Honorable Robert S. Calvert Opinion Nz. W-752
Comptroller of Public Accounts
Capitol Station Re: Whether the Comptroller
Austin, Texas can legally issue warrant
in payment of claim of a
beer distributing company
covering refund of excise
tax on beer sold to mili-
tary installations In
Dear Mr- Calvert: Texas.
By letter dated September 3, 1959, you state:
‘II ,am enclosing for your consideration
and approval claim of Pearl Beer Distri-
buting Company, 400 Nueces Street, Austin,
Texas, for $126.19 covering refund of excise
tax on beer sold to military installations
in Texas.
“This department recommended that appro-
priatlon be made to pay this clalm.by.the
Fifty-sixth Legislature ins order not to
deny the claimant his rights, If In fact
the claim could legally be paid. It is my
understanding that your approval and the
approval of the State Auditor was made to the
Legislature on the same condition. I am
therefore submitting the entire file covering
this claim and ask that you examine same and
advise me whether or not I can legally issue
warrant in payment of the claim.”
The file above referred to reflects that the Pearl Beer
Distributing Company of Austin, Texas, Is- seeking refund of
taxes paid on beer sold to Bergstrom Air Force Base.1 If such a
I-
The Pearl Beer Distributing Company holds a beer distributor’s
license issued pursuant to the Texas Liquor Control Act. (Article
%-1 et seq., Tex.Pen.Code). It is the exclusive distributing
agent of the Pearl Brewing Company of San Antonio, Texas. The
beer here involved was purchased by Pearl Beer Distributing
.
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Honorable Robert S. Calvert, Page 2 Opinion No. WW-752
refund Is to be legally made, the claimant must bring
himself within the terms of Article 667-23f (d), Tex.Pen.
Code, which reads:
“It is not intended that the tax levied
in Section 23 of Article 2 of the Texas
Liquor Control Act shall be colkcted on
beer shipped out of this State for Ton-
sumption outside this State or on beer
shipped to an installation of the National
Military Establishment, wherein the State
of Texas has ceded police jurisdiction,
for consumption’by military personnel.,wlth-
in said installation, and the board shail
provide forms on which distributors and
manufacturers may claim and obtain exemption
from the tax on such beer. If any dis-
tributor or manufacturer has paid that tax
on any beer and thereafter said beer is
shipped out of the state for consumption
outside this State or is shipped into any
installation of the National Military Estab-
lishment as referred to above, for consump-
tion by military personnel therein, a claim
for refund may be. made at the time and in
the manner prescribed by the Board or Ad-
ministrator. So much of any funds derived
hereunder as may be necessary, not to exceed
two per cent (2%) thereof, is hereby appro-
priated for such purpose. The Board may
promulgate rules and regulations generally
for the enforcement of this provision.”
In reference to the foregoing section, Attorney General’s
Opinion No. W-354 (January 31, 1958) states:
.According to the terms of the Texas
Liquor Control Act above quoted, the tax on
1 (Cont.)
Company from the latter company; the first taxable sale as
defined by the Texas Liquor Control Act occurred upon such
purchase and the tax was paid at that time. Consequently, there
is no question of a first taxable sale or importation being
made to or by a military establishment or Federal instru-
mentality, and Attorney General’s Opinion Na. kpd-598 has no
application.
fonorable Robert S. Calvert, Page 3 Opinion No. WI-752
beer is not to be collected, (or if collected,
refund)is to be made where the beer involved
is: (1) 'shipped to any installation of the
National Military Establishment' (2) 'wherein
the State of Texas has ceded police Jurisdiction',
and is (3) 'for consumption of military per-
sonnel within said installation'. Sec. 23+(d),
Art. 667, V.P.C. This is an exem;tion provision
and the distributor or manufacturer claiming such
exemption must bring himself clearly within the
provisions. Attorney General's Opinion O-7174
1940). Even assuming that requisites (1) and
t 3) are true, your question concerns Installa-
tions where police jurisdiction has not been
ceded to the Federal Government. Therefore,
it is our opinion that a refund or exemption,
as the case may be, cannot be allowed in the
situation described In your third question because
requisite (2) has not been met."
By letter dated October 23, 1959, the Secretary of State
advises that a search of the records of his office discloses
that there is no instrument on file by which the Governor of
Texas has ceded to the United States police jurisdiction over
the land in Travis County upon which Bergstrom Air Force Base
Is situated. Consequently, In line with the authority of the
Attorney General's 0 inion quoted above, and the clear purport
of Article 667-23+(d P , you are advised that the Pearl Beer
Distributing Company is not entitled to a refund of the taxes
Involved. The State is not legally liable for the return of
such taxes; therefore, a warrant in payment of the claim may
not be issued.
SUMMARY
The Comptroller of Public Accounts cannot
legally issue a warrant In payment of a claim
for refund of taxes paid on beer subsequently
sold to a military installation over which police
jurisdiction has not been ceded by the State of
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Hon. Robert S. Calvert, Page 4 Opinion No. WW-752
Texas to the United States Government.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
JNP:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
C. Dean Davis
Marietta Payne
W. Ray Scruggs
REVIEWEDFOR THE ATTORNEY
GENERAL
By: Leonard Passmore