December 21, 1971
Hon. 0. N. Humphreys, Jr. Opinion No. M-1015
Administrator, Texas Alcoholic
Beverage Commission Re: Whether a private
P. 0. Box 13127, Capitol Station club permittee lo-
Austin, Texas 78711 cated in a dry area,
which private club
also holds a beverage
cartage permit, may
purchase beer from a
beer distributor of
the type provided for
in Article 667-3, (b),
(c), and (d), V.P.C.,
at the premises of
such distributor and
transport such beer to
Dear Mr. Humphreys: its own premises.
your opinion request dated August 27, 1971, has been
received and considered by this department. We quote from your
letter as follows:
"May the holder of a Private Club Reg-
istration Permit issued for a premises lo-
cated in a dry area, who also holds a
Beverage Cartage Permit, purchase beer from
a beer distributor of the type provided for
in Article 667-3, (b), (c), and (d), V.P.C.,
at the premises of such distributor and
transport such beer to its own premises."
We conclude that the question must be answered in the
affirmative.
Several portions of the Texas Liquor Control Act must
be considered. The one which,has.given us the most concern was
enacted by the last.Texas Legislature (Acts 62nd Leg., R.S., 1971,
Ch. 65, p. 681, Sec. 15, at p. 692-3, codified by Vernon as
Article 666-20(e), V-.P.C.).*
*All Articles mentioned are from Vernon's Penal Code.
-4949-
. .
Hon. 0. N. Humphreys, page 2., (M-1015)
"All distilled spirits sold by a Mixed
Beverage Permittee or a Private Club Permittee
mu-t be purchased in this State:from a holder
of a Local Distributor's Permit. ,;No local
distributor-may sell distilled spirits to a
Mixed Beverage Permittee or a Private Club
Permittee in individual containers containing
less than one fluid ounce. No local distri-
butors may deliver less than two and four-
tenths gallons of distilled spirits in a sin-
gle shipment.
"The Commission or Administrator is
authorized to issue Local Distributor's Per-
mits only to holders of Package Store Permits
issued under the terms of Section 15(8) of
Article I of the Texas Liquor Control Act.
A Local Distributor's Permit shall authorize
the holder thereof to purchase distilled spir-
its or liquor from holders of Wholesaler's
Permits issued under the terms of Section 15(6)
of Article I of the Texas Liquor Control Act
only, and to sell and distribute to Mixed
Beverage Permittees or Private Club Permittees
such brands of distilled spirits, liquor, and
other alcoholic beverages as are for general
distribution and'are available from the whole-
saler to all local distributors. The fee for
a Local Distributor's Permit shall be in the
amount of Fifty Dollars ($50) and shall be
paid in addition to, and under the same condi-
tions as, the fee paid for the holder's Pack-
age Store Permit. Any holder or any agent of
a holder of a Wholesaler's Permit issued under
the terms of Section 15(6) of this Article I
may enter the licensed premises of a Mixed
Beverage Permittee or a Private Club Permittee
for the purpose of determining the brands
offered for sale and suggesting or promoting
to the extent authorized'by Section 17 (3)(g)
of~this Article I, the sale of other brands;
provided, however, that no holder and no agent
of a holder of a Section 15(6) Wholesaler's
Permit shall be authorized to accept a direct
order from a Mixed Beverage Permittee other
than a direct order for wine or malt liquor.
-4950-
. .
Hon. 0. N. Humphreys, page 3. (M-1015)
“No holder of a Nonresident Seller’s
Permit or a Manufacturer’s Agent’s Permit
issued under Section 15-l/2 of this Article
I, shall, unless accompanied by the holder
or the agent of a holder of a Wholesaler’s
Permit, solicit any business, directly or
indir~ectly, from a Mixed Beverage Permittee
or a Private Club Permittee.
“Where a Mixed Beverage Permittee or
a Private Club Permittee is in an area where
there are no local distributors, the holder
of a Mixed Beverage Permit or a Private Club
Permit shall be empowered to purchase alco-
holic beverages in the nearest area where
local distributors are located and transport
same to the premises of the Mixed Beverage
Permittee or Club; provided the permittee
transporting such alcoholic beverages is also
a holder of a Beverage Cartage ~Permit, and
provide? that such transporter shall~ acquire
such alcoholic beverages only on the written
order from the holder of a Mixed Beverage Per-
mit or officer or manager of the Club and any
such alcoholic beverages must be accompanied
by a written statement furnished and signed
by a local distri.butor, showing the name and
address of the consignee and consignor, the
origin and destination of such shipment, and
such other i,nformation as may be required, by
the Commission or Administrator; and it shall
be the duty of the person in charge of such
alcoholic beverages while they are being so
transported to exhibit such written state-
ment to any representative of the Commission
or any peace officer making demand therefor,
and such statement shall be accepted by such
representative or offi.cer as prima facie evi-
dence of the lawful ri,ght to transport such
alcohol,ic beverages 0
“The Commission is hereby authorized to
issue a Beverage Cartage Permit to the holder
of a Mixed Beverage Permi.t or a Private Club
Permit to transport alcoholic beverages tr the
licensed premise from the place of purchase.
-4951-
Hon. 0. N. Humphreys, page 4. (M-1015)
The holder of a Beveraee Cartage Permit shall
be privileged to transfer alcoholic beverages
as herein provided. The annual State fee for
a Beverage Cartage Permit shall be Ten Dollars
($10) .I’
The Local Distributor’s Permit is new to the Texas
Liquor ,Control Ac,t and appears for the first time in the Section
above quoted adopted by the 62nd Legislature. This permit may
issue only to Package Store Permit holders as authorized by
Article 666-15(8), which reads as follows:
“Package Store Permit. A Package Store
Permit shall authorize the holder thereof to:
(a). Purchase liquor from,the holders
in this State of Class A Winery, Class B Winery,
Wholesaler’s, Class B Wholesaler’s and Wine
Bottler’s Permits;
(“1. Sell liquor on or from licensed
premises at retail to consumer for off-premises
consumption only and not for the purpose of
resale, in unbroken original conta?ners only;
Cd). Sell malt and vinous liquors in
“orIgina containers of note less than six (6)
ounces;
Cd)- Sell vinous liquors, but in quarjti-
ties of not more than five. (5) gallons ,in-
original containers in any single transaction.
‘(e)- ,Any person holding more than one
Package Store Permit may designate one of the
licensed premises as the place for storage of
liquor, and he shall be privileged to transfer
liquor to and from such stora.ge’to and from
his other licensed premises under such rules
and regulations as may be prescribed by the
Commission.
“The annual State fee for 3 Package Store
Permit in cities and towns shall be based upon
the population according to the last preceding
Federal Census as follows:
Fee
25;o
=F=-0 or less . . . . $125.00
25,001 to 75,000 . . . 175.00
75,001 or more . . . . 250.00
-4952-
.
Hon. 0. N. Humphreys, page 5. (M-1015)
"The annual State fee for a Package Store
Permit outside of cities and towns shall be
One Hundred and Twenty-five Dollars ($125),
except the annual State fee for a Package Store
Permit outside of any incorporated city or town
and within two (2) miles of the corporate limits
shall be the same as the fee required in said
incorporated city or town."
It will be noted that the foregoing quoted portion of
the statute does not authorize the sale of beer at retail for off-
premise consumption. For a Packa-ge Store Permit holder to be
legally authorized to sell beer, he must also have a Retail Dealer's
Off-Premise License. Article 667-3(f) provides as follows:
"Retail Dealer's Off-Premise License.
A Retail Dealer's Off-Premise License shall
authorize the holder thereof to sell beer in
a lawfIll container direct to the consumer,
but not for resale and not to be opened or
consumed on or near the premise where sold.
Annual State fee for a Retail Dealer's Off-
Premise License shall be Ten Dollars ($lO).'
A General Distributor's License, a Local Distributor's
License and a Branch Distributor's License are defined in the fol-
lowing subsections of Article 667-3:
"(b) General Distributor's License.
A general distributor's license shall authorize
the holder thereof to distribute or to sell
beer to other general distributors, branch dis-
tributors, loca'l distributors, retail dealers,
ultimate consumers and others only in the un-
broken original packages in which it is re-
ceived by him from the manufacturer, general
distributor, local distributor, or branch dis-
tributor and to serve free beer for consumption
or the licensed prenises. Annual state fee for
a general distributcr's license shall be Two
Hundred Dollars ($200,00).
"(c) Local Distributor's License, A
local distributor's license shall authorize
the holder thereof to serve free beer for
consumption on the licensed premises, and to
sell and distribute beer to retail dealers
and ultimate consumers in the county of his
-4953-
.
Hon. 0. N. Humphreys, page 6. (M-1015)
residence only in the unbroken original
packages in which it is received by him
from the manufacturer, general distributor,
branch distributor, or another local distri-
butor, and to sell and deliver beer to any
other distributors licensed in this state
to sell beer. Annual state fee for a local
distributor’s license shall be Fifty Dollars
($50.00).
“(d) B ranch Distributor’s License.
The holder of a Manufacturer’s or General
Distributor’s License after obtaining the
primary license in the county of his domi-
cile or residence, may establish other
places of business in any county wherein
the sale of beer is legal for the distri-
bution of beer upon obtaining a Branch Dis-
tributor’s License for each such place of
business as herein provided, and such Branch
Distributor may serve free beer for consump-
tion on the licensed premises. . . .’
The word “beer” is nowhere used in .Article 666-20(e).
The first paragraph of this Section 20(e) requires that all dis-
tilled spirits sold by a Private Club permittee must be purchased
from the holder of a Local Distributor’s Permit. There are no
other words of command or prohibition with regard to the purchase
of alcoholic beverages throughout the remainder of this Section.
The language in its fourth paragraph which may tend to contain
words of command or prohibition are as follows:
“Where a Mixed Beverage Permittee or a
Private Club Permittee is in an area where
there are no local distributors, the holder
of a Mixed Beverage Permit or a Private Club
Permit shall be empoweredto purchase alco-
holic beverages in the nearest ‘area where
~local distributors are located. . .‘I
The question in the instant request relates ,only ,to
private. clubs operating in a county in which a portion thereof
is at least wet for the sale of beer. In counties that are com-
gletely dry private clubs must operate under what is known as the
Locker System , a system which requires that each individual mem-
ber purchase his own liquor and beer and transport it to the club
-4954-
‘ .
Hon. 0. N. Humphreys, page 7. (M-1015)
for storage in an individual locker provided by the club. The
“Locker System” and “Pool System” are defined in Article 666-15(e),
Section 1 as follows:
” ‘Locker System’ shall mean that system
of alcoholic beverages storage whereby the club
rents to its members lockers wherein the member
may store alcoholic beverages for consumption by
himself or his guests. All such alcoholic bev-
erages so stored under the ‘locker system’ shall
be purchased and owned by the member as an indi-
vidual.
” ‘Pool System’ shall mean that system of
liquor storage where all members of the pool
participate ~equally in the purchase of all alco-
holic beverages and the replacement of all alco-
holic beverages is paid for by moneys assessed
and collected in advance from each member equally.
Such pool system shall be legal only in an area
which has been voted ‘wet’ for alcoholic beverages
by the majority of voters at an election held
under local opt ion .”
* * * * Y *
“(c-2) Notwithstanding any other provision of
this Section 15 me), the pool system shall be le-
gal for any private club operating in any county
where the sale of any alcoholic beverage has been
legalized, either throughout the entire county
or any portion of such county.”
From the fore&oing definitions it can be seen that, in
the case of a private club operating under the “Locker System” it
is not permissible to have the beer and li uor transported to the
club by an agent of the members. Arti,cle :66-4(b) prohibits the
transportat io. of liquor or beer in a dry area except by a person
who has purchased the same for his own consumption at a place where
the sale thereof was legal and transported the same to a place where
the possession thereof was legal.
While the language of Article 666-20(f) leaves a great
deal to be desired in clarity of expression, there is no indica-
tion that the Legislature intended to restrict the sources of
purchase of beer by private club permittees. If such an intention
-4955-
Hon. 0. N. Humphreys, page 8. (M-1015)
had been desired, the first three words of Article 666-20(e) could
just as easily have been changed to read "all alcoholic beverages".
Such language would then clearly have indicated that the Legisla-
ture intended that such private club permittees purchase theirs beer
from holders of a "Local Distributor's Permit". Since the Legis-
lature did not impose any such restriction in this new statute and
since the Legislature d.id not change the authority of 'a holder oft,
a General Distributor~ls License, a Local Distributor's License or
a Branch Distributor's License defined in Article 667-3 it can only
be concluded that the Legislature did not intend to limit the sources
of supply for beer as they did with distilled spirits. The Lan-
guage~ of the fourth paragraph of Article 666-20(e), then, can only
be viewed as dealing with transportation and not with the sources
of supply for the purchase of beer.
SUMMARY
-------
A Private Club Permittee operating under
the ~"Pool System "in a dry area may purchase
beer from the holder of a General Distributor's
License, Local Distributor's License, or Branch
Distributor'sLicense at the place of business
of such distributor and transport the same to the
private club provided (1) that such,club is the
holder of a Beverage Cartage Permit, (2) that
such beer is acquired only on the written order
of an officer or manager of the club, and (3)
that during the transportation thereof such beer
is accompanied by a written statement furnished
and signed by the selling such beer.
6 very truly,
P-
eneral of Texas
Prepared by Max P. Flusche, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns, Taylor, Chairman
W. E. Allen, Co-Chairman
-4956-
Hon. 0. N. Humphreys, page g0 (M-1015)
Larry Craddock
Howard Fender
S. J. Aronson
James Mabry
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assfstant
-4957-