or may resell the contents of the packages as
42-23 individual containers.
42-24 (c) Except for purposes of resale as individual containers,
42-25 a licensee or permittee may not:
42-26 (1) mutilate, tear apart, or cut apart original
42-27 packaging in which beer, malt liquor, or ale was received; or
43-1 (2) repackage beer, malt liquor, or ale in a manner
43-2 misleading to the consumer or that results in required labeling
43-3 being omitted or obscured.
43-4 (d) Claims for breakage, shortage, or damage to an alcoholic
43-5 beverage shall be made to the retailer at the time of delivery.
43-6 Except as provided by Subsection (e) of this section, a claim is
43-7 not allowed after delivery.
43-8 (e) To assure and control product quality, the holder of a
43-9 distributor's license, wholesaler's permit, or class B wholesaler's
43-10 permit, at the time of a regular delivery, may withdraw, with the
43-11 permission of the retailer, a quantity of beer, ale, or malt liquor
43-12 in its undamaged original packaging from the retailer's stock, if:
43-13 (1) the distributor, wholesaler, or class B wholesaler
43-14 replaces the stock with beer, ale, or malt liquor of identical
43-15 brands, quantities, and packages as the beer, ale, or malt liquor
43-16 withdrawn;
43-17 (2) the stock is withdrawn before the date considered
43-18 by the manufacturer of the product to be the date the product
43-19 becomes inappropriate for sale to a consumer; and
43-20 (3) the quantity of stock withdrawn does not exceed
43-21 the equivalent of 15 cases of 24 12-ounce containers.
43-22 (f) A consignment sale of an alcoholic beverage is not
43-23 authorized under Subsection (e) of this section.
43-24 SECTION 52. Section 105.02(a), Alcoholic Beverage Code, is
43-25 amended to read as follows:
43-26 (a) Except as provided by Subsection (b) of this section, a
43-27 wholesaler or a local distributor's permittee may sell, offer for
44-1 sale, or deliver liquor with a prior order to a retailer at any
44-2 convenient time <between 7 a. m. and 9 p. m.> on any day except
44-3 Sunday and Christmas Day.
44-4 SECTION 53. Section 106.06(a), Alcoholic Beverage Code, is
44-5 amended to read as follows:
44-6 (a) Except as provided in Subsection (b) of this section, a
44-7 person commits an offense if he purchases an alcoholic beverage for
44-8 or gives or with criminal negligence <knowingly> makes available an
44-9 alcoholic beverage to a minor.
44-10 SECTION 54. Section 106.13(a), Alcoholic Beverage Code, is
44-11 amended to read as follows:
44-12 (a) Except as provided in Subsections (b) and (c) of this
44-13 section, the commission or administrator may cancel or suspend for
44-14 not more than 60 days a retail license or permit or a private club
44-15 registration permit if it is found, on notice and hearing, that the
44-16 licensee or permittee with criminal negligence <knowingly> sold,
44-17 served, dispensed, or delivered an alcoholic beverage to a minor in
44-18 violation of this code or with criminal negligence <knowingly>
44-19 permitted a minor to violate Section 106.04 or 106.05 of this code
44-20 on the licensed premises.
44-21 SECTION 55. Chapter 107, Alcoholic Beverage Code, is amended
44-22 by adding Sections 107.09 and 107.10 to read as follows:
44-23 Sec. 107.09. SINGLE INVOICE AUTHORIZED. If the holder of a
44-24 general, local, or branch distributor's license also holds a
44-25 wholesaler's, general class B wholesaler's, or local class B
44-26 wholesaler's permit, a written statement or invoice required as
44-27 evidence of the sale of beer or liquor may be on the same business
45-1 form that is designed to reflect the sale of both liquor and beer,
45-2 if all information required by this code to be shown on a statement
45-3 or invoice is reflected on the form and all other records required
45-4 by this code are maintained.
45-5 Sec. 107.10. TRANSPORTATION OF WINE COOLERS OR SPIRIT
45-6 COOLERS. (a) A holder of a wholesaler's, general class B
45-7 wholesaler's, or local class B wholesaler's permit may transport
45-8 and sell wine coolers without further authorization if the holder
45-9 complies with the provisions of this code and rules of the
45-10 commission applicable to the transportation and sale of beer by a
45-11 holder of a distributor's license.
45-12 (b) A holder of a wholesaler's permit may transport and sell
45-13 spirit coolers without further authorization if the holder complies
45-14 with the provisions of this code and rules of the commission
45-15 applicable to the transportation and sale of beer by a holder of a
45-16 distributor's license.
45-17 SECTION 56. Section 108.03, Alcoholic Beverage Code, is
45-18 amended to read as follows:
45-19 Sec. 108.03. Regulation of Promotional Activities. The
45-20 commission shall adopt rules permitting and regulating the use of
45-21 business cards, menu cards, stationery, service vehicles and
45-22 equipment, and delivery vehicles and equipment that bear alcoholic
45-23 beverage advertising. The commission shall also adopt rules
45-24 permitting and regulating the use of insignia advertising beer,
45-25 distilled spirits, or wine by brand name on caps, regalia, or
45-26 uniforms worn by employees of manufacturers, <or> distributors,
45-27 distillers, or wineries or by participants in a game, sport,
46-1 athletic contest, or revue if the participants are sponsored by a
46-2 manufacturer, <or> distributor, distiller, or winery.
46-3 SECTION 57. Section 109.02, Alcoholic Beverage Code, is
46-4 amended to read as follows:
46-5 Sec. 109.02. Registration of Beverages With Commission.
46-6 Immediately after taking possession of the alcoholic beverages, the
46-7 insurer or insurance salvor shall register them with the
46-8 commission, furnishing the commission a detailed inventory and the
46-9 exact location of the beverages. At the time of registration, the
46-10 registrant shall post with the commission a surety bond in an
46-11 amount that the administrator finds adequate to protect the state
46-12 against the taxes due on the beverages, if any are due. The
46-13 registrant shall remit with the registration a fee set by the
46-14 commission <of $10>. The fee only permits the sale of the
46-15 beverages listed in the registration.
46-16 SECTION 58. Subchapter A, Chapter 109, Alcoholic Beverage
46-17 Code, is amended by adding Section 109.08 to read as follows:
46-18 Sec. 109.08. EXCLUSION. Notwithstanding any other provision
46-19 of this code, a distiller, brewer, manufacturer, winery, or other
46-20 manufacturing level producer of liquor or beer, or wholesalers of
46-21 the distiller, brewer, manufacturer, winery, or other manufacturing
46-22 level producer, may not directly, indirectly, or through an
46-23 affiliate require, by agreement or otherwise, that a retailer
46-24 engaged in the sale of liquor or beer purchase liquor or beer
46-25 exclusively or partially from the distiller, brewer, manufacturer,
46-26 winery, or other manufacturing level producer or restrict the
46-27 retailer from purchasing liquor or beer from other manufacturers or
47-1 distributors.
47-2 SECTION 59. Subchapter D, Chapter 109, Alcoholic Beverage
47-3 Code, is amended by adding Sections 109.531 and 109.532 to read as
47-4 follows:
47-5 Sec. 109.531. ADDITIONAL REQUIREMENTS FOR APPLICATION OR
47-6 RENEWAL OF PERMIT OR LICENSE BY OUT-OF-STATE RESIDENTS. In
47-7 addition to any other requirement for a license or permit under
47-8 this code, a person who has not been a citizen of this state for a
47-9 period of three years preceding the date the person filed an
47-10 application for a permit or license under Chapters 25-34, 44,
47-11 48-51, or 69-72 of this code shall:
47-12 (1) designate an agent, who is a citizen of this
47-13 state, to represent the person in matters before the commission and
47-14 to be responsible for the proper conduct of any activity of the
47-15 licensee or permittee; and
47-16 (2) submit to a criminal history background check.
47-17 Sec. 109.532. CRIMINAL HISTORY BACKGROUND CHECKS. (a) The
47-18 commission shall establish a uniform method of obtaining criminal
47-19 history information. The uniform method must require:
47-20 (1) either a complete set of fingerprints or the
47-21 complete name of the person being investigated to be submitted to
47-22 the Department of Public Safety or to another law enforcement
47-23 agency; and
47-24 (2) if fingerprints are submitted, the fingerprints
47-25 must be submitted to the Federal Bureau of Investigation for
47-26 further information if a relevant disqualifying record or other
47-27 substantive information is not obtained from a state or local law
48-1 enforcement agency.
48-2 (b) The commission may deny a license or permit or the
48-3 renewal of a license or permit for an applicant if:
48-4 (1) the commission determines that a previous criminal
48-5 conviction or deferred adjudication indicates that the applicant is
48-6 not qualified or suitable for a license or permit; or
48-7 (2) the applicant fails to provide a complete set of
48-8 fingerprints if the commission establishes that method of obtaining
48-9 conviction information.
48-10 (c) All criminal history information received by the
48-11 commission is privileged information and is for the exclusive use
48-12 of the commission. The information may be released or otherwise
48-13 disclosed to any other person or agency only:
48-14 (1) on court order; or
48-15 (2) with the consent of the person being investigated.
48-16 (d) The commission shall collect and destroy criminal
48-17 history information relating to a person immediately after the
48-18 commission makes a decision on the eligibility of the person for
48-19 registration.
48-20 (e) A person commits an offense if the person releases or
48-21 discloses in violation of this section criminal history information
48-22 received by the commission. An offense under this subsection is a
48-23 felony of the second degree.
48-24 (f) The commission may charge a fee to cover the cost of a
48-25 criminal history background check.
48-26 SECTION 60. Subchapter D, Chapter 109, Alcoholic Beverage
48-27 Code, is amended by adding Section 109.58 to read as follows:
49-1 Sec. 109.58. RELAXATION OF RESTRICTIONS AS TO CHARITABLE
49-2 EVENTS. The commission by rule may set definite limitations
49-3 consistent with the general provisions of this code that relax the
49-4 restrictions of this code with respect to the making of a gift to
49-5 civic, religious, or charitable organizations by the liquor
49-6 industry.
49-7 SECTION 61. Subchapter A, Chapter 201, Alcoholic Beverage
49-8 Code, is amended by adding Section 201.011 to read as follows:
49-9 Sec. 201.011. TIMELY FILING: DILIGENCE. A person filing a
49-10 report or making a tax payment complies with the filing
49-11 requirements for timeliness for a report not filed or a payment not
49-12 made on time if the person exercised reasonable diligence to comply
49-13 with the filing requirements and the failure to file or the making
49-14 of a late payment is not the fault of the person.
49-15 SECTION 62. Subchapter A, Chapter 201, Alcoholic Beverage
49-16 Code, is amended by adding Section 201.075 to read as follows:
49-17 Sec. 201.075. SUMMARY SUSPENSION. (a) The commission may
49-18 summarily suspend, without a hearing, the permit of a permittee who
49-19 fails to file a report or return or to make a tax payment required
49-20 by this subchapter. The Administrative Procedure and Texas
49-21 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) does
49-22 not apply to the commission in the enforcement and administration
49-23 of this section.
49-24 (b) A suspension under this section takes effect on the
49-25 third day after the date the notice of suspension is given. The
49-26 notice shall be given to the permittee or the permittee's agent or
49-27 employee by registered or certified mail if not given in person.
50-1 (c) The commission shall terminate a suspension made under
50-2 this section when the permittee files all required returns and
50-3 makes all required tax payments that are due.
50-4 SECTION 63. Subchapter B, Chapter 201, Alcoholic Beverage
50-5 Code, is amended by adding Section 201.53 to read as follows:
50-6 Sec. 201.53. SUMMARY SUSPENSION. (a) The commission may
50-7 summarily suspend, without a hearing, the permit of a permittee who
50-8 fails to file a report or return or to make a tax payment required
50-9 by this subchapter. The Administrative Procedure and Texas
50-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) does
50-11 not apply to the commission in the enforcement and administration
50-12 of this section.
50-13 (b) A suspension under this section takes effect on the
50-14 third day after the date the notice of suspension is given. The
50-15 notice shall be given to the permittee or the permittee's agent or
50-16 employee by registered or certified mail if not given in person.
50-17 (c) The commission shall terminate a suspension made under
50-18 this section when the permittee files all required returns and
50-19 makes all required tax payments that are due.
50-20 SECTION 64. Chapter 203, Alcoholic Beverage Code, is amended
50-21 by adding Section 203.13 to read as follows:
50-22 Sec. 203.13. SUMMARY SUSPENSION. (a) The commission may
50-23 summarily suspend, without a hearing, the permit of a permittee who
50-24 fails to file a report or return or to make a tax payment required
50-25 by this subchapter. The Administrative Procedure and Texas
50-26 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) does
50-27 not apply to the commission in the enforcement and administration
51-1 of this section.
51-2 (b) A suspension under this section takes effect on the
51-3 third day after the date the notice of suspension is given. The
51-4 notice shall be given to the permittee or the permittee's agent or
51-5 employee by registered or certified mail if not given in person.
51-6 (c) The commission shall terminate a suspension made under
51-7 this section when the permittee files all required returns and
51-8 makes all required tax payments that are due.
51-9 SECTION 65. Sections 204.01(a), (b), (c), (d), (f), (g),
51-10 (h), and (i), Alcoholic Beverage Code, are amended to read as
51-11 follows:
51-12 (a) Except as otherwise provided in this section, the
51-13 following licensees and permittees shall furnish a bond:
51-14 (1) those authorized to import alcoholic beverages
51-15 into the state;
51-16 (2) manufacturers of beer and brewers of ale or malt
51-17 liquor in the state; and
51-18 (3) <permittees subject to the gross receipts tax on
51-19 mixed beverages imposed by Section 202.02 of this code; and>
51-20 <(4)> all other permittees.
51-21 (b) No bond is required of a holder of a mixed beverage,
51-22 private club registration, carriers, local cartage, wine and beer
51-23 retailers, nonresident seller's, manufacturer's agent's, or agent's
51-24 permit.
51-25 (c) No bond is required of a retail licensee or permittee
51-26 who is not responsible for the primary payment of an alcoholic
51-27 beverage excise tax to this state. <This subsection does not
52-1 exempt permittees subject to the gross receipts tax on mixed
52-2 beverages imposed by Section 202.02 of this code.>
52-3 (d) The <A permittee required to furnish a bond to secure
52-4 the payment of the gross receipts tax on mixed beverages, the>
52-5 holder of a wholesaler's or class B wholesaler's permit, or the
52-6 holder of a distributor's license may furnish, in lieu of all or
52-7 part of the amount of the bond required:
52-8 (1) one or more certificates of deposit or savings
52-9 assigned to the state, issued by one or more banks or savings
52-10 institutions authorized to do business in this state; or
52-11 (2) one or more letters of credit issued by one or
52-12 more banks or savings institutions authorized to do business in
52-13 this state.
52-14 (f) The <A permittee subject to the gross receipts tax on
52-15 mixed beverages imposed by Section 202.02 of this code, the> holder
52-16 of a wholesaler's or class B wholesaler's permit, or the holder of
52-17 a distributor's license is not required to furnish a bond if for
52-18 the preceding 36 months the permittee or licensee has paid all
52-19 taxes and fees required by this code on or before the due date. <A
52-20 finding of deficiency under Section 202.09 of this code does not
52-21 constitute a failure to pay a tax when due for purposes of this
52-22 subsection or Subsection (g) or (h) of this section if the
52-23 deficiency and any applicable penalty are paid within 10 days of
52-24 the date of demand for payment by the commission.>
52-25 (g) An exemption under Subsection (f) of this section
52-26 terminates and the permittee or licensee must furnish a bond or tax
52-27 security if the permittee or licensee fails to pay a tax or fee
53-1 imposed by this code on or before the due date.
53-2 (h) A permittee or licensee required to furnish a bond or
53-3 tax security under Subsection (g) of this section is again entitled
53-4 to exemption from the surety requirement if the permittee or
53-5 licensee:
53-6 (1) pays all delinquent taxes and fees and any
53-7 applicable penalties; and
53-8 (2) pays all taxes and fees required by this code on
53-9 or before the due date for 18 consecutive months after the month in
53-10 which the delinquent taxes and fees and the penalties are paid.
53-11 (i) A permittee or licensee who qualifies for an exemption
53-12 under Subsection (f) of this section is also exempt from the
53-13 bonding requirement for any other <mixed beverage permit,>
53-14 wholesaler's permit, class B wholesaler's permit, or distributor's
53-15 license currently held by or subsequently issued to the same
53-16 permittee or licensee for use at licensed premises different from
53-17 and additional to those covered by the permit or license under
53-18 which the permittee or licensee qualified for exemption. However,
53-19 if a permittee or licensee fails to pay a tax or fee imposed by
53-20 this code on or before the due date and the permittee or licensee
53-21 holds multiple permits or licenses, the requirement for a bond or
53-22 tax security shall be imposed or reimposed under Subsection (g) of
53-23 this section only on the permit or license covering the licensed
53-24 premises for which the tax or fee and any applicable penalty were
53-25 not timely paid.
53-26 SECTION 66. Section 204.03(d), Alcoholic Beverage Code, is
53-27 amended to read as follows:
54-1 (d) Bonds, letters of credit, or certificates of deposit to
54-2 insure the payment of the tax on distilled spirits imposed by
54-3 Section 201.03 of this code, the tax on vinous liquor imposed by
54-4 Section 201.04 of this code, the tax on ale and malt liquor imposed
54-5 by Section 201.42 of this code, or the tax on beer imposed by
54-6 Section 203.01 of this code, shall be set at an amount that will
54-7 protect the state against the anticipated tax liability of the
54-8 principal for any six-week period.
54-9 SECTION 67. Chapter 204, Alcoholic Beverage Code, is amended
54-10 by adding Section 204.06 to read as follows:
54-11 Sec. 204.06. COMPREHENSIVE WINERY BOND. A person who holds
54-12 both a winery permit and a wine bottler's permit may execute a
54-13 single bond in an amount determined by the commission instead of
54-14 multiple bonds to secure the performance of different activities by
54-15 the holder.
54-16 SECTION 68. Sections 206.01(a) and (b), Alcoholic Beverage
54-17 Code, are amended to read as follows:
54-18 (a) A permittee who distills, rectifies, manufactures, or
54-19 receives any liquor shall make and keep a record of each day's
54-20 production or receipt of liquor and the amount of tax stamps
54-21 purchased by the permittee. A permittee other than a retailer
54-22 shall make and keep a record of each sale of liquor and to whom the
54-23 sale is made. Each transaction shall be entered on the day it
54-24 occurs. Permittees shall make and keep any other records required
54-25 by the commission. All required records shall be kept available
54-26 for inspection by the commission or its authorized representatives
54-27 for at least four <two> years.
55-1 (b) No person may fail or refuse to make and retain for at
55-2 least four <two> years any record required by this section.
55-3 SECTION 69. Chapter 206, Alcoholic Beverage Code, is amended
55-4 by adding Sections 206.08 and 206.09 to read as follows:
55-5 Sec. 206.08. COORDINATION OF AUDITS. (a) Before the agency
55-6 responsible for collecting a tax makes a demand to a licensee or
55-7 permittee for any taxes due, as established by an audit, the agency
55-8 shall:
55-9 (1) hold an informal conference with the licensee or
55-10 permittee to discuss the audit and the rights of the permittee or
55-11 licensee to both an informal and formal appeal of the taxes due;
55-12 (2) review the audit in the agency headquarters with
55-13 the office of quality control to ensure that the uniform
55-14 application of audit standards has been applied in all aspects to
55-15 the audit; and
55-16 (3) send a certified letter stating the amount of
55-17 taxes owed by the licensee or permittee, the amount of the
55-18 delinquency, and the proper procedure to appeal the decision.
55-19 (b) On issuance or renewal of a mixed beverage permit or a
55-20 private club registration permit, the agency responsible for
55-21 collecting a tax shall provide in writing to the permittee
55-22 information on the permittee's rights to appeal an audit, the
55-23 address of the auditing agency's office of quality control, and a
55-24 telephone number of the entity where a permittee may direct
55-25 questions regarding tax matters or audits.
55-26 (c) The agency responsible for collecting a tax shall
55-27 annually update and review all audit manuals to ensure compliance
56-1 with national audit standards and impartiality and provide audit
56-2 training to auditors responsible for auditing tax accounts. The
56-3 agency may expend funds necessary to ensure adequate training of
56-4 agency auditors or trainers to provide the standardization of
56-5 audits throughout the state.
56-6 Sec. 206.09. CONTESTS OF TAXABLE AMOUNTS OWED. (a) A
56-7 licensee or permittee contesting the amount of taxes owed, after
56-8 receiving a demand for payment of taxes due from the agency
56-9 responsible for collecting a tax, is entitled to a hearing under
56-10 the Administrative Procedure and Texas Register Act (Article
56-11 6252-13a, Vernon's Texas Civil Statutes).
56-12 (b) An appeal from a final order issued by the agency
56-13 responsible for collecting a tax owed must be filed in Travis
56-14 County.
56-15 SECTION 70. Section 13.09, State Purchasing and General
56-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
56-17 amended to read as follows:
56-18 Sec. 13.09. Application. The state agencies subject to this
56-19 article are:
56-20 (1) the Texas Department of Mental Health and Mental
56-21 Retardation;
56-22 (2) the Texas Department of Human Services;
56-23 (3) the Texas Department of Criminal Justice;
56-24 (4) the Department of Agriculture;
56-25 (5) the Central Education Agency;
56-26 (6) the Texas Higher Education Coordinating Board;
56-27 (7) the State Department of Highways and Public
57-1 Transportation;
57-2 (8) the Texas Alcoholic Beverage Commission; and
57-3 (9) <(8)> the commission.
57-4 SECTION 71. Subtitle G, Title 2, Tax Code, is amended by
57-5 adding Chapter 183 to read as follows:
57-6 CHAPTER 183. MIXED BEVERAGE TAX
57-7 SUBCHAPTER A. GENERAL PROVISIONS
57-8 Sec. 183.001. DEFINITIONS. (a) The definitions in Section
57-9 1.04, Alcoholic Beverage Code, apply to this chapter.
57-10 (b) In this chapter:
57-11 (1) "Permittee" means a mixed beverage permittee or a
57-12 private club registration permittee.
57-13 (2) "Business day" means the period beginning at
57-14 3 a.m. one day and ending at 3 a.m. the next day.
57-15 Sec. 183.002. APPLICATION OF CONFIDENTIALITY PROVISION.
57-16 Section 111.006 does not apply to this chapter.
57-17 SUBCHAPTER B. MIXED BEVERAGE TAX
57-18 Sec. 183.021. TAX IMPOSED ON MIXED BEVERAGES. A tax at the
57-19 rate of 14 percent is imposed on the gross receipts of a permittee
57-20 received from the sale, preparation, or service of mixed beverages
57-21 or from the sale, preparation, or service of ice or nonalcoholic
57-22 beverages that are sold, prepared, or served for the purpose of
57-23 being mixed with an alcoholic beverage and consumed on the premises
57-24 of the permittee.
57-25 Sec. 183.022. TAX RETURN DUE DATE. (a) A permittee shall
57-26 file a sworn tax return with the comptroller not later than the
57-27 20th day of each month.
58-1 (b) The return under this section shall be in a form
58-2 prescribed by the comptroller and shall include a statement of the
58-3 total gross taxable receipts during the preceding month and any
58-4 other information required by the comptroller.
58-5 (c) A tax due for a business day that falls in two different
58-6 months is allocated to the month in which the business day begins.
58-7 Sec. 183.023. PAYMENT. The tax due for the preceding month
58-8 shall accompany the return and shall be payable to the state. The
58-9 comptroller shall deposit the revenue in the mixed beverage tax
58-10 clearance fund.
58-11 SUBCHAPTER C. MIXED BEVERAGE CLEARANCE FUND
58-12 Sec. 183.051. MIXED BEVERAGE TAX CLEARANCE FUND. (a) Not
58-13 later than the last day of the month following a calendar quarter,
58-14 the comptroller shall calculate the total amount of taxes received
58-15 during the quarter from permittees outside an incorporated
58-16 municipality within each county and the total amount received from
58-17 permittees within each incorporated municipality in each county.
58-18 (b) The comptroller shall issue to each county a warrant
58-19 drawn on the mixed beverage tax clearance fund in the amount of
58-20 10.7143 percent of receipts from permittees within the county
58-21 during the quarter and shall issue to each incorporated
58-22 municipality a warrant drawn on that fund in the amount of 10.7143
58-23 percent of receipts from permittees within the incorporated
58-24 municipality during the quarter. The remainder of the receipts for
58-25 the quarter and all interest earned on that fund shall be
58-26 transferred to the general revenue fund.
58-27 Sec. 183.052. CONFLICT OF RULES. If a rule or policy
59-1 adopted by the commission conflicts with a rule adopted by the
59-2 comptroller for the application, enforcement, or collection of the
59-3 tax imposed by this chapter, the comptroller's rule prevails. A
59-4 conflicting rule or policy adopted by the commission is invalid to
59-5 the extent of the inconsistency. If the comptroller determines
59-6 that a rule or policy adopted by the commission conflicts with one
59-7 adopted by the comptroller relating to the application,
59-8 enforcement, or collection of the tax imposed by this chapter, the
59-9 comptroller shall notify the commission in writing of the
59-10 determination. After receipt of the notification, the commission
59-11 must amend or repeal the conflicting rule or policy not later than
59-12 the 90th day after the date of notification.
59-13 Sec. 183.053. SECURITY REQUIREMENT. (a) A permittee
59-14 subject to the tax imposed by this chapter must comply with the
59-15 security requirements imposed by Chapter 151 except that a
59-16 permittee is not required to comply with Section 151.253(b).
59-17 (b) The total of bonds, certificates of deposit, letters of
59-18 credit, or other security determined to be sufficient by the
59-19 comptroller of a permittee subject to the tax imposed by this
59-20 chapter shall be in an amount that the comptroller determines to be
59-21 sufficient to protect the fiscal interests of the state. The
59-22 comptroller may not set the amount of security at less than $1,000
59-23 or more than $25,000.
59-24 SECTION 72. (a) The Texas Alcoholic Beverage Commission
59-25 shall adopt rules relating to the relaxation of restrictions as to
59-26 charitable events as required by Section 60 of this Act on or
59-27 before September 1, 1994.
60-1 (b) The employees, records, and equipment of the
60-2 administrative law division of the Texas Alcoholic Beverage
60-3 Commission are transferred to the State Office of Administrative
60-4 Hearings on the effective date of this Act.
60-5 (c) On the effective date of this Act, a contested case
60-6 pending before the administrative law division of the Texas
60-7 Alcoholic Beverage Commission is transferred to the State Office of
60-8 Administrative Hearings. A proceeding transferred under this
60-9 subsection is treated as if the actions taken in the proceeding had
60-10 been taken by the State Office of Administrative Hearings.
60-11 (d) The Texas Alcoholic Beverage Commission's responsibility
60-12 to conduct a review under the competitive cost review program,
60-13 Article 13, State Purchasing and General Services Act (Article
60-14 601b, Vernon's Texas Civil Statutes), and its subsequent
60-15 amendments, is limited to one definable activity before the second
60-16 anniversary of the effective date of this Act.
60-17 (e) The change in law made by this Act relating to a penalty
60-18 that may be imposed or to the suspension or cancellation of a
60-19 license or permit by the Texas Alcoholic Beverage Commission
60-20 applies only to a violation of a law regulated by the commission or
60-21 of a rule or order of the commission that occurs on or after the
60-22 effective date of this Act. A violation that occurs before the
60-23 effective date is governed by the law in effect on the date it
60-24 occurred, and the former law is continued in effect for that
60-25 purpose.
60-26 SECTION 73. Before November 15, 1993, the governor shall
60-27 appoint three additional members of the Alcoholic Beverage
61-1 Commission. The governor shall designate one member to serve a
61-2 term expiring November 15, 1995, one to serve a term expiring
61-3 November 15, 1997, and one to serve a term expiring November 15,
61-4 1999. Until all members appointed under this section have taken
61-5 office, a quorum of the Alcoholic Beverage Commission is a majority
61-6 of the number of members who are qualified.
61-7 SECTION 74. Section 11.015, Alcoholic Beverage Code, as
61-8 added by this Act, applies only to a hearing held on or after
61-9 September 1, 1993. A hearing held before September 1, 1993, is
61-10 governed by the law in effect when the hearing was held, and that
61-11 law is continued in effect for that purpose.
61-12 SECTION 75. (a) To prepare for the transfer of the
61-13 administration of the mixed beverage tax from the Texas Alcoholic
61-14 Beverage Commission to the comptroller on the effective date of
61-15 this Act, the comptroller and the commission may enter into
61-16 agreements they consider advisable to the use or transfer of funds,
61-17 appropriations, personnel, furniture, equipment, office space, or
61-18 other items or services.
61-19 (b) On the effective date of this Act, all necessary
61-20 employees, records, and property of the commission relating to the
61-21 mixed beverage tax shall be transferred to the comptroller. Before
61-22 that date, the commission may transfer any records, employees or
61-23 property of the commission to the comptroller in preparation for
61-24 the transfer of the mixed beverage tax to the comptroller.
61-25 (c) The change in the law made by this Act does not affect
61-26 the validity of any action or proceeding initiated before the
61-27 effective date of this Act.
62-1 SECTION 76. Sections 5.10(f), 11.491, 12.02, 13.02, 14.02,
62-2 16.02, 18.02, 19.02, 20.02, 21.02, 22.02, 23.02, 24.02, 25.02,
62-3 25.07, 26.02, 27.02, 28.02, 29.02, 30.02, 31.02, 32.02, 33.02,
62-4 33.22, 34.02, 35.02, 36.02, 37.02, 38.04, 39.04, 40.02, 41.02,
62-5 42.02, 43.02, 44.02, 45.02, 46.02, 47.02, 48.02, 49.02, 50.02,
62-6 51.05, 62.02, 64.02, 65.02, 66.02, 67.02, 68.02, 69.02, 69.07,
62-7 70.02, 71.02, 72.02, 73.02, 204.02(d) and (e), 204.03(b), 205.02(c)
62-8 and (d), 205.03, and Chapter 202, Alcoholic Beverage Code, are
62-9 repealed.
62-10 SECTION 77. This Act takes effect September 1, 1993.
62-11 SECTION 78. The importance of this legislation and the
62-12 crowded condition of the calendars in both houses create an
62-13 emergency and an imperative public necessity that the
62-14 constitutional rule requiring bills to be read on three several
62-15 days in each house be suspended, and this rule is hereby suspended.
62-16 COMMITTEE AMENDMENT NO. 2
62-17 Amend C.S.H.B. 1445 as follows:
62-18 (1) On page 10, line 6, strike "EVIDENCE" and substitute
62-19 "EVIDENCE; RECORD. (a)".
62-20 (2) On page 10, line 19, after the period insert:
62-21 (b) The record of any hearing authorized by this code must
62-22 include all records of investigations conducted by the commission's
62-23 inspectors.
62-24 73R5878 MWV-D D. Smith of Harris