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A BILL TO BE ENTITLED
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AN ACT
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relating to the sale and production of malt liquor, ale, and beer by |
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the holder of a brewpub license. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The legislature finds that: |
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(1) the state is authorized under the Twenty-first |
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Amendment of the United States Constitution to promote the public's |
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interest in the fair, efficient, and competitive marketing of malt |
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liquor, ale, and beer in this state; |
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(2) the United States Supreme Court in Granholm v. |
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Heald, 544 U.S. 460 (2005), has recognized that the three-tier |
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system of regulating the alcoholic beverage industry is |
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unquestionably legitimate; |
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(3) in Granholm, the United States Supreme Court |
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further recognized that while the states are entitled to regulate |
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the production and sale of liquor within their borders, the right is |
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nonetheless subject to the provisions of the Constitution of the |
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United States, including the Interstate Commerce Clause, and laws |
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regulating the alcoholic beverage industry may not discriminate |
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against out-of-state participants or give undue deference to local |
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participants and may not ignore other provisions of the |
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constitution, including the Supremacy Clause, Commerce Clause, and |
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the Privileges and Immunities Clause with its nondiscriminatory |
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principles; |
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(4) the state is authorized to promote, market, and |
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educate consumers about the emerging small brewing industry; |
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(5) it is in the state's interest to encourage |
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entrepreneurial and small business development opportunities in |
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the state that will lead to new capital investment in the state, |
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create new jobs in the state, and expand the state and local tax |
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base; and |
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(6) it is the public policy of the state to exercise |
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the police power of the state to protect the welfare, health, peace, |
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temperance, and safety of the people of Texas. |
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SECTION 2. Section 20.01, Alcoholic Beverage Code, is |
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amended to read as follows: |
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Sec. 20.01. AUTHORIZED ACTIVITIES. The holder of a general |
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class B wholesaler's permit may: |
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(1) purchase and import malt and vinous liquors from |
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brewers, wineries, rectifiers, and wine manufacturers and wine |
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bottlers who are the holders of nonresident seller's permits or |
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their agents who are holders of manufacturer's agent permits; |
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(2) purchase malt and vinous liquors from holders of |
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brewer's permits, holders of brewpub licenses, or other wholesalers |
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in the state; |
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(3) sell the malt and vinous liquors in the original |
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containers in which they are received to retailers and wholesalers |
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authorized to sell them in this state, including holders of local |
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distributor's permits, mixed beverage permits, and daily temporary |
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mixed beverage permits; |
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(4) sell the malt and vinous liquors to qualified |
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persons outside the state; and |
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(5) sell ale and malt liquor to a holder of a private |
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club registration permit. |
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SECTION 3. Subsection (a), Section 64.01, Alcoholic |
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Beverage Code, is amended to read as follows: |
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(a) The holder of a general distributor's license may: |
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(1) receive beer in unbroken original packages from |
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manufacturers and brewpubs and from general, local, or branch |
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distributors; |
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(2) distribute or sell beer in the unbroken original |
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packages in which it is received to general, branch, or local |
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distributors, to local distributor permittees, to permittees or |
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licensees authorized to sell to ultimate consumers, to private club |
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registration permittees, to authorized outlets located on any |
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installation of the national military establishment, or to |
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qualified persons for shipment and consumption outside the state; |
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and |
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(3) serve free beer for consumption on the licensed |
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premises. |
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SECTION 4. Section 74.03, Alcoholic Beverage Code, is |
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amended to read as follows: |
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Sec. 74.03. PRODUCTION LIMIT. The total annual production |
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of malt liquor, ale, and beer by a holder of a brewpub license may |
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not exceed 10,000 [5,000] barrels for each licensed brewpub |
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[established, operated, or maintained by the holder in this state]. |
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SECTION 5. Chapter 74, Alcoholic Beverage Code, is amended |
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by adding Sections 74.08, 74.09, 74.10, and 74.11 to read as |
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follows: |
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Sec. 74.08. SALES BY BREWPUB LICENSE HOLDERS TO RETAILERS. |
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(a) In addition to the activities authorized by Section 74.01, the |
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holder of a brewpub license who holds a wine and beer retailer's |
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permit and who sells alcoholic beverages manufactured only on the |
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brewpub's premises may: |
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(1) sell malt liquor or ale produced under the license |
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to those retailers or qualified persons to whom the holder of a |
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general class B wholesaler's permit may sell malt liquor or ale |
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under Section 20.01; and |
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(2) sell beer produced under the license to: |
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(A) those retailers to whom the holder of a |
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general distributor's license may sell beer under Section 64.01; or |
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(B) qualified persons to whom the holder of a |
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general distributor's license may sell beer for shipment and |
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consumption outside the state under Section 64.01. |
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(b) With regard to a sale under Subsection (a)(1), the |
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holder of a brewpub license has the same authority and is subject to |
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the same requirements that apply to a sale made by the holder of a |
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general class B wholesaler's permit. |
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(c) With regard to a sale under Subsection (a)(2), the |
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holder of a brewpub license has the same authority and is subject to |
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the same requirements that apply to a sale made by the holder of a |
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general distributor's license. |
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(d) The total amount of malt liquor, ale, and beer sold |
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under this section to persons in this state may not exceed 1,000 |
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barrels annually for each licensed brewpub location or 2,500 |
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barrels annually for all brewpubs operated by the same licensee. |
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Sec. 74.09. SALES TO DISTRIBUTORS. (a) In addition to the |
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activities authorized by Section 74.01, the holder of a brewpub |
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license may sell beer produced under the license to the holder of a |
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general, local, or branch distributor's license. |
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(b) The holder of a brewpub license who sells beer under |
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Subsection (a) shall comply with the requirements of Section |
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102.51. |
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Sec. 74.10. SALES TO WHOLESALERS. (a) In addition to the |
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activities authorized by Section 74.01, the holder of a brewpub |
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license may sell ale and malt liquor to the holder of a local class B |
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wholesaler's permit. |
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(b) The holder of a brewpub license who sells ale or malt |
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liquor under Subsection (a) shall comply with the requirements of |
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Section 102.81. |
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Sec. 74.11. REPORT OF SALES TO RETAILERS. (a) Not later |
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than the 15th day of each month, the holder of a brewpub license |
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shall file a report with the commission that contains information |
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relating to the sales made by the brewpub to a retailer during the |
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preceding calendar month. |
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(b) The commission shall by rule determine the information |
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that is required to be reported under this section and the manner in |
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which the report must be submitted to the commission. The |
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commission may require the report to contain the same information |
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reported to the comptroller under Section 151.462, Tax Code. |
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SECTION 6. Subdivision (2), Subsection (d), Section 102.54, |
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Alcoholic Beverage Code, is amended to read as follows: |
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(2) "Manufacturer" means a person who holds a license |
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issued under Chapter 62, [or] 63, or 74. |
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SECTION 7. Subsection (a), Section 102.55, Alcoholic |
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Beverage Code, is amended to read as follows: |
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(a) In this subchapter and Subchapter D, and as the terms |
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relate to an agreement between a manufacturer and a distributor |
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describing the sales territory in which a distributor may sell the |
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beer of a manufacturer: |
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(1) "Brand" means any word, name, group of letters, |
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symbol, or trademark or a combination of any word, name, group of |
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letters, symbol, or trademark that is adopted and used by a |
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manufacturer on a label or on packaging to identify a specific beer |
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or malt beverage and to distinguish the beer or malt beverage |
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product from the label or packaging of another beer or malt beverage |
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produced or marketed by any manufacturer. The term does not include |
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the name of the manufacturer unless the name of the manufacturer is |
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included in the name of the brand. |
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(2) "Brand extension" means a brand that incorporates |
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a brand name or brand logo, or a substantial part of an existing |
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brand name or brand logo, of the same manufacturer. |
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(3) "Manufacturer" means a person who holds a license |
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issued under Chapter 62, 63, or 74. |
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SECTION 8. Subdivision (4), Section 102.71, Alcoholic |
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Beverage Code, is amended to read as follows: |
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(4) "Manufacturer" means those persons licensed under |
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Section 62.01, [or] 63.01, or 74.01 [of this code]. |
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SECTION 9. Subsection (f), Section 74.01, Alcoholic |
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Beverage Code, is repealed. |
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SECTION 10. (a) Subject to Subsection (b) of this section, |
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this Act takes effect immediately if it receives a vote of |
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two-thirds of all the members elected to each house, as provided by |
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Section 39, Article III, Texas Constitution. If this Act does not |
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receive the vote necessary for immediate effect, this Act takes |
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effect September 1, 2013. |
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(b) The changes in law made by this Act take effect only if |
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each of the following bills is enacted and becomes law: |
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(1) Senate Bill No. 516, House Bill No. 1764, or |
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another similar bill of the 83rd Legislature, Regular Session, |
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2013, that allows small brewers to sell ale to retailers; |
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(2) Senate Bill No. 517, House Bill No. 1765, or |
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another similar bill of the 83rd Legislature, Regular Session, |
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2013, that allows small beer manufacturers to sell beer to |
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retailers; |
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(3) Senate Bill No. 518, House Bill No. 1766, or |
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another similar bill of the 83rd Legislature, Regular Session, |
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2013, that allows small brewers and beer manufacturers to sell beer |
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and ale to ultimate consumers; and |
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(4) Senate Bill No. 639, House Bill No. 1538, or |
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another similar bill of the 83rd Legislature, Regular Session, |
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2013, relating to sales of beer by a manufacturer to a distributor |
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and certain agreements between a manufacturer and distributor. |