76R14367 E
By Wilson H.B. No. 3555
Substitute the following for H.B. No. 3555:
By Wilson C.S.H.B. No. 3555
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the manufacture, distribution, sale,
1-3 use, possession, and transportation of alcoholic beverages in the
1-4 state; providing a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 5.50, Alcoholic Beverage Code, is amended
1-7 by adding Subsection (e) to read as follows:
1-8 (e) For the purposes of Subsection (b), the term "the
1-9 legislative appropriation to the commission for the regulation of
1-10 alcoholic beverages" does not include:
1-11 (1) any amount appropriated to pay judgments,
1-12 attorney's fees, settlements, or any expenditure by the commission
1-13 arising out of an action in which the commission is alleged to
1-14 have:
1-15 (A) been negligent or discriminatory in an
1-16 action taken or omission made by the commission;
1-17 (B) violated the commission's employment
1-18 policies; or
1-19 (C) wrongfully terminated a commission employee;
1-20 or
1-21 (2) any amount of money appropriated to be paid to or
1-22 expended on a commission employee or other commission personnel who
1-23 are performing an action or service that is not specifically
1-24 related to the enforcement of this code.
2-1 SECTION 2. Section 11.09, Alcoholic Beverage Code, is
2-2 amended to read as follows:
2-3 Sec. 11.09. EXPIRATION OR SUSPENSION OF PERMIT. (a) A
2-4 permit issued under this code expires one year after the date it is
2-5 issued except as otherwise provided by this code.
2-6 (b) A secondary permit that requires the holder of the
2-7 permit to first obtain another permit, including a late hours
2-8 permit, expires on the same date the basic or primary permit
2-9 expires. The commission may not prorate or refund any part of the
2-10 fee for the secondary permit if the application of this section
2-11 results in the expiration of the permit in less than one year.
2-12 (c) An action by the commission resulting in the suspension
2-13 of a basic or primary permit also acts to suspend any secondary
2-14 permit held by the holder of the basic or primary permit.
2-15 SECTION 3. Subchapter A, Chapter 11, Alcoholic Beverage
2-16 Code, is amended by adding Section 11.091 to read as follows:
2-17 Sec. 11.091. NOTIFICATION OF EXPIRED OR SUSPENDED PERMIT.
2-18 (a) The commission shall verify that the holder of an expired or
2-19 suspended retail permit is not operating in violation of this code.
2-20 The verification, including any inspection of the premises by
2-21 commission personnel, must occur within a reasonable time after the
2-22 date the permit expires or is suspended.
2-23 (b) The commission shall promptly notify each wholesaler, as
2-24 that term is ordinarily used and understood in Section 102.01, who
2-25 regularly supplies retailers in the geographic area that the
2-26 holder's retail permit has expired or has been suspended.
2-27 SECTION 4. Subchapter C, Chapter 11, Alcoholic Beverage
3-1 Code, is amended by adding Sections 11.72 and 11.73 to read as
3-2 follows:
3-3 Sec. 11.72. AFFIRMATION OF COMPLIANCE. A person who holds a
3-4 permit under Chapter 19, 20, 21, or 23 may not be subject to an
3-5 administrative sanction for selling or delivering an alcoholic
3-6 beverage to a retailer not authorized to purchase and receive the
3-7 alcoholic beverage if the permit holder:
3-8 (1) reasonably believes that the retailer is
3-9 authorized to purchase and receive that type of alcoholic beverage;
3-10 and
3-11 (2) obtains from the retailer at the time of delivery
3-12 a written affirmation, which may be printed or stamped on a sales
3-13 invoice evidencing the sale or delivery of alcoholic beverages by
3-14 the permit holder, that the retailer is authorized to purchase and
3-15 receive the type of alcoholic beverage sold and delivered by the
3-16 permit holder.
3-17 Sec. 11.73. DISCIPLINE FOR ACTIONS OF AGENT. The commission
3-18 or administrator may suspend or revoke the permit of a person who
3-19 is represented by the holder of an agent's permit as described by
3-20 Section 35.01 or otherwise discipline the person based on an act or
3-21 omission of the holder of an agent's permit only if an individual
3-22 employed by the person in a supervisory position:
3-23 (1) was directly involved in the act or omission of
3-24 the holder of an agent's permit;
3-25 (2) had notice or knowledge of the act or omission;
3-26 and
3-27 (3) failed to take reasonable steps to prevent the act
4-1 or omission.
4-2 SECTION 5. Section 24.07, Alcoholic Beverage Code, is
4-3 amended to read as follows:
4-4 Sec. 24.07. WHEN LICENSE ALSO HELD: HOURS OF SALE, ETC. A
4-5 holder of a wine only package store permit who also holds a retail
4-6 dealer's off-premise license for the same location may remain open
4-7 and sell ale, wine, vinous liquors, and beer, for off-premises
4-8 consumption only, on any day and during the same hours that the
4-9 holder of a wine and beer retailer's permit may sell ale, beer, and
4-10 wine, except that he may not sell wine or vinous liquor containing
4-11 more than 17 [14] percent alcohol by volume on a Sunday or after 10
4-12 p.m. on any day.
4-13 SECTION 6. Section 25.01, Alcoholic Beverage Code, is
4-14 amended to read as follows:
4-15 Sec. 25.01. AUTHORIZED ACTIVITIES. The holder of a wine and
4-16 beer retailer's permit may sell:
4-17 (1) for consumption on or off the premises where sold,
4-18 but not for resale, wine containing not more than 17 percent
4-19 alcohol by volume and [,] beer[,] and malt liquors containing
4-20 alcohol in excess of one-half of one percent by volume and not more
4-21 than 14 percent by volume; and
4-22 (2) for consumption on the premises traditional port
4-23 or sherry containing alcohol in excess of one-half of one percent
4-24 by volume and not more than 24 percent by volume.
4-25 SECTION 7. Section 25.09, Alcoholic Beverage Code, is
4-26 amended to read as follows:
4-27 Sec. 25.09. POSSESSION OF CERTAIN BEVERAGES PROHIBITED. No
5-1 wine and beer retailer's permittee, nor officer of the permittee,
5-2 may possess [distilled spirits or liquor containing alcohol in
5-3 excess of 14 percent by volume] on the licensed premises any
5-4 alcoholic beverage the permittee is not authorized to sell.
5-5 SECTION 8. Section 26.01, Alcoholic Beverage Code, is
5-6 amended to read as follows:
5-7 Sec. 26.01. AUTHORIZED ACTIVITIES. The holder of a wine and
5-8 beer retailer's off-premise permit may sell for off-premises
5-9 consumption only, but not for resale, wine containing not more than
5-10 17 percent alcohol by volume and [,] beer[,] and malt liquors
5-11 containing alcohol in excess of one-half of one percent by volume
5-12 but not more than 14 percent by volume.
5-13 SECTION 9. Section 27.01, Alcoholic Beverage Code, is
5-14 amended to read as follows:
5-15 Sec. 27.01. AUTHORIZED ACTIVITIES. The holder of a
5-16 temporary wine and beer retailer's permit may sell for consumption
5-17 on or off the premises where sold, but not for resale, wine
5-18 containing not more than 17 percent alcohol by volume and[,]
5-19 beer[,] and malt liquors containing alcohol in excess of one-half
5-20 of one percent by volume but not more than 14 percent by volume.
5-21 The permit does not authorize the sale of those beverages outside
5-22 the county for which it is issued.
5-23 SECTION 10. Section 27.11, Alcoholic Beverage Code, is
5-24 amended to read as follows:
5-25 Sec. 27.11. AUTHORIZED ACTIVITIES. The holder of a special
5-26 three-day wine and beer permit may sell for consumption on the
5-27 premises for which the permit is issued, but not for resale, wine
6-1 containing not more than 17 percent alcohol by volume and[,]
6-2 beer[,] and malt liquors containing alcohol in excess of one-half
6-3 of one percent by volume but not more than 14 percent by volume.
6-4 SECTION 11. Section 42.01(a), Alcoholic Beverage Code, is
6-5 amended to read as follows:
6-6 (a) The holder of a private carrier permit who is also a
6-7 holder of a brewer's, distiller's and rectifier's, winery,
6-8 wholesaler's, class B wholesaler's, or wine bottler's permit may
6-9 transport liquor from the place of purchase to his place of
6-10 business and from the place of sale or distribution to the
6-11 purchaser in vehicles owned or leased in good faith by the holder,
6-12 or in a vehicle owned or leased by the holder of a permit issued
6-13 under Chapter 35, if the transportation is for a lawful purpose.
6-14 SECTION 12. Section 61.03, Alcoholic Beverage Code, is
6-15 amended to read as follows:
6-16 Sec. 61.03. [DURATION AND] EXPIRATION OR SUSPENSION OF
6-17 LICENSE. (a) Except as provided by Subsection (b), a [No] license
6-18 may not be issued for a term longer than one year. Any license
6-19 except a branch, importer's, importer's carrier's, or temporary
6-20 license expires one year after the date on which it is issued.
6-21 (b) A secondary license that requires the holder of the
6-22 license to first obtain another license, including a late hours
6-23 license, expires on the same date the basic or primary license
6-24 expires. The commission may not prorate or refund any part of the
6-25 fee for the secondary license if the application of this section
6-26 results in the expiration of the license in less than one year.
6-27 (c) An action by the commission resulting in the suspension
7-1 of a basic or primary license also acts to suspend any secondary
7-2 license held by the holder of the basic or primary license.
7-3 SECTION 13. Subchapter A, Chapter 61, Alcoholic Beverage
7-4 Code, is amended by adding Section 61.031 to read as follows:
7-5 Sec. 61.031. NOTIFICATION OF EXPIRED OR SUSPENDED LICENSE.
7-6 (a) The commission shall verify that the holder of an expired or
7-7 suspended retail license is not operating in violation of this
7-8 code. The verification, including any inspection of the premises
7-9 by commission personnel, must occur within a reasonable time after
7-10 the date the license expires or is suspended.
7-11 (b) The commission shall promptly notify each wholesaler, as
7-12 that term is ordinarily used and understood in Section 102.01, who
7-13 regularly supplies retailers in the geographic area that the
7-14 holder's retail license has expired or has been suspended.
7-15 SECTION 14. Subchapter C, Chapter 61, Alcoholic Beverage
7-16 Code, is amended by adding Sections 61.86 and 61.87 to read as
7-17 follows:
7-18 Sec. 61.86. AFFIRMATION OF COMPLIANCE. A person who holds a
7-19 license under Chapter 64, 65, or 66 may not be subject to an
7-20 administrative sanction for selling or delivering an alcoholic
7-21 beverage to a retailer not authorized to purchase and receive the
7-22 alcoholic beverage if the license holder:
7-23 (1) reasonably believes that the retailer is
7-24 authorized to purchase and receive that type of alcoholic beverage;
7-25 and
7-26 (2) obtains from the retailer at the time of delivery
7-27 a written affirmation, which may be printed or stamped on a sales
8-1 invoice evidencing the sale or delivery of alcoholic beverages by
8-2 the license holder, that the retailer is authorized to purchase and
8-3 receive the type of alcoholic beverage sold and delivered by the
8-4 license holder.
8-5 Sec. 61.87. DISCIPLINE FOR ACTIONS OF AGENT. The commission
8-6 or administrator may suspend or revoke the license of a person who
8-7 is the employer of or represented by the holder of an agent's beer
8-8 license as described by Section 73.01 or otherwise discipline the
8-9 person based on an act or omission of the holder of the agent's
8-10 beer license only if an individual employed by the person in a
8-11 supervisory position:
8-12 (1) was directly involved in the act or omission of
8-13 the holder of the agent's beer license;
8-14 (2) had notice or knowledge of the act or omission;
8-15 and
8-16 (3) failed to take reasonable steps to prevent the act
8-17 or omission.
8-18 SECTION 15. Section 102.07, Alcoholic Beverage Code, is
8-19 amended by amending Subsection (a) and adding Subsection (g) to
8-20 read as follows:
8-21 (a) Except as provided in Subsections (b), [and] (d), and
8-22 (g) [of this section], no person who owns or has an interest in the
8-23 business of a distiller, brewer, rectifier, wholesaler, class B
8-24 wholesaler, winery, or wine bottler, nor the agent, servant, or
8-25 employee of such a person, may:
8-26 (1) own or have a direct or indirect interest in the
8-27 business, premises, equipment, or fixtures of a retailer;
9-1 (2) furnish, give, or lend any money, service, or
9-2 thing of value to a retailer;
9-3 (3) guarantee a financial obligation of a retailer;
9-4 (4) make or offer to enter an agreement, condition, or
9-5 system which will in effect amount to the shipment and delivery of
9-6 alcoholic beverages on consignment;
9-7 (5) furnish, give, rent, lend, or sell to a retail
9-8 dealer any equipment, fixtures, or supplies to be used in selling
9-9 or dispensing alcoholic beverages, except that alcoholic beverages
9-10 may be packaged in combination with other items if the package is
9-11 designed to be delivered intact to the ultimate consumer and the
9-12 additional items have no value or benefit to the retailer other
9-13 than that of having the potential of attracting purchases and
9-14 promoting sales;
9-15 (6) pay or make an allowance to a retailer for a
9-16 special advertising or distribution service;
9-17 (7) allow an excessive discount to a retailer; or
9-18 (8) offer a prize, premium, gift, or similar
9-19 inducement to a retailer or to the agent, servant, or employee of a
9-20 retailer.
9-21 (g) Subsection (a) does not prohibit a permittee covered
9-22 under Subsection (a) from prearranging or preannouncing a
9-23 promotional activity otherwise permitted by this code with a
9-24 retailer about a promotional activity to be held on the retailer's
9-25 premises. A holder of a wholesaler's or class B wholesaler's permit
9-26 may prearrange a promotional activity only for distilled spirits or
9-27 wine. A permittee may not:
10-1 (1) preannounce a promotion to a consumer, if the
10-2 permittee is the holder of a wholesaler's or class B wholesaler's
10-3 permit; or
10-4 (2) preannounce the purchase of wine or distilled
10-5 spirits to a consumer.
10-6 SECTION 16. Subchapter D, Chapter 102, Alcoholic Beverage
10-7 Code, is amended by adding Section 102.775 to read as follows:
10-8 Sec. 102.775. ARBITRATION LOCATION. If arbitration is used
10-9 to settle a dispute between a manufacturer and a distributor, the
10-10 arbitration proceeding must be conducted in the county in which the
10-11 distributor's principal place of business is located unless the
10-12 parties agree, at the time of the arbitration, to another location.
10-13 SECTION 17. Section 107.07(f), Alcoholic Beverage Code, is
10-14 amended to read as follows:
10-15 (f) Any person in the business of selling alcoholic
10-16 beverages in another state or country who ships or causes to be
10-17 shipped any alcoholic beverage directly to any Texas resident under
10-18 this section commits an offense [is in violation of this code]. An
10-19 offense under this subsection is a Class A misdemeanor, unless it
10-20 is shown at the trial of the offense that the person committed the
10-21 offense after the person received written notice from the
10-22 commission that the person was violating this subsection, in which
10-23 event an offense under this subsection is a state jail felony.
10-24 SECTION 18. Sections 251.14(a) and (e), Alcoholic Beverage
10-25 Code, are amended to read as follows:
10-26 (a) In the ballot issues prescribed in this section, "wine"
10-27 is limited to vinous beverages that do not contain more than 17
11-1 [14] percent alcohol by volume and includes malt beverages that do
11-2 not exceed that alcohol content. For local option purposes, those
11-3 beverages, sold and dispensed to the public in unbroken, sealed,
11-4 individual containers, are a separate and distinct type of
11-5 alcoholic beverage.
11-6 (e) In areas where the sale of beverages containing alcohol
11-7 not in excess of 17 [14] percent by volume has been legalized, and
11-8 those of higher alcoholic content are prohibited, the ballot shall
11-9 be prepared to permit voting for or against one of the following
11-10 issues in any prohibitory election:
11-11 (1) "The legal sale of beer for off-premise
11-12 consumption only."
11-13 (2) "The legal sale of beer."
11-14 (3) "The legal sale of beer and wine for off-premise
11-15 consumption only."
11-16 (4) "The legal sale of beer and wine."
11-17 SECTION 19. Subchapter D, Chapter 251, Alcoholic Beverage
11-18 Code, is amended by adding Section 251.81 to read as follows:
11-19 Sec. 251.81. SALE OF WINE. (a) If the sale of wine was
11-20 approved in an area by a local option election, other than a local
11-21 option election that approved the sale of all alcoholic beverages,
11-22 before September 1, 1999, an alcoholic beverage license or permit
11-23 holder may not sell in that area wine containing more than 14
11-24 percent alcohol by volume unless a subsequent local option election
11-25 approves the sale of wine or wine and other alcoholic beverages.
11-26 (b) The commission shall, on the face of each alcoholic
11-27 beverage license or permit, indicate whether the holder may sell
12-1 wine and, if the license or permit holder may sell wine, whether
12-2 the holder may sell wine up to 14 percent alcohol or 17 percent
12-3 alcohol by volume.
12-4 SECTION 20. Subchapter Z, Chapter 33, Education Code, is
12-5 amended by adding Section 33.904 to read as follows:
12-6 Sec. 33.904. ALCOHOL AWARENESS PROGRAM. (a) The agency
12-7 shall assist a seven-member advisory committee appointed by the
12-8 governor in developing recommendations for the creation of a model
12-9 curriculum for raising alcohol awareness among students in the
12-10 schools in this state. The curriculum recommendation, along with
12-11 any recommendations for funding from the General Appropriations
12-12 Act, shall be reported to the presiding officer of each house of
12-13 the legislature not later than the 90th day before the date on
12-14 which the legislature convenes in each regular session.
12-15 (b) The governor shall appoint the commissioner of education
12-16 as the presiding officer of the advisory committee. In making the
12-17 remaining appointments, the governor shall attempt to appoint
12-18 members from various geographic regions of the state representing
12-19 the diversity of the citizens of this state.
12-20 (c) The terms of the advisory committee members end on the
12-21 date the committee's recommendations are reported under Subsection
12-22 (a).
12-23 SECTION 21. Section 49.03, Penal Code, is amended to read as
12-24 follows:
12-25 Sec. 49.03. CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE
12-26 IN MOTOR VEHICLE. (a) A person commits an offense if the person
12-27 consumes an alcoholic beverage while operating a motor vehicle in a
13-1 public place [and is observed doing so by a peace officer].
13-2 (b) An occupant of a motor vehicle that is located on a
13-3 public highway, or on the right-of-way of a public highway,
13-4 including a rest area, comfort station, picnic area, roadside park,
13-5 or scenic overlook situated on the right-of-way of a public
13-6 highway, commits an offense if the person:
13-7 (1) consumes an alcoholic beverage; or
13-8 (2) possesses in the passenger area of the motor
13-9 vehicle a bottle, can, or other receptacle that:
13-10 (A) contains an alcoholic beverage; and
13-11 (B) has been opened, has a broken seal, or has
13-12 the contents partially removed.
13-13 (c) It is an affirmative defense to prosecution under
13-14 Subsection (b) that the person consuming the alcoholic beverage is,
13-15 or that the receptacle containing the alcoholic beverage is in the
13-16 possession of:
13-17 (1) a passenger in the living quarters of a house
13-18 coach or house trailer; or
13-19 (2) a passenger in a motor vehicle designed,
13-20 maintained, or used primarily for the transportation of persons for
13-21 compensation.
13-22 (d) An offense under this section is a Class C misdemeanor.
13-23 SECTION 22. In collecting, compiling, or publishing data or
13-24 statistical information related to violations of any penal law of
13-25 this state or to highway and traffic offenses, a state agency or
13-26 political subdivision may not categorize or classify an accident,
13-27 crime, offense, incident, or activity as being caused by or
14-1 otherwise related to the use of drugs or the consumption of
14-2 alcoholic beverages by or the mental impairment of a person
14-3 involved in the accident, crime, offense, incident, or activity
14-4 unless the use, consumption, or impairment is determined to be the
14-5 proximate cause of the accident, crime, offense, incident, or
14-6 activity.
14-7 SECTION 23. Sections 22.09 and 24.08, Alcoholic Beverage
14-8 Code, are repealed.
14-9 SECTION 24. Sections 11.72 and 61.86, Alcoholic Beverage
14-10 Code, as added by this Act, apply only to a sale or delivery of an
14-11 alcoholic beverage on or after the effective date of this Act.
14-12 SECTION 25. Sections 11.73 and 61.87, Alcoholic Beverage
14-13 Code, as added by this Act, apply only to an act or omission of the
14-14 holder of an agent's permit under Chapter 35, Alcoholic Beverage
14-15 Code, or of an agent's beer license under Chapter 73, Alcoholic
14-16 Beverage Code, that occurs on or after the effective date of this
14-17 Act.
14-18 SECTION 26. (a) The change in law made to Section 107.07,
14-19 Alcoholic Beverage Code, by this Act applies only to an offense
14-20 committed on or after the effective date of this Act. For purposes
14-21 of this section, an offense is committed before the effective date
14-22 of this Act if any element of the offense occurs before the
14-23 effective date.
14-24 (b) An offense committed before the effective date of this
14-25 Act is covered by the law in effect when the offense was committed,
14-26 and the former law is continued in effect for that purpose.
14-27 SECTION 27. (a) The change in law made to Section 49.03,
15-1 Penal Code, by this Act applies only to an offense committed on or
15-2 after the effective date of this Act. For purposes of this
15-3 section, an offense is committed before the effective date of this
15-4 Act if any element of the offense occurs before the effective date.
15-5 (b) An offense committed before the effective date of this
15-6 Act is covered by the law in effect when the offense was committed,
15-7 and the former law is continued in effect for that purpose.
15-8 SECTION 28. This Act takes effect September 1, 1999.
15-9 SECTION 29. The importance of this legislation and the
15-10 crowded condition of the calendars in both houses create an
15-11 emergency and an imperative public necessity that the
15-12 constitutional rule requiring bills to be read on three several
15-13 days in each house be suspended, and this rule is hereby suspended.