Untitled Texas Attorney General Opinion ( 1958 )

HE ATJJ~RNEY GENERAL
OPTEXAW
Honorable Coke R. Stevenson, Jr.,
Administrator,
Texas Liquor Control Board,
Austin, Texas Opinion No. WW-354.
Re: Under Article 667-23+(d),
Penal Code of Texas, what
is meant by the term "any
installation of the Natlon-
al Military Establishment"?
Dear Mr. Stevenson: And related questions.
You have requested our opinion on the following
questions involving an interpretation of Section 23*(d) of
Article 667, Vernon's Penal Code. We quote these questions
as follows:
"(1) What Is meant by the term 'any
installation of the National Military
Establishment'?
"(2) Would the term 'military personnel'
as used in this section include retired per-
sonnel of the Armed Forces, the dependents of
active and retired personnel of the Armed Forces,
and Federal Governmental civilian employees?
"(3) May a Manufacturer or Distributor sell
and deliver beer to a military establishment in
a wet area wherein police jurisdiction has not
been ceded by the State of Texas to the Federal
Government? In the event your answer to this
question is in the affirmative, would the Board
then be authorized to grant a refund of State
beer taxes on beer sold and delivered to the
said military establishments?
"(4) May a Manufacturer or Distributor sell
and deliver beer to a military establishment in
a dry area wherein police jurisdiction has not
been ceded by the State to the Federal Government?
Honorable Coke R. Stevenson, Jr. Page 2 (W-354).
In the event your answer to this question is
in the affirmative, would the Board then be
authorized to grant a refund of State beer
taxes on beer sold and delivered to said mili-
tary establishments?
“(5) Where police jurisdiction has been
ceded by the'state to the Federal Government
for a military establishment, and the Federal
Government subsequently leases such land to a
civilian contractor for the purpose-of build-
ing a housing development, community center or
training pe,rsonnelof the Armed Forces, would
the State then be authorized to grant a refund
of State beer taxes on beer sold to sa:d mili-
tary establishments and military personne'i
residing therein?"
Paragraphs (a) through (d) cf Section 23*, Article ~667,
VernonPs Penal Code, reads as follows:
"(a). The tax levied in Section 23 of
Article II of the Texas Liquor Control Act is
levied only on its first sale in Texas or only
on its importation into Texas, whichever shall
first occur.
"(b). On beer imported into this State the
duty of paying the tax shall rest primarily upon
the Importer, and said tax shall become due and
payable on the fifteenth day of the month follow-.
ing that month in which said beer was imported
into this State.
"(c). On beer manufactured in this State
the duty of paying the tax shall rest primarily
upon the Manufacturer, and said tax shall become
due and payable on the fifteenth day of the month
following that month in which the first sale of
said beer was made in this State.
"(d). It is not intended that the tax levied
in Section 23 of Article II of the Texas Liquor
Control Act shall be collected on beer shipped
out of this State for consumption outside this
State, or sold aboard ships for ship8s4tipplies,
or on beer shipped to any installation of the
National Military Establishment, wherein the
State of Texas has ceded police jurisdiction,
. -
Honorable Coke R. Stevenson, Jr., Rage 3 (w-354).
for consumption by military personnel within
said installation, and the Board shall provide
forms on which Distributors and Manufacturers
may claim and obtain exemption from the tax on
such beer. If any Distributor or Manufacturer
has paid the tax on any beer and thereafter said
beer is shipped out of this State, for consump-
tion outside this State, or sold aboard ships
for ship's supplies, or is shipped into any
Installation of the National Military Establish-
ment as referred to above, for consumption by
military personnel therein, a claim for refund
may be made at the time and in the manner pre-
scribed by the Board or Administrator. So much
of any funds derived hereunder as ma be neces-
sary, not to exceed two per cent (2%7 thereof,
is hereby appropriated for such purpose. The
r?oardmay promulgate rules and regulations
generally for the enforcement of this provision."
Your first question calls for the definition and explan-
ation of a term which has not been specifically defined by
the courts. The word "installation" as used in the above
quoted statute in our opinion is used in the sense of an armory,
airfield, fort, camp, base> post, range or reservation used by
the United States Government for purposes of training members
of the United States Armed Forces, maintaining the equipment
or supplying the needs of such members, developing and testing
weapons and equipment, or basing military units in connection
with the defense of the United States. This definition would
apply to all United States Armed Forces, whether Army, Navy,
Marines or Air Force, and the question of whether police juris-
diction over the area in question has been ceded to the Federal
Government is not material. Since the Texas National Guard, as
presently constituted, is but an arm of the State government
under its Adjutant General, this term would r,sLinclude National
Guard establishments. If, however, through action of Federal
authority the Texas National Guard were to be "called up" and
made a part of the National Military Force in conformity with
Federal and State law governing such establishments, then their
establishments could qualify as 'an Installation of the National
Military Establishment" under this section.
Your second question involves a term likewise previously
undefined. It is our opinion that the,term "military personnel"
includes all members of the Armed Forces of the United States
on active duty, as well as personnel retired from active duty
-. .
Honorable Coke R. Stevenson, Jr., Page 4 (WW-354).
therein. It Is also OUP opinion that dependents of such person-
nel and civilian employees of the military Installations, above
defined, constitute "military personneln within the meaning of
the term as used in this statute. Texas National Guardsmen and
reservists in the United States Armed Forces not on active duty
are not "military personnel" within the contemplation of this
term, but reservists may become such when called to active duty
for training purposes.
The answers to your last three questions Involve the
law applicable to cession of police jurisdiction by the State to
the Federal Government in the case of military installations.
In order that our answers may be fully understood, we will dis-
cuss the law of cession of jurisdiction, together with a short
summary of the State's right to tax sales and issue per:fts on
such Installations. Tne Federal Government acquires exc;:.:sive
urisdiction over military "installations" in two manners:
1) It may purchase or condemn the area involved with the pe?-..
il
mission of the State wherein the area is located. Under the
terms of the Federal Constitution the Federal Government then
acquires the right to exclusfve jurisdiction over the area.
(2) The Federal Government may purchase or condemn property with-
in a state for a valid governmental purpose and then acquire
exclusive jurisdfction over the area through an act of cession of
such Jurisdiction by the state, In making such act of cession
the state may make such reservations as it deems proper, usually
for purposes of taxation and service of process, If the Federal
Government falls to acquire jurisdiction in one of the above two
manners, its jurisdiction over the enclave is still exclusive to
the extent that the stake cannot enforce its laws therriinso as
to interfere with the valid governmental purposes for which the
property was acquired. In other words, state laws still apply
in the area insofar as they are not inconsistent wfth tile per-
formance of the purpose for which the property was pilrchased.
91 C.J.S. Unfted States, g 7, p. 14, et seq.
We think it apparent that the provisions of the Texas
Liquor Control Act requiring permits or licenses from~all persons
who deal with alcoholic beverages are regulatory, and that the
permit fees which are imposed are regulatory fees as opposed to
revenue collections. Therefore, in those cases where the State
of Texas has ceded police jurisdiction to the United States,
the Texas Liquor Control Board 1s without power to issue or re-
quire the purchase of permits or licenses, since such permits or
licenses are imposed under the State's police power to control
the alcoholic tkverage business. Collins v. Yosemite Park &
Curry Co., 304 U.S, 518; Attorney General's Opinion O-3216 (l941).
. -
Honorable Coke R. Stevenson, Jr., Page 5 (WW-354).
On the other hand, it Is equally apparent that the gallonage
taxes Imposed upon the first sale of liquor and beer by the
Texas Liquor Control Act are sales taxes and revenue measures.
Sec. 23, Art. 667, Sec. 21, Art. 667, V.P.C. Under the Buck
Amendment, 61 Stat. 641, 4 U.S.C.A. P 104, the State of Texas
may impose sales or use taxes on sales or uses occurring within
any Federal area, regardless of the fact that the State has
ceded exclusive jurisdiction over the area to the Federal
Government. Since the gallonage tax of the Texas Liquor Control
Act is a sales tax imposed upon the first sale, Sec. 21, Art.
666; Sec. 23*(a), Art. 667, V.PrC., the question of cession of
jurisdiction to 8he
loz.
ederal Government Is immaterial. 01 Stat.
641, 4 U.S.C.A.
In summary, the Texas Liquor Control Board may Lssue
and require the purchase of licenses and permits under the
Texas Liquor Control Act only in those Federal areas where
police jurisdiction has not been ceded by the State of Texas to
the Federal Government, but It may Impose and collect the sales
or gallonage tax on alcoholic beverages sold in any Federal
area regardless of the question of cession of jurisdiction.
In answer to your third question, under the terms of
Section 3 of Article 667, Vernon's Penal Code, manufacturers
and distributors are authorized to sell to various licensed
persons, including retailers and ultimate consumers. We have
examined carefully the provisions of the Texas Liquor Control
Act and have failed to find any provision which would prevent
a manufacturer or distributor from selling beer to an author-
ized purchaser on a military establishment. Accordingly, it
is our opinion that a manufacturer or distributor is authorized
to sell beer to a military establishment in a wet area wherein
police jurisdiction has not been ceded to the Federal Govern-
ment by the State of Texas.
Since we have answered the first part of your third
question in the affirmative, the question of a tax refund in
such situation arises. According to the terms of the Texas
Liquor Control Act above quoted, the tax on 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 consump-
tion of military personnel within said installation". Sec.
23&(d), Art. 667, V.P.C. This is an exemption provision and
the distributor or manufacturer claiming such exemption must
bring himself clear1 within the provisions. Attorney General's
Opinion O-1774 (lg&Oy. Even assuming that requisites (1) and
Honorable Coke R. Stevenson, Jr., Page 6 (w-354).
(3) are true, your question concern8 installations where police
jurisdiction has not been ceded to the Federal Government.
Therefore, it is our opinion that a refund or exempti.on,as the
case may be, cannot be allowed in the situation described in
your third question because requisite (2) has not been met.
In answer to your fourth question, Section ~4(a) of
Article 666, Vernon's Penal Code, prohibits the sale of any
type of alcoholic beverage (including beer) in a dry area.
This section applies alike to all persons, license9 or no'!..
Therefore, it is our opini,onthat a manufacturer or distributor
may not sell beer to a military establishment in a dry irea,
where police jurisdiction has not been ceded to the Federal
Government by the State of Texas. Because of cur answer to
the first question, the second part of the four?: q,?;~..;:.cn
asked is rendered moot.
In answer to your fifth question, we refer again $7;
the provisions of the exemption provision of Section 2%,
Article 667, Vernon"s Penal Code. The gist of your ql:esti``nis
whether areas of Federally owned property, part of or adjoining
a military installation, but leased to or operated by civilians,
constitute a part of s1;?hinstallation for purposes ?,fa tax
refund under Section 23&(d), supra. The Section meni;ioned
contemplates the whole of the military insta.llat:ion
in``~olved;
that is to say, the installation proper, togewer W'_';LI
ifs
necessary adjuncts. Therefore, if the area in question is
necessarily connested with the operation and p:urp:aeof the
military installation, and if the consignee of the beer involved
is located in this area, then the beer will be shipped to 'an
installation of the National Military Establishment" a,ndwill
qualify as to this reqC.rement for the ta,x.refilrl:?
c,relcem~tion.
The question of whether the area to which the beer
is to be shipped is necessarily connected with the installation
presents an issue to be determined from the facts in eac:hpar-
ticular case. Facts to be considered are: (1) what persons
are served by the area in question, (2) who~operates the facil-
ities located in the area, (3) who has acc:essto the area,
(4) the general actfviQ in the area, and (5) the ter-rlsof any
contract or agreement between the Federal Government and the
civilian contractor involved.
You have specifically mentioned the cases of housing
developments under the Wherry Housing Act, community centers,
and bases leased to civilian contractors to train n:ilitary
personnel, principally in flying training. If the housing
facility or community center involved is on the military
.,. c
Honorable Coke R. Stevenson, Jr., Page 7 (WW-354).
installation proper, i.e. "within the fence", and is only for
the benefit of the military personnel attached to that base,
they would still be a part of the military installation, even
though leased from the government and operated by private
Individuals. On the other hand, if such facilities are open
to the general public and serve the public generally in addi-
tion to military personnel, they may not9 under the facts,
constitute a part of "an installation of the National Military
Establishment", even though situated on land owned by the
Federal Government over which police jurisdiction has been
ceded by the State of Texas.
The second requirement for an exemption or refund of
beer tax is met by your statement that police jurisdicMon over
the area in question has been ceded to the Federal Government
by the State of Texas.
The third requirement for a tax exemption under the
above Section 23*(d) is that the beer Involved be sold "for
consumption by military personnel within said installation".
We construe this provision to mean that the beer must be for
the purpose of sale to military personnel only, as that term
Is defined previously, and must be for consumption within the
boundaries of the InstalLatlon proper. We would also point out
that possession of untaxed beer outside the military installa-
tion by either servicemen or civilians is unlawful.
General's Opinion o-5576(1943). Therefore, when the ~%?``e
such that the beer on which a tax exemption is asked, ?r a refund
requested, is not for the purpose of sale to military personnel,
or is to be consumed outside the installation, the exemption or
refund may not be allowed.
SUMMARY
An "installation of the National Military
Establishment" within the meaning of Art. 667,
2&(d), V.P.C. is any armory, airfield, fort,
camp, base, post, range or reservation used
by the United States Government in training,
maintaining, supplying or basing the Armed
Forces of the United States. This tern does
not fnclude State Military Organizations.
-- c1
Honorable Coke R. Stevenson, Jr, Page 8 (WW-354).
"Military personnel" means members of the
Armed Forces of the United States, including
active and re,tiredpersonnel, their dependents,
and civilian employees of militarv installations.
National Guardsmen and Reservists not on active
duty, as discussed, are not "military personnel!'.
Manufacturers and distributors under the Texas
Liquor Control Act may sell beer to milita~
establishments in wet areas where police juris-
diction has not been ceded by the State. Wk.%52
police jurfsdirticn over the alaeain questinn
has not been ceded, no refund of beer tax rn?j~::
be allowed under Sec. 23*(d), Art. 667, V.P.C.
Manufacturers and distributors under the Tuxsl:‘
Liquor Control Act may not legally sell ~bee:
to a Military Establishment lina d?y area where
meion has not been ceded to t?~e
police jurisdi,,
Federal Government, Sec. 4 (a), Art. 666, ‘I.P,C.
Areas of Federally owned property leased to or
operated by civilians may or may not ~:onstltut;e
a part of the mfMtary installation fcr purpose.?
of a fax refund 1:nderSection 23+(d), Article 667,
VernonIs Penal Code, depending on the facts Sn
each case. The beer on which a tax refund or
exempti,onis sought under the above section m:Lst
be for the p?rrposeof consumpt:ionby "m?.Xt;x?y
personnel" withgn the boundaries of the military
installation.
Very truly ymrs,
WILL WILSON
JHM:pf
APPROVED:
OPPINION COMMITTEE
Geo. P. Blackburn, Chairman
Jack Goodman
J. Mark McLaughlin
Ralph R. Rash
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert.