Untitled Texas Attorney General Opinion

OF TEXAS AunTIN 11. -rExAn July 24, 1957 Honorable Stanley Kacir Opinion No. WW-189 County Attorney Bell County Re: Does Attorney General's Opin- Belton, Texas ion No. V-1121 apply to the issuance of a Beer RetailerIs On-Premises License to a non- profft, no capital stock, Dear Sir: Texas corporation? You have requested our opinion as to the applicebllity of Attorney General's Opinion No. V-1121 to the provisions of Section 5' (2) (h), Article 667, Vernon's Penal Code. More spe- cifically, your inquiry concerns whether a non-profit corpora- tion having no capital stock can qualify for a beer retailer's on-premise license under the above section, which reads in part as follows: "Section 5. "Any person may file an application for a license as a Manufacti.per, Distributor or Retail Dealer of beer invacatlon or in termtime with the County Judge of the county in which the ap- plicant desires to engage in such business. The County Judge shall refuse to approve the appli- cation for such license if he has reasonable grounds to believe and finds any of the following to be true: “2. If a Distributor or Retailer: '1. . . "(h) If a corporation, that the applicant iS not incorporated under the laws of this State; or that at least fifty-one percent (517) of the stock of such corporation is not owned at all times by citizens who have resided within this State for a period of three (3) years and who pos- sess the qualifications required of other appli- cants for licenses; . . *'I Honorable Stanley Kacir, page 2 hW189) Opinion V-1121 involved a determination of a similar problem concerning packa e store permits under the terms of +&ion 18 of Article 66% , Vernon’s Penal Code, which is as fol- . “Se ct ion 18a Wo person who has not been a citizen of Texas for a period of three (3) years immediately preced- ing the filing of his application therefor shall be eligible to receive a permit under this Act. No permit shall be issued to a corporation unless the same be incorporated under the laws of the State and unless at least fifty-one percent (51$) of the stock of the corporation is owned at all times by citizens who have resided within the State for a period of three years and who possess the qualifications re- quired of other applicants for permits; . . .‘I In our opinion the provisions of Section 5 (2) (h) of Article 667, and Section 18 of Article 666 are identical in re- quiring that a corporation be both a domestic corporation and be owned to the extent of 51% of its capital stock by residents of Texas who possess the qualifications required of other appli- cants for permits or licenses. Section 18 of Article 666 states the requirement positively, and states that no permit shall is- sue unless both requirements are fulfilled. Section 5 (2.) (h) of Article 667 states the m requirements negatively, and pro- vides that the County Judge shall refuse to issue a license if either of the requirements are found m to exist. This office, in Opinion V-1121, held that a non-profit, no capital stock corporation could not qualify for a package store permit o @diehere reaffirm the reasoning and holding of that opinion and appiy it to the present inquiry as a basis for our present opinion. Par your convenience we have attached a copy of Opinion V-1121. You are therefore advised that, applying the construc- tion and reasoning of Opinion V-1121, a non-profit, no capital stock corporation cannot qualify for the issuance of a beer re- tailer’s on-premise license under the provisions of Section 5 (2) (h) of Article 667, Vernon’s Penal Code. If such a corpora- tion were to apply for such a license it would be the mandatory duty of the County Judge to refuse to approve the application under the above Section of the Liquor Control Act. / - .. . Honorable Stanley Kacir, page 3 (WW-189) K beer retailer's on-premise license may not be issued to a non-profit, no capi.tal stock cor- poration because such corporation cannot qualify under Section 5 (2) (h) of Article 667, V.P.C. Yours very truly, JHM:zt:wb APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman C. K. Richards Marvin Thomas REVIEWEDFOR THE ATTORNEY GENERAL BY: Geo. P. Blackburn