Cadena Comercial USA Corp. D/B/A Oxxo v. Texas Alcoholic Beverage Commission ( 2017 )

IN THE SUPREME COURT OF TEXAS
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NO . 14-0819
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CADENA COMERCIAL USA CORP. D/B/A OXXO, PETITIONER,
v.
TEXAS ALCOHOLIC BEVERAGE COMMISSION, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued October 3, 2016
JUSTICE JOHNSON delivered the opinion of the Court, in which JUSTICE GREEN , JUSTICE
GUZMAN , JUSTICE LEHRMANN , JUSTICE DEVINE , and JUSTICE BROWN joined.
JUSTICE WILLETT filed a dissenting opinion, in which CHIEF JUSTICE HECHT joined.
JUSTICE BOYD did not participate in the decision.
This case requires us to interpret Texas’s “tied house” statutes that prohibit overlapping
ownership between the manufacturing, wholesaling, and retailing segments of the alcoholic beverage
industry.
Fomento Económico Mexicano, S.A.B. de C.V. (FEMSA) owns 20% of the stock in two
Heineken companies which in turn own breweries. The brewers hold non-resident manufacturer’s
permits in Texas. FEMSA also owns, through intermediate holding companies, 100% of Cadena
Comercial USA Corp., a company formed to operate convenience stores in Texas. When Cadena
sought a retailer’s permit to sell alcohol, the Texas Alcoholic Beverage Commission (TABC)
protested the permit’s being granted on the basis that FEMSA’s ownership interests in Cadena and
Heineken would violate the tied house statutes if the permit were granted. The county judge in an
administrative hearing agreed with the TABC. The district court judge did likewise, and the court
of appeals affirmed.
We affirm.
I. Background
A. Underlying Facts
Petitioner Cadena is a Texas corporation and wholly owned subsidiary of FEMSA, a Mexican
entity. Before 2010, FEMSA was directly involved in brewing beer. It transferred that part of its
business to Heineken N.V. and Heineken Holding, N.V. (collectively, the Heineken Group) in
exchange for more than 72 million shares of stock in Heineken N.V. and more than 43 million shares
in Heineken Holding N.V.—a 20% combined interest in the Heineken Group. FEMSA’s holdings
make it the largest shareholder in the Heineken Group except for the parent companies that own the
controlling shares. The Heineken Group, through a series of intermediary companies, owns three
brewers (the Heineken Brewers).
When FEMSA obtained its interest in the Heineken Group, it entered into a Corporate
Governance Agreement that entitles FEMSA to appoint one of Heineken Holding N.V.’s five
directors and two of ten members of the Supervisory Board of Heineken N.V. The Agreement also
specifies that FEMSA is not given “any right or control or influence or consultation right or other
form of cooperation” relating to the Heineken Group. Similarly, L’Arche Green, a parent company
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of the Heineken Group, reserved all rights to make decisions in its management of the Heineken
Group, “independently and at their sole discretion and without any requirement to consult or
cooperate with . . . FEMSA.” The Agreement bars the Heineken Group from acquiring any stock
in FEMSA.
FEMSA owns approximately 10,000 convenience stores concentrated in Mexico and
Colombia that operate under the name OXXO, and it continues to open more regularly. FEMSA
formed Cadena to extend FEMSA’s retail convenience store business into Texas. Cadena wanted
to sell wine and beer in its stores, which in Texas would require it to have a wine and beer retailer’s
off-premises consumption permit. When Cadena tried to obtain one of these permits from the
TABC, routine financial disclosures it made during the application process revealed FEMSA’s 100%
ownership of Cadena as well as its significant ownership interest in the Heineken Group, which
owns the Heineken Brewers that, in turn, hold Texas non-resident brewer’s permits. The TABC
protested Cadena’s permit on grounds that granting it would result in a violation of the Texas tied
house statutes, and rejected its application.
B. Texas’s Tied House Statutes
The Texas tied house statutes are found in the Texas Alcoholic Beverage Code. See TEX .
ALCO . BEV . CODE §§ 102.01–.82. The genesis of the provisions was the Liquor Control Act, which
the Legislature adopted two years after the repeal of Prohibition. See Texas Liquor Control Act, 44th
Leg., 2d C.S., ch. 467, §§ 1–23, 1935 Tex. Gen. Laws 1795. The Liquor Control Act’s progeny were
eventually codified into the Alcoholic Beverage Code. An Act Adopting the Alcoholic Beverage
Code, 65th Leg., R.S., ch. 194, § 1, 1977 Tex. Gen. Laws 391 (codified as amended in TEX . ALCO .
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BEV . CODE §§ 1.01–251.82). The catalyst for the tied house provisions was a fear of returning to
the state of affairs before Prohibition when tied houses played what was thought to be a substantial
role in over-intoxicating society. The provisions are designed to prevent certain overlapping
relationships between those engaged in the alcoholic beverage industry at different levels, or tiers.
See TEX . ALCO . BEV . CODE § 102.01(a)–(b).
Pre-Prohibition tied houses generally developed from tavern owners selling their taverns to
brewers and becoming the brewers’ tenants. See generally, D. M. Knox, The Development of The
Tied House System in London, 10 OXFORD ECON . PAPERS, NEW SERIES, no. 1, 1958, at 66–83.
Financial conditions and other factors made these agreements a near-necessity for tavern owners to
survive economically. Most of the agreements included a stipulation that the tavern would only sell
the brewer–landlord’s products. The brewer then had a vested interest in the tavern selling as much
of the brewer’s beer as possible, with little or no regard for the personal or societal effects. This tied
house phenomenon contributed to the push for Prohibition.
When Prohibition ended, lawmakers started from a relatively clean slate with respect to
regulating the alcoholic beverage industry, and their goal was to prevent a return to the
pre-Prohibition status. See TEX . ALCOHOLIC BEVERAGE COMM ’N , THE HISTORY OF THE TEXAS
ALCOHOLIC BEVERAGE COMMISSION 1–2 (2005). One of the targets was tied house relationships.
In an attempt to prevent these relationships from forming, the Code provides for “strict adherence
to a general policy of prohibiting the tied house and related practices.” TEX . ALCO . BEV . CODE
§ 102.01(b). The Code defines “tied house” as
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any overlapping ownership or other prohibited relationship between those engaged
in the alcoholic beverage industry at different levels, that is, between a manufacturer
and a wholesaler or retailer, or between a wholesaler and a retailer, as the words
“wholesaler,” “retailer,” and “manufacturer” are ordinarily used and understood . . . .
Id. § 102.01(a). The Code contains numerous provisions designed to achieve this overarching goal
by separating the industry into three independent tiers: manufacturing (brewing), distribution, and
retail. See id. §§ 102.01–.82. It attempts to achieve this separation by prohibiting cross-tier
relationships. Several of these provisions served as grounds for the TABC’s protest of Cadena’s
application for a permit.
C. Procedural Background and Positions of the Parties
During the retail permit application process, an applicant such as Cadena must submit
designated disclosure forms to the TABC. Id. §§ 26.03, 61.31(a). Based on information in these
forms, the TABC either protests the application or grants the permit. Id. § 61.31(a). If the TABC
finds there are reasonable grounds to protest the permit, then it is required to do so and reject the
application. Id.
If the TABC rejects a permit application, the applicant may request an administrative hearing
before the county judge in the county in which the applicant desires to conduct business. Id.
§§ 61.31–.32. If the county judge finds no legal grounds to refuse the application, the judge orders
the TABC to grant the permit. See id. § 61.32. If the judge denies the application, the applicant has
thirty days to appeal to the district court. See id. § 61.34.
Here, the TABC determined that Cadena’s connection to the Heineken Brewers through
FEMSA’s 100% ownership of Cadena and large ownership interest in the Heineken Group meant
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that granting the retail permit would result in Cadena having overlapping interests in the
manufacturing and retail levels of the industry in violation of four separate provisions of the tied
house statutes. Thus TABC protested and rejected Cadena’s application.
The matter then proceeded to an evidentiary hearing before the county judge. At the hearing,
the parties stipulated to the corporate relationships between Cadena, FEMSA, and the Heineken
companies. The TABC further stipulated that the five statutory provisions at issue were the only
grounds for its protesting Cadena’s application. During the hearing, the TABC’s licensing director
and an expert in alcoholic-beverage industry laws testified that if an entity in one tier of the industry
owned even one share of stock in a member of another tier, the overlapping ownership would violate
the statutory tied house prohibitions. The TABC argued that FEMSA’s interests in Cadena and the
Heineken Brewers were prohibited “interests” under the Alcoholic Beverage Code under any
interpretation. Although the TABC disputed that actual cross-tier control of entities is required to
implicate the tied house restrictions, it nevertheless asserted that FEMSA could control the Heineken
Brewers because of its ability to appoint directors to the Heineken Group’s boards. It also argued
the court should impute this connection to Cadena for regulation purposes.
Conversely, Cadena argued that the only “interest” sufficient to violate the tied house
prohibitions is one allowing simultaneous actual financial or administrative control of entities in
different tiers. Under Cadena’s interpretation, its permit application should have been granted as a
matter of law because FEMSA has no ability to manage or control either the Heineken Holding
Companies or the Heineken Brewers. As a result, Cadena argued, granting its application would not
violate the tied house statutes because no company within the business structure would have
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managing control over entities in more than one tier. Cadena further maintained that FEMSA’s
remote connection with the Heineken Brewers was too attenuated to implicate historical tied house
concerns, and that the interest could not be imputed to Cadena without piercing the corporate veils
of all the entities involved.
Following the administrative hearing, the county judge denied Cadena’s application based
on the statutory grounds cited by the TABC, finding that: (1) Cadena “has a real interest in the
business or premises of the holder of a manufacturer’s or distributor’s license”; (2) “[f]or licensing
purposes, as a subsidiary of FEMSA, [Cadena] is a manufacturer”; (3) “[f]or licensing purposes, as
a subsidiary of FEMSA, [Cadena] has an interest in the business of a brewer”; and (4) issuing the
requested permit “would violate Sections 102.01(c), (h), 102.07(a)(1), and 102.11(1) of the Code.”
Cadena appealed to the district court, which affirmed the administrative order. Cadena appealed
again.
The court of appeals focused on section 102.07(a)(1), which provides that “no person who
owns or has an interest in the business of a . . . brewer . . . may . . . own or have a direct or indirect
interest in the business . . . of a retailer.” 449 S.W.3d 154, 159, 171 (Tex. App.—Austin 2014); TEX .
ALCO . BEV . CODE § 102.07(a). The court determined that the dispositive issue was whether
FEMSA’s shares in Heineken, paired with FEMSA’s indirect ownership of Cadena, would violate
section 102.07(a) if Cadena’s permit application were granted. Id. It concluded “the term ‘interest,’
as used in section 102.07(a)(1), broadly encompasses any commercial or economic interest that
provides a stake in the financial performance of an entity engaged in the manufacture, distribution,
or sale of alcoholic beverages.” Id. at 166. The court further concluded that FEMSA owns an
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interest in the business of Cadena, a retailer, by virtue of its 100% indirect ownership interest, and
rejected Cadena’s corporate separateness arguments. Id. at 169–70. It reasoned that the definition
of “business” includes more than merely having an interest in the assets of the business. The court
concluded that even though FEMSA only indirectly owned Cadena and only indirectly held stock
in the Heineken Brewers, the broad meaning of “interest” and “business” did not implicate the
principles behind recognizing separate corporate identities, and under the statute FEMSA owned an
interest in both. Id. at 168.
Finally, the court determined that Cadena’s equal protection claim failed because Cadena
failed to prove that the TABC granted permits to any similarly situated entities. Id. at 172. Although
Cadena pointed to evidence of pervasive cross-tier ownership interests that violated the court’s
reading of section 102.07(a), Cadena did not show that any of the permitted entities held “similarly
significant cross-tier investment interests.” Id.
Before this Court, Cadena raises the same three claims it did in the court of appeals: (1) a
plain reading of section 102.07(a) can only lead to the conclusion that the Legislature intended a
control-based test when determining which interests come under the statute, and any other reading
renders the statute unconstitutionally vague and unenforceable; (2) corporate separateness and
veil-piercing principles are implicated and proper application of these rules would prevent Cadena’s
licensure from being a violation of the Code because FEMSA’s interest in both Cadena and the
Heineken Brewers is attenuated; and (3) the TABC’s selective application of the statute to Cadena’s
permit application violates equal protection principles because of the pervasive cross-tier holdings
by other entities across the State. Cadena also expresses concern throughout its briefing that the
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court of appeals’ expansive interpretation provides the TABC authority to reject a permit application
or cancel a permit based on a person’s ownership of a single share of stock in two separate tiers.1
The TABC responds that (1) the court of appeals’ reading of the interests implicated by
102.07(a) accurately conforms to the statute’s plain meaning and the Legislature’s desire to maintain
strict separation between the three tiers of the alcoholic beverage industry; (2) Cadena’s veil-piercing
arguments rest on the faulty assumption that “interest in the business of a brewer” is tantamount to
legal ownership; and (3) Cadena’s equal enforcement claim is meritless because there is no evidence
of permittees that are similarly situated to Cadena, nor of any suspect or improper motivation on the
part of the TABC. The TABC also characterizes the one-share issue as a red herring designed to
divert attention from FEMSA’s significant interests in both Cadena and the Heineken Brewers.2
II. Standard of Review
The Alcoholic Beverage Code provides that a party whose application is refused, or whose
permit is cancelled or suspended, may appeal that decision. TEX . ALCO . BEV . CODE § 11.67(a),
61.34(a). The Code requires courts to review challenged decisions under the substantial evidence
rule pursuant to the Administrative Procedure Act (APA). Id. § 11.67(b). The APA dictates that
“[t]he scope of judicial review of a state agency decision . . . is as provided by the law under which
review is sought.” TEX . GOV ’T CODE § 2001.172; State v. Pub. Util. Comm’n of Tex., 344 S.W.3d
349, 355 (Tex. 2011).
1
Amicus briefs in support of Cadena have been submitted by The Texas Association of Business and McLane
Company, Inc.; Texas Public Policy Foundation; and Murphy Oil USA Inc.
2
Amicus briefs in support of the TABC have been submitted by The Beer Alliance of Texas, W holesale Beer
Distributors of Texas, and the Center for Alcohol Policy.
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Statutory interpretation is the primary issue in this appeal, and that involves questions of law
we review de novo. Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016). This is true
even when we are reviewing agency decisions. See, e.g., State v. Shumake, 199 S.W.3d 279, 284–85
(Tex. 2006). An agency’s interpretation of a statute it enforces “is entitled to ‘serious consideration,’
so long as the construction is reasonable and does not conflict with the statute’s language.” R.R.
Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).
The APA provides that cases should be reversed or remanded if the administrative decision is “in
violation of a constitutional . . . provision,” is “not reasonably supported by substantial evidence,”
or the decision is “arbitrary or capricious or characterized by an abuse of discretion.” TEX . GOV ’T
CODE § 2001.174(2)(A), (E), (F); see also Pub. Util. Comm’n, 344 S.W.3d at 356.
III. Analysis
The TABC originally asserted four statutory provisions as grounds for protesting Cadena’s
application. The county judge and district court determined that each of the provisions would
support rejecting a permit. However, the court of appeals only considered section 102.07(a) because
it concluded the provision was dispositive. 449 S.W.3d at 161–62, 171. In determining whether the
court of appeals was correct, we consider three main issues: (1) the reach of section 102.07(a) and,
in particular, the meaning of the phrase “an interest in the business of a brewer”; (2) whether the
TABC properly disregarded the separate corporate statuses of the entities involved when deciding
if issuing a permit to Cadena would result in a violation of section 102.07(a); and (3) whether the
TABC’s protesting of Cadena’s application, and the subsequent sustaining of that protest by the
lower courts, violated Cadena’s equal protection rights.
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A. “Interest in the Business of a Brewer”
Cadena’s basic issue with the court of appeals’ holding is summarized by the following
language from its briefing:
In order to find a violation, the court of appeals expansively defined the term
“interest” to “broadly encompass[] any commercial or economic interest that
provides a stake in the financial performance of an entity engaged in the manufacture,
distribution, or sale of alcoholic beverages.” These words appear nowhere in the
statute.
Brief for Petitioner at 8 (alteration in original) (citation omitted).
Our fundamental goal when reading statutes “is to ascertain and give effect to the
Legislature’s intent.” Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). To do this,
we look to and rely on the plain meaning of a statute’s words as expressing legislative intent unless
a different meaning is supplied, is apparent from the context, or the plain meaning of the words leads
to absurd or nonsensical results. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384,
389–90 (Tex. 2014). Words and phrases “shall be read in context and construed according to the
rules of grammar and common usage.” Id. (citing TEX . GOV ’T CODE § 311.011). We presume the
Legislature “chooses a statute’s language with care, including each word chosen for a purpose, while
purposefully omitting words not chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011). In that vein, we take statutes as we find them and refrain from rewriting the
Legislature’s text. Entergy Gulf States v. Summers, 282 S.W.3d 433, 443 (Tex. 2009).
The relevant language in section 102.07(a) provides
Except as provided in Subsections (b), (d), and (g), no person who owns or has an
interest in the business of a . . . brewer . . . may . . . own or have a direct or indirect
interest in the business, premises, equipment, or fixtures of a retailer . . . .
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TEX . ALCO . BEV . CODE § 102.07(a). These words and phrases are not to be considered in isolation,
but rather in the context of the statute as a whole. Meritor Auto., Inc. v. Ruan Leasing Co., 44
S.W.3d 86, 90 (Tex. 2001). Put differently, our objective is not to take definitions and mechanically
tack them together—as Cadena claims the court of appeals did—rather, we consider the context and
framework of the entire statute and meld its words into a cohesive reflection of legislative intent.
See Anheuser-Busch, L.L.C. v. Harris Cty. Tax Assessor-Collector, ___ S.W.3d ___, ___ (Tex.
2016). Still, we are concerned with the definitions of the specific words because they provide the
material that is refined with statutory context. The definitions of some terms are either provided by
the Legislature or clear based on their common usage and meaning. For others, we must look to the
statutory context to provide meaning.
We begin with definitions the Code provides. TEX . GOV ’T CODE § 311.011; Hernandez v.
Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). The Code defines “person” as “a natural person or
association of natural persons, . . . corporation, organization, or the manager, agent, servant, or
employee of any of them.” TEX . ALCO . BEV . CODE § 1.04(6). Cadena, FEMSA, the Heineken
Group, the Heineken Brewers, and each relevant intermediate holding company are, therefore,
“person[s]” under the statute. Although the Legislature did not provide the definition of “brewer,”
its ordinary meaning is intuitive. Moreover, Webster’s defines “brew” as “to prepare (as beer or ale
from malt and hops) by steeping, boiling, and fermentation.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 275 (2002). The same dictionary defines “brewery” as “a building
or plant where beer is manufactured.” Id. The Heineken Brewers brew beer in breweries, thus they
are brewers within the Code’s meaning. And if Cadena were granted a wine and beer retailer’s
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off-premise consumption permit, it would be a “retailer” as the term is used in section 102.07(a)(1).
See TEX . ALCO . BEV . CODE §§ 26.01, .03. Finally, because the Legislature has not provided specific
definitions for many terms, we look to their plain and ordinary meaning, unless a different meaning
is apparent from the context of the statute. In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014).
Section 102.07 is within Chapter 102 of the Code. This Chapter is entitled “Intra-Industry
Relationships” and provides a comprehensive framework for regulating everything from overlapping
ownership among the three tiers down to specific financial transactions and gifts and promotions.
See TEX . ALCO . BEV . CODE §§ 102.01–.82. Subchapter A, which includes section 102.07(a),
provides expansive and comprehensive statutes that prohibit a broad range of cross-tier relationships
and influences. See id. §§ 102.01–.22. Further, the Legislature’s express policy statements are
indicative of legislative intent. Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); R.R. Comm’n of
Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). The Code
expresses a policy of “strict separation between the manufacturing, wholesaling, and retailing levels”
of the alcoholic beverage industry in Texas to prevent “the creation or maintenance of a ‘tied
house.’” TEX . ALCO . BEV . CODE § 6.03(i). Section 102.01, which first defines a tied house as “any
overlapping ownership or other prohibited relationship” among the three tiers of the alcoholic
beverage industry, reiterates the State’s “general policy of prohibiting the tied house and related
practices.” Id. § 102.01(a), (b) (emphasis added). Section 102.75(c) mandates “the independence
of members of the three-tier system.” Id. § 102.75(c). From all this, the Legislature clearly was
concerned not only with preventing paradigmatic, pre-Prohibition tied houses, but also with “related
practices” that might negatively affect public health and safety. See id. § 102.01(b). Although this
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Court has not previously addressed the Texas tied house provisions, courts that have are in accord
with the foregoing. See Dickerson v. Bailey, 336 F.3d 388, 397 (5th Cir. 2003); S.A. Disc. Liquor,
Inc. v. Tex. Alcoholic Beverage Comm’n, 709 F.2d 291, 293 (5th Cir. 1983); Neel v. Tex. Liquor
Control Bd., 259 S.W.2d 312, 316 (Tex. Civ. App.—Austin 1953, writ ref’d n.r.e.); Tex. Liquor
Control Bd. v. Cont’l Distilling Sales Co., 199 S.W.2d 1009, 1014 (Tex. Civ. App.—Dallas 1947,
writ ref’d n.r.e.); see also Mayhue’s Super Liquor Store, Inc. v. Meiklejohn, 426 F.2d 142, 147 (5th
Cir. 1970) (noting that “the liquor business has been the subject of severe legislative restraints”).
With this history and structure in mind, we turn to the meaning of “an interest in the business
of a . . . brewer.” We start with the term “interest,” which the Legislature did not define. At the time
the tied house statutes were enacted, Black’s Law Dictionary defined “interest” as “[t]he most
general term that can be employed to denote a property in lands or chattels” or “a right to have the
advantage accruing from anything.” Interest, BLACK ’S LAW DICTIONARY (3d ed. 1933). English
language dictionaries at the time took a similarly broad view. For instance, the Oxford Dictionary
defined “interest” to include a “[l]egal concern, title, right,” “pecuniary stake,” “advantage,” “profit,”
and “party having a common interest.” THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH
427 (7th ed. 1919). Contemporary dictionaries confirm that “interest,” standing alone, still has a
broad meaning. See WEBSTER’S NEW WORLD COLLEGE DICTIONARY 758 (5th ed. 2016) (“[A] right
or claim to something . . . as a business, in which one participates or has a share.”); Interest,
BLACK’S LAW DICTIONARY (10th ed. 2014) (“Collectively, the word includes any aggregation of
rights, privileges, powers, and immunities . . . .”).
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The court of appeals reasoned that “the term ‘interest’ invokes many different definitions and,
without a modifier, could in the abstract be so broad as to be vague and ambiguous.” 449 S.W.3d
at 165. We agree with that general proposition. Cadena contends that “interest” should be construed
narrowly or it will be vague and unenforceable. With that, we do not agree. If an undefined word
used in a statute has multiple and broad definitions, we presume—unless there is clear statutory
language to the contrary—that the Legislature intended it to have equally broad applicability. See,
e.g., Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 59 (Tex. 2015). When faced with a term that
is so broad that it borders on being ambiguous, we look to the statutory context to limit the possible
correct meanings. See, e.g., id. (“Not surprisingly, ‘supported,’ the key term here, is subject to at
least six disparate definitions in its verb form alone, with many of those including more nuanced
sub-definitions. By reading the term in context, however, we can narrow the universe of possible
definitions to the most apposite.” (citations omitted)). Thus, when interpreting broad,
context-sensitive terms such as “interest,” we must be sensitive to the context.
Looking to the surrounding statutory environment for assistance in determining the meaning
of “interest,” we note that the Code contains instances of the term throughout, both with and without
modifiers. “Interest” is variously referred to as a “pecuniary interest,” “an ownership interest,” “a
financial interest,” “a real interest,” “an interest of any kind,” and “any interest.” See, e.g., TEX .
ALCO . BEV . CODE §§ 5.05(a)(3), 61.44(a)(1), (b)(1), 61.71(a)(21), 102.01(c), 102.10(b). Further,
the Code uses the specific terms “corporate stock,” “affiliate,” “director,” “officer,” and “control.”
See, e.g., id. §§ 11.48(a), 37.07(1), 102.14, 102.15(a), 102.18. Importantly, section 102.07(a)(1)
refers to a “direct or indirect interest” in the business of a retailer. Id. § 102.07(a)(1). Cadena argues
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that the multiple references to different kinds of interests and this latter reference to a “direct or
indirect interest” means that the Legislature intended for an interest in the business of a retailer to
be viewed more broadly than an interest in the business of a brewer. We disagree. The term
“interest,” standing alone, necessarily subsumes the other modifiers that might limit the term. For
example, either the term “an indirect interest” or the term “a direct interest,” separately considered,
is narrower than “an interest.” “Interest” includes both of these, in addition to any other interest that
is neither direct nor indirect. Further, “an interest” also subsumes corporate stock,
affiliate–subsidiary relationships, and a level of control. But the term “interest,” as used in the
context of this statute, does not include any interest, as Cadena contends the court of appeals’
holding requires. Rather, the court of appeals pointed to other modified uses of “interest” throughout
the Code as having one thing in common: they all refer to commercial and economic interests.
Consideration of this common theme leads to the conclusion that the Legislature was concerned with
interests that result from the various business dealings among and between participants in the alcohol
industry. And here, as evidenced by the lack of a narrowing modifier, the Legislature used the term
“interest” broadly and intended to include all these interests.
However, the term is then narrowed by the phrase “in the business of a brewer.” Having
determined the plain meaning of “brewer,” we must determine what “the business” of a brewer
means. The definition of business is more finite than the definition of interest. “Business” generally
refers to “[a] commercial enterprise carried on for profit; a particular occupation or employment
habitually engaged in for livelihood or gain.” Business, BLACK’S LAW DICTIONARY (10th ed. 2014).
Combining this with the meaning of “brewer”—and with the contextualized definition of “interest”
16
discussed above—leads to the conclusion that “an interest in the business of a brewer” means what
the court of appeals said it did: the phrase “broadly encompasses any commercial or economic
interest that provides a stake in the financial performance of an entity engaged in the
manufacture . . . of alcoholic beverages.” 449 S.W.3d at 166. Cadena asserts it was error for the
court of appeals to isolate the specific words, define them individually, and then combine them to
produce this clause. While the court of appeals’ approach might not be appropriate for every case,
here it was. Its interpretation meshes with both the plain language and context of the statute’s words,
as well as the Legislature’s policy of strict separation between the tiers of the industry.
Next, we turn to Cadena’s other arguments, beginning with its argument that an “interest in
the business of a brewer” should only extend to those actually engaged in the business of brewing
beer, not a brewer’s stockholders. We disagree for two reasons. First, this interpretation would
effectively eliminate “interest” from the statute. At the very least, Cadena’s reading would modify
the term “interest” into something akin to “engaged.” When the Legislature uses a word or phrase
in one part of a statute but excludes it from another, the term should not be implied where it has been
excluded. Safe Future & Clean Water, 336 S.W.3d at 628. A look to other Code provisions shows
that the Legislature was careful to use the term “engage” when it sought to limit a statute’s
applicability to those who were directly participating in one of the three tiers of the industry. See,
e.g., TEX . ALCO . BEV . CODE §§ 61.44(a)(2), 61.71(a)(29), 102.01(a), 102.09, 102.15(a). Had the
Legislature intended to limit the meaning of a “person with an interest in the business of a . . .
brewer” to those engaged in brewing beer, we presume it would have said just that. See TGS-
NOPEC Geophysical, 340 S.W.3d at 439; Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904
17
S.W.2d 656, 659 (Tex. 1995) (“When the Legislature employs a term in one section of a statute and
excludes it in another section, the term should not be implied where excluded.”). Our interpretation
finds reinforcement in the broad meaning of “interest” established above. Second, we agree with
the TABC that interpreting section 102.07(a) to extend only to brewers would subvert legislative
intent. Holding that only a brewer, or someone in the shoes of a brewer, is a “person with an interest
in the business of a . . . brewer” would open the door for companies across the alcohol industry to
circumvent the tied house provisions. Such a reading would significantly frustrate the Legislature’s
expressly stated purpose of “strict separation” and preventing “any overlapping ownership” among
the three tiers of the industry. See TEX . ALCO . BEV . CODE §§ 6.03(i), 102.01(a).
Cadena also argues that the relationships prohibited in other provisions of the Code provide
support for its argument that FEMSA’s relationship with the Heineken Brewers is not included in
section 102.07(a). For example, section 102.11 prohibits a “manufacturer or distributor” from
“directly or indirectly, or through a subsidiary, affiliate, agent, employee, officer, director, or firm
member,” from owning “any interest in the business or premises of a retail dealer of beer.”
Id. § 102.11. An “affiliate” is “a person who controls, is controlled by, or is under common control
with another person.” TEX . BUS. ORGS. CODE §1.002. Cadena asserts that this is evidence the
Legislature intended only to prohibit typical tied houses and that the failure to use such terms as
affiliate or subsidiary in section 102.07(a) shows the Legislature intended something more narrow.
But this argument is fundamentally flawed because it fails to consider the Legislature’s express
policy of strict separation between the three tiers. A fair reading of section 102.07(a) in light of the
Legislature’s multiple policy statements shows the statutes are designed to prevent far more than the
18
historical paradigm of a tied house, in which manufacturers directly owned retail outlets. When
viewed in context, this statute manifests Legislative intent to prevent more tenuous relationships.
See TEX . ALCO . BEV . CODE § 102.01(b) (providing for “strict adherence to a general policy of
prohibiting the tied house and related practices” (emphasis added)). The sheer number of statutes
the Legislature enacted and the different approaches it took in proscribing the prohibited
relationships, both specific and broad, reinforce its clear intent. Compare, e.g., id. § 102.14
(specifically prohibiting manufacturers and wholesalers from providing fixtures and equipment to
anyone selling brewery products for on-premises consumption), with id. § 102.11(1) (broadly
prohibiting a manufacturer from directly or indirectly owning any interest in a retailer).
Cadena further claims that the court of appeals was wrong to consider section 102.01(a)’s
definition of tied house and use that language to support its conclusion that any overlap between tiers
is forbidden. Cadena’s reasoning is two-fold: (1) section 102.01(a) contains a definition and not a
prohibition, and (2) the phrase “tied house” does not appear anywhere in section 102.07. Both of
these statements are true. But it would be nonsensical to read the particular sections Cadena
references without considering them in concert with section 102.01, which provides overarching
context for fairly reading the entire statute. The statutory definition of tied house is not a narrow
provision found in an unrelated statute; it undergirds and frames the purpose of Chapter 102. Each
subsequent provision is informed and given context by it. At any rate, Cadena’s application was not
denied because FEMSA’s cross-tier interests violated section 102.01(a). It was denied because the
relationship violated 102.07(a). Even without considering section 102.01, section 102.07—by its
language, structure, and the multiple other policy statements found throughout the Code—requires
19
strict separation. Thus, section 102.07(a), by its own terms, prohibits a person who has an interest
in the business of a brewer from also having an interest in the business of a retailer.
Cadena claims that the court of appeals applied the statute “backwards” because the structure
of 102.07 is such that it only applies to those with an interest in the business of a brewer who are
trying to meddle in a retailer’s business—i.e., the typical tied house relationship. Cadena correctly
points out that there is a great deal more that a brewer is prohibited from doing with a retailer than
the reverse. Section 102.07(a) provides that no person who meets a certain condition may meet any
of the eight separate conditions set out in subsections (a)(1) through (a)(8). See TEX . ALCO . BEV .
CODE § 102.07. While there are more things a brewer cannot do with respect to a retailer than vice
versa, the statute does not mandate that we apply it in any particular manner. The
condition-triggering verbs in subsections (a) and (a)(1) are both in the present tense and contemplate
current and future holdings. If the Legislature only intended to prevent those with preexisting
interests in brewers from acquiring interests in retailers, it could have, and presumably would have,
said so. See TEX . GOV ’T CODE § 311.012(a) (“Words in the present tense include the future tense.”);
see also TEX. LEGISLATIVE COUNCIL, TEXAS LEGISLATIVE COUNCIL DRAFTING MANUAL § 7.35 (Jan.
2017) (directing drafters to “[u]se present tense whenever possible”). To hold that this statute only
flows in one direction would prevent those with interests in brewers from gaining an interest in
retailers, but not retailers from gaining interests in brewers. Although a brewer controlling a retailer
is the typical exemplar of a tied house, the statute’s language, as well as the various policy
statements, demonstrate legislative intent to provide strict separation going both ways. The reading
Cadena proposes is out of step and completely at odds with that policy.
20
Additionally, Cadena claims that the court of appeals’ interpretation of the statute effectively
gives the TABC a new power that provides it carte blanche to grant or reject an application for a
permit with no guiding principles on which applicants can rely. We disagree. First, this is not a new
power conferred on the TABC; it is simply an interpretation of the power the TABC has always had
under the Code. Second, the TABC does not have carte blanche to grant or reject any application.
It only has the power to reject applications that violate section 102.07 or some other provision of the
Code. See Tex. Nat. Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex.
2005) (holding that, despite petitioner’s arguments to the contrary, “the Commission has statutory
authority to pursue an enforcement action in district court”). Again, section 102.07 is only violated
when a person with a direct or indirect interest in the business of a retailer also has a “commercial
or economic interest that provides a stake in the financial performance” of an entity engaged in the
manufacturing or distributing of alcoholic beverages. See 449 S.W.3d at 165. While we agree that
the statement is broad, this does not render the statute unenforceable.
Cadena contends that the court of appeals read into the statute a “potential for influence”
standard that finds no basis in the statute’s language. Regardless of whether the court of appeals did
so, we do not, as we have explained.
Cadena also raises the argument that the multiple references to “a permittee covered under
Subsection (a)” in the exceptions in section 102.07 mean that section 102.07(a) only applies to
permittees. See TEX . ALCO . BEV . CODE §§ 102.07(b), (d), (e), (g). This is wrong for at least two
reasons. First, a person with an interest in the business of a brewer can be a permittee, but the
language’s reach extends well beyond permittees. Both permittees and entities like FEMSA are
21
covered by subsection (a), but only a permittee can avail itself of the exceptions in the statute.
Second, the term “permittee” appears over 500 times in the Code. If the Legislature had intended
section 102.07(a) to include only permittees, it is safe to say it would have used that term.
Finally, Cadena claims that the court of appeals’ use of the word “significant” to describe
FEMSA’s interest in the Heineken Brewers without further guidance renders section 102.07(a)
impermissibly vague. But we view the court of appeals’ consideration of “significant” in reaching
its conclusion in light of the facts of this case. See Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d
566, 594 (Tex. 2013) (citing TEX . CONST . art. I, §13, art. II, §1). We conclude that under the statute,
an interest in the business of a brewer exists when a person has a commercial or financial
interest—significant or otherwise—that provides a stake in the financial performance of an entity
or person engaged in brewing. Further, Cadena can hardly make a credible argument that FEMSA’s
115 million shares in the Heineken Group is not significant when it is unwilling to give it up so
Cadena can obtain the permit it seeks.
FEMSA, by its stock ownership in the Heineken Group, has a commercial or economic
interest that provides a stake in the financial performance of an entity engaged in brewing alcoholic
beverages. This interest, coupled with FEMSA’s indirect ownership interest in Cadena, who would
be a retailer of alcoholic beverages if the permit were granted, would violate section 102.07. Thus,
we agree with the court of appeals’ interpretation of section 102.07(a) and now turn to Cadena’s
corporate separateness arguments to determine if FEMSA’s cross-tier interests must be excluded
from consideration because the corporations involved are separate entities.
B. Corporate Separateness
22
Cadena argues that the doctrine of corporate separateness applies in the regulatory context
and cannot be ignored in determining whether FEMSA has an interest in the business of the
Heineken Brewers or a direct or indirect interest in the business of Cadena. Cadena cites cases
holding that subsidiaries are distinct from parent companies because parent companies are simply
shareholders that do not own an interest in the business of the companies in which they hold stock.
Thus, Cadena argues the TABC erred by, in effect, piercing the corporate veils and imputing the
Heineken Brewers’, Cadena’s, and each intermediate holding company’s interests to FEMSA, absent
evidence of abuse of the corporate form, or use of it to circumvent a statute. See SSP Partners v.
Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 451 (Tex. 2008).
While we have no dispute, generally, with Cadena’s reading of the cases it references, we
disagree with the application of the law it proposes. As the TABC points out, each of the cases
Cadena cites regarding the principle of corporate separateness addresses that doctrine in the context
of tort or contract liability, or other similar circumstances. E.g., Miles v. Am. Tel. & Tel. Co., 703
F.2d 193, 197 (5th Cir. 1983) (refusing to impose liability on parent company for tortious invasion
of privacy); SSP Partners, 275 S.W.3d at 451–52 (refusing to hold subsidiary liable for parent
company’s failure to indemnify retailer); S. Union Co. v. City of Edinburg, 129 S.W.3d 74, 89 (Tex.
2003) (refusing to collapse corporate identity for taxing purposes); BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 799 (Tex. 2002) (refusing to collapse corporate separateness for
jurisdictional purposes); Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986) (reinstating a
jury finding on sham entity status and not allowing the corporate fiction to insulate individuals from
their liability on the corporation’s promissory note); Gentry v. Credit Plan Corp. of Hous., 528
23
S.W.2d 571, 573 (Tex. 1975) (affirming the principle of alter ego in tort liability); Bell Oil & Gas
Co. v. Allied Chem. Corp., 431 S.W.2d 336, 341 (Tex. 1968) (holding parent corporation not liable
for contract obligations of affiliated corporation); Auto. Mortg. Co. v. Ayub, 266 S.W. 134, 135 (Tex.
1924) (holding that shares of stock in a corporation are entirely separate and distinct from the
corporation’s property); but cf. R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 690
(Tex. 1992) (upholding the separate corporate existence but because the Railroad Commission rule
in question contemplated such, not because of common-law principles that would require that result).
But, as the TABC correctly points out, corporate separateness principles are different in the
regulatory context. For example, in Beneficial Financial Co. of Midland v. Miskell, we were faced
with a similar issue. 424 S.W.2d 482, 483–84 (Tex. 1968). Beneficial Financial Company of
Midland was a wholly owned subsidiary of Beneficial Finance Company of Delaware. Id. at 483.
Beneficial Delaware owned all of the stock in sixty Texas corporations that all held Regulatory Loan
Licenses issued under the Texas Regulatory Loan Act of 1963. Id. When Beneficial of Midland
filed an application for a Regulatory Loan License, it was denied because the Regulatory Loan
Commissioner determined that the license would cause a violation of a provision of the Act that
prohibited any person, “directly or indirectly, or through subsidiaries or holding companies, to hold
or have an interest in more than sixty (60) licenses, the business thereof, or any interest in such
license.” Id. (citing Texas Regulatory Loan Act of 1963, 58th Leg., R.S., ch. 205, § 10(c), 1963 Tex.
Gen. Laws 556, revised by Act of 1967 Revising the Texas Regulatory Loan Act of 1963, 60th Leg.,
R.S., ch. 274, § 3.06(3), 1967 Tex. Gen. Laws 617).
24
In upholding denial of the application, this Court held that the statutory provision directed
that “the corporate fiction separating the parent, Delaware Corporation, and its subsidiaries, the
sixty-one Texas corporations—the stock of which is wholly owned by the parent
corporation”—should be ignored in that situation. Id. at 484. The Court implicitly recognized that
a statute could authorize regulatory agencies to look beyond the corporate veil. See id. Doing so
prevents corporations from circumventing statutes and frustrating legislative intent by using a
legislatively authorized corporate form to avoid a statute’s reach and allow harms the Legislature set
out to prevent. See id. The same rationale applies here. Cadena argues that Miskell is
distinguishable because the statute at issue in that case included references to subsidiaries and
holding companies. But the language in section 102.07(a) is sufficiently broad to encompass
subsidiary corporate relationships. In our view, by enacting broad language providing that “no
person who owns or has an interest in the business of a . . . brewer” may also have “a direct or
indirect interest in the business of a . . . retailer,” the Legislature intended that the TABC and courts
look beyond corporate separateness status in enforcing the tied house provisions.
Cadena points to various attorney general opinions that it claims support its view. We do not
find these persuasive for several reasons. First, the two most applicable opinions—the only two that
discuss the tied house statutes—question whether the phrase “or the business thereof,” in a
now-repealed tied house statute, requires corporate separateness to be observed. But notably, both
of these were issued before Miskell was decided. Compare TEX . ATT ’Y GEN . OP . No. O-7039
(1946), and TEX . ATT ’Y GEN . OP . No. O-4750 (1942), with Miskell, 424 S.W.2d at 484. Our holding
in Miskell brings the Attorney General’s reasoning into question. Second, courts are not bound by
25
attorney general opinions. In re Smith, 333 S.W.3d 582, 588 (Tex. 2011). Instead, we are bound
by the principle outlined in Miskell: a statute, by its terms, controls an administrative agency’s
authority to ignore corporate separateness. 424 S.W.2d at 484. Even if the statutory language in the
referenced attorney general opinions tracked the exact language in section 102.07(a), our
interpretation of section 102.07(a)—and its reach—would still control. And as discussed above,
section 102.07 is extremely broad and prohibits even attenuated interests so long as those interests
are rooted in the financial performance of the entities in question. This is sufficient statutory
authority to allow the TABC to look past the corporate fiction when enforcing this statute.
Cadena also argues that even if the statute permits the TABC to disregard corporate
separateness, it does not have authority over FEMSA’s interest. Rather, Cadena posits that the
TABC’s authority extends only to Cadena’s interest, which does not violate section 102.07(a).
Because the TABC has authority over the permit applicant, Cadena reasons, its authority does not
extend to FEMSA or its interests. Cadena contends that allowing the TABC’s exercise of authority
to prevail in this case will give it authority over every person anywhere in the world with a remote
financial interest in a permit holder. But this argument confuses both the power of the TABC and
the reach of section 102.07(a).
Section 26.03(a) provides that the rules governing a wine and beer retailer’s off-premise
license are the same as those governing a retail dealer’s off-premise license. TEX . ALCO . BEV . CODE
§ 26.03(a). If the TABC protests a permit application, the county judge holds a hearing. Id. §§
61.31–.32. Various other provisions then give the county judge power to grant or refuse the
application. Id. §§ 61.42–.44. Cadena points to the various statutes’ use of “applicant” to prove that
26
the TABC and county judge’s authority only extends to applicants. This is true. State agencies are
statutory creatures and have no inherent authority other than those powers the Legislature expressly
confers. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007);
Lakeshore Util. Co., 164 S.W.3d at 377. Section 61.43 only grants the TABC and the county judge
authority to refuse an applicant’s permit when granting it would cause the retailer to “conduct
business in a manner contrary to law or in a place or manner conducive to a violation of the law.”
TEX . ALCO . BEV . CODE § 61.43(a)(9). But section 102.07(a), by its very terms, is much broader and
applies to every person who meets the requirements to establish a prohibited interest. The Code
gives the TABC authority to enforce provisions like 102.07(a) against permit applicants. Thus, if
this permit were approved, the TABC would not have authority to force FEMSA to sell one of its
interests in the retailing and manufacturing tiers based on 102.07(a). But the TABC does have
authority, based on the power conferred by the Legislature, to reject Cadena’s permit if granting it
would cause Cadena to operate in a “manner conducive to a violation of the law.” See id. Thus, we
do not read 102.07(a) to provide the TABC with authority over every person who might have a
prohibited interest.
In sum, the Code authorized the TABC to refuse to grant Cadena’s permit application when
granting it would have resulted in a violation of the tied house statutes. As it relates to this case,
section 102.07(a)’s language permits the TABC to disregard the corporate separateness of entities
when determining whether an entity has a cross-tier direct or indirect interest in the business of a
retailer or an interest in the business of a brewer. FEMSA’s indirect 100% ownership of Cadena
provides it with an interest in the business of a retailer. Likewise, FEMSA’s large stock ownership
27
and ability to appoint members to the board of directors in the Heineken Brewers’ holding
companies provides it with an interest in the business of a brewer. Thus, the TABC and county
judge were acting within their authority when they refused to grant Cadena’s application for a permit
upon finding that granting it would result in a violation of section 102.07(a).
C. Equal Protection
Cadena claims its equal protection and due process rights were violated by the TABC’s
arbitrary and discriminatory refusal to grant it a permit. As evidence, Cadena references an expert
report it introduced into evidence which reflects significant and pervasive cross-tier holdings by
publicly traded companies throughout the State of Texas. Cadena argues that its expert report also
proves that the State of Texas holds billions of dollars of cross-tier investments and is itself in
violation of the tied house statutes.
In administrative proceedings, the “rudiments of fair play” must be observed. Austin
Chevrolet, Inc. v. Motor Vehicle Bd. & Motor Vehicle Div. of Tex. Dep’t of Transp., 212 S.W.3d
425, 438 (Tex. 2006) (quoting Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 185 S.W.3d 555,
576 (Tex. App.—Austin 2006, pet. denied)). An administrative “licensing authority acts arbitrarily
and unlawfully if it treats similarly situated applicants differently without an articulated
justification.” Id. To establish an equal protection claim, a deprived party must show (1) it was
treated differently from other similarly situated persons, and (2) no reasonable basis exists for the
disparate treatment. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). Cadena fails to meet the first
element.
28
While Cadena points to evidence that cross-tier holdings are pervasive across the State, it
does not show that any of the entities involved are similarly situated to itself. The primary evidence
of overlapping ownership is the expert report submitted during the hearing before the county judge.
The report is based on a review of the portfolios of four Texas Public Pension Funds and the defined
contribution and benefit plans of publicly traded companies in the alcohol retailing and
manufacturing industries. The experts reported that each Texas Public Pension Fund had cross-tier
ownership interests totaling over $5 billion in the aggregate. According to the report, the State of
Texas is a licensed retailer of alcoholic beverages through several state universities, which ostensibly
causes it to be in violation of the tied house statutes because of the interest it holds in the
manufacturing tier through the Texas Pension Funds. The report also provides evidence of
significant indirect overlapping ownership, most often through mutual funds that own equity in
alcohol-related companies, as well as direct overlapping ownership in multiple tiers by the defined
retirement and benefit plans.
Despite the significant overlapping interests, the expert report does not provide evidence of
any applicants that are similarly situated to Cadena. Each of the entity’s cross-tier interests in
alcoholic-beverage-related companies as outlined by the expert report is demonstrably and
qualitatively different from those of Cadena, FEMSA, the Heineken Group, and its brewers. First,
with respect to the defined employee contribution and benefit plans’ cross-tier ownership, Cadena
does not point to any entities holding cross-tier stakes that come close to FEMSA’s multi-million
share interest in the Heineken Group. Second, mutual fund managers generally have a duty to
diversify the fund’s portfolio. See RESTATEMENT (THIRD ) OF TRS . § 227 cmt. m (AM . LAW INST .
29
1992) (“[A] vast array of pooled investment vehicles are now available to investors . . . includ[ing]
the shares of mutual funds . . . [, which] offer trustees diversified holdings . . . .”). FEMSA, of
course, has not been shown to have such a duty and nothing suggests it would. And the Texas Public
Pension Funds are heavily regulated statutorily created entities. See TEX . GOV ’T CODE §§
811.001–815.515 (Employees Retirement System of Texas); id. §§ 821.001–830.205 (Teacher
Retirement System of Texas); TEX . EDUC. CODE §§ 43.001–.020 (Texas Permanent School Fund);
id. §§ 66.01–.84 (Permanent University Fund). And the Texas Constitution caps the Permanent
University Fund’s security investments in a single corporation at 1% and stock ownership of a single
corporation at 5%. TEX . CONST . art. VII, § 11a. In contrast, FEMSA is a non-governmental
corporation with a far greater interest in both the Heineken Group and its subsidiaries—culminating
in its indirect 100% ownership of Cadena—than the cap that the Texas Constitution places on the
Permanent University Fund’s investments.
The court of appeals determined that denial of Cadena’s application was not an equal
protection violation “because there is no evidence that the TABC has granted a permit or license to
an applicant with a similarly significant cross-tier investment interest.” 449 S.W.3d at 172. We
agree. Although Cadena provides evidence that some entities have cross-tier holdings—both public
entities and state pension funds—it provides no evidence that any of them are in a situation
significantly, or even materially, similar to Cadena’s. See Mayhew, 964 S.W.2d at 939; see also City
of Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 2010, pet. denied). We agree with the
court of appeals’ determination that Cadena failed to establish an equal protection claim based on
the TABC’s treatment of its permit application.
30
D. One Share Theory
Finally, we come to the one share theory addressed by both the parties and the amici. The
dissent and one share theory advocates argue that if the court of appeals’ decision is upheld, the
TABC will have unlimited discretion to reject a permit application based on the applicant’s
ownership of single shares of stock in two of the three tiers. The essence of the argument is that this
would produce an absurd result and give the TABC unbridled discretion to suspend almost any
permit or reject almost any application. The amici seek “clarity” regarding how much, if any,
cross-tier ownership is permissible under the statutes.
We are not unsympathetic toward the industry’s desire for clarity. But as was recently said
in Hall v. McRaven, going beyond the limits of our jurisdiction “is no trifling matter.” 508 S.W.3d
232, 250 (Tex. 2017) (Guzman, J., concurring). And our lack of jurisdiction to issue advisory
opinions such as the amici seek could not be more certain. Id. at n.18; Greene v. Farmers Ins. Exch.,
446 S.W.3d 761, 767 (Tex. 2014); Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012); In re
Gen. Elec. Co., 271 S.W.3d 681, 693 (Tex. 2008); S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304,
307 (Tex. 2007); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004); Sw. Elec. Power Co.
v. Grant, 73 S.W.3d 211, 222–23 (Tex. 2002); McAllen Med. Ctr. v. Cortez, 66 S.W.3d 227, 232
(Tex. 2001); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993); see also
TEX . CONST . art. IV, §§ 1, 22 (empowering the attorney general, as part of the executive department
of government, to issue advisory opinions to the governor and other officials); Valley Baptist Med.
Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (“Under article II, section 1 of the Texas
Constitution, courts have no jurisdiction to issue advisory opinions.”). Addressing the one share
31
issue head on would unquestionably be advisory in this case that is not about an application for a
permit being denied because of one share of stock as the overlapping interest. This case is about
FEMSA’s 100% ownership of Cadena, its ownership of over 100 million shares of stock in the
Heineken Group, and the resulting financial interests.
Cadena’s application is about business. It is hard to conceive of a business enterprise that
would refuse to divest itself of one share of overlapping stock in order to obtain a permit. And it is
equally hard to conceive of the TABC expending the resources necessary to litigate a one-share
cross-tier holding. But if it does happen, then the applicant will have opportunity to contest the
TABC’s decision based on the facts of that case and the statutes then in effect.
E. Response to the Dissent
Our role as a court is limited to determining legislative intent through the words the
Legislature selected. The dissent’s analysis and proposed result would significantly erode the
Legislature’s express mandate of strict separation between the three tiers of the alcoholic beverage
industry, and would undermine the statutory construct designed to “assure the independence of the
members of the three-tier system.” TEX . ALCO . BEV . CODE § 102.75(c).
The dissent agrees that this case turns on the language “person who owns or has an interest
in the business of a brewer,” and that more specifically, it turns on the meaning of “an interest.” In
construing that language, the dissent does what we recently held to be error in ExxonMobil v.
Coleman, ___ S.W.3d ___, ___ (Tex. 2017). That case concerned the construction of a provision
in the Texas Citizens Participation Act (TCPA). Id. at ___. We reversed the court of appeals’
judgment because it read language into the TCPA that narrowed its application. Id. at ___. What
32
we said there applies here. First, we recited the unremarkable, but foundational, principle that “[a]
court may not judicially amend a statute by adding words that are not contained in the language of
the statute. Instead, it must apply the statute as written.” Id. at ___ (alteration in original) (quoting
Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015)). Next, we noted that “the court of
appeals improperly narrowed the scope of the TCPA by ignoring the Act’s plain language and
inserting the requirement that communications involve more than a ‘tangential relationship’ to
matters of public concern.” Id. at ___ (citing Lippincott, 462 S.W.3d at 509 (“We presume the
Legislature included each word in the statute for a purpose and that words not included were
purposefully omitted.”)). We expressly noted that “[e]ach of Coleman’s arguments constitute[d] an
effort to narrow the scope of the TCPA by reading language into the statute that is not there.” Id.
at ___. So it is here with Cadena’s argument and the dissent’s position.
In determining the plain language meaning of “interest,” the dissent looks to legal and
ordinary dictionaries in use at the time section 102.07(a)(1) was enacted. Post at ___. Those
indicate that “interest” had a broad array of meanings. It “could mean anything from a mere concern
or advantage to participation, a right, a share, or title.” Post at ___. But rather than apply the
presumption that the Legislature meant what it said and meant to use “interest” in its ordinary, broad
sense, the dissent would narrow the meaning of the statute by adding words and engrafting into the
statute a participation, control, or influence element that has no basis in the statutory language and
is in direct contradiction of the express legislative directive regarding tied houses. It would
significantly narrow the application of the statute. In essence, the dissent would manufacture a
definition not found in the statute by adding words the Legislature did not enact.
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The dissent further concludes that “‘[i]nterest’ must, then, mean something less than any
interest, as the TABC maintains.” Post at ___. It supports that statement by simply saying that the
specific language at issue is narrower than the breadth of the Code as a whole. See post at ___. But
this matter must be decided within the context of the Code as a whole, which is all about prohibiting
tied houses. See Cont’l Cas. Ins. Co. v . Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex.
2000). After all, if the Legislature did not intend the tied house statutes to limit what alcoholic
beverage industry participants could and could not do, what purpose would the statutes serve? And
for the dissent to say that a major part of the statutory scheme is narrower than the whole, without
pointing to any basis in the statutory language, is disingenuous.
The dissent further says that its interpretation is the only one that renders the statute
enforceable. Post at ___. That is another way of saying that our construction, and that of the court
of appeals, which is the construction urged by the TABC, is absurd or nonsensical. Indeed, the
dissent expressly says just that. Post at ___. We disagree. The dissent attempts to show absurdity
by stating “the logically inescapable extension of interpreting ‘interest’ to mean any financial interest
is the so-called single-share theory.” Post at ___. It goes on to provide examples of the
consequences of our reading of the statute. As discussed above, this Court is precluded by the
Constitution from issuing advisory opinions. Advisory opinions are prohibited because they purport
to bind future parties based on a “hypothetical injury,” rather than “actual or imminent harm.” Tex.
Air Control Bd., 852 S.W.2d at 444. While any court interpreting a statute should consider “the
consequences that result from each possible interpretation,” the dissent relies on consequences it
conjures that transcend the boundaries of realistic situations. We presume “the Legislature is bound
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to know the consequences” of its actions and only ask if “the Legislature intended those
consequences.” Cf. City of Desoto v. White, 288 S.W.3d 389, 395 (Tex. 2009). In this case, the
Legislature provided a broadly inclusive statute but pared its reach by leaving its enforcement to the
TABC. The TABC, an administrative agency, is afforded a great deal of discretion and deference.
See State v. Malone Serv. Co., 829 S.W.2d 763, 767 (Tex. 1992). Indeed, that we are only now
interpreting this statute for the first time—more than eighty years after it was enacted—suggests that
the TABC has to date reasonably and effectively used that discretion and avoided pursuing the
attenuated scenarios that trouble the dissent.
We recognize that under our interpretation, there likely are or will be violations of section
102.07 that will not come to light. But that does not render the statute meaningless or incapable of
being enforced. There is a difference between enforceability and perfect enforceability. Experience
teaches that no regulatory or police agency has the resources to enforce every statute against every
violation. But laws against speeding, jaywalking, even murder, are not invalid because they are not
perfectly enforceable. And it is not for courts to undertake to make laws “better” by reading
language into them, absent the necessity to do so to effect clear legislative intent or avoid an absurd
or nonsensical result that the Legislature could not have intended. Union Carbide Corp. v.
Synatzske, 438 S.W.3d 39, 52 (Tex. 2014). That is not the circumstance here.
IV. Conclusion
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FEMSA’s indirect ownership interest in the Heineken Group and its breweries, together with
its indirect ownership interest in Cadena, triggers the prohibitions outlined in section 102.07 as to
Cadena and its application for a permit.
The judgment of the court of appeals is affirmed.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: April 28, 2017
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