Untitled Texas Attorney General Opinion

PRICE DANIEL
Auen``~.'iIkxas
ATT..Rh-RY
``iS~z*..x.
August 8, 1952
Hon. Coke R. Stevenson, Jr.
Administrator
Texas Liquor Control Board
Austin, Texas Opinion po. v-1500
Re: Application of Saction 37
of Article 666-17; Ver-
non's Penal Code, to the
sale of confiscated alco-
holic beverages by the
Dear Mr. Stevenson: Texas Liquor Control Board.
Your request for the opinion of this office reads
in part as follows:
"We desire your valued opinion on each of
the following questions relating to the action
of this Department in advertising for, accept-
ing or rejecting sealed bids for the purchase
of confiscated alcoholic beverages from this
Department.
"(1) Whether or not this Department has
the authority to reject a high bid received
from a Package Store Permittee whose name IS
carried on the Board's Delinquent Account List
at the time the bids are opened.
"(2) Whether or not the Board has the au-
thority in advertising for the sale of confis-
cated alcoholic beverages, to also publish
notice that bids will not be accepted from any
permlttee whose name appears on the Board's
Delinquent Account List at the time the sealed
bids are opened."
Article 666-30, Vernon's Penal Code, provides,
In part, a8 follows:
"(a) All alcoholic beverages and the con-
tainers thereof, and any device in which the
alcoholic beverage Is packaged, equipment, and
other property forfeited to the State, unless
Hon. Coke R. Stevenson, Jr., page 2, (V-1500)
otherwise herein provided, and all illicit
beverages and the containers thereof, and
any device in which the alcoholic beverage
Is packaged Is forfeited to the State, shall
be turned over to the Board for public or
private sale In such place and manner as It
may deem best: provided, that the Board
shall exercise diligent effort to obtain the
best available price for anything thus sold:
provided, further, that any bill of sale
executed by the Board or Administrator shall
convev a nood and valid title to the nur-
chaser as-to any such property sold. *The
Board shall sell alcoholic beverages only to
the holders of qualified permits or licenses."
(Emphasis added.)
Sectlon 37 of Article 666-17, Vernon's Penal
Code,provides:
"It shall be unlawful for any Whole-
saler, Class B Wholesaler, Class A Winery
or Wine Bottler to sell any alcoholic bev-
erage, nor shall any Package Store Per-
mittee, Wine Only Package Store Permittee,
or other retailer purchase any alcoholic
beverage, except for cash or on terms re-
quiring payment by the purchaser as follows:
On purchases made from the first to fif-
teenth day inclusive of each calendar month,
payment must be made on or before the twenty-
fifth day of the same calendar month: and,
on purchases made from the sixteenth to the
last day inclusive of each calendar month,
payment must be made on or before the tenth
day of the succeeding calendar month. Every
delivery of alcoholic beverage must be ac-
companied by an invoice of sale giving the
date of purchase of such alcoholic beverage.
In the event any Package Store Permittee,
Wine Only Package Store Permittee, or other
retail dealer becomes delinquent in the pay-
ment of any account due for alcoholic bev-
erages purchased, (that is, if he fails to
make full payment on or before the date here-
inbefore provided) then it shall be the duty
of the Wholesaler, Class B Wholesaler, Class
A Winery or Wine Bottler to report the fact
immediately to the Board or Administrator Ln
Eon. Coke R. Stevenson, Jr., page 3, (V-1500)
writing. Any Packsge Store Permittee, Wine
Only Package Store permittee, or other re-
tail dealer who becomes delinquent shall not
be permitted to purchase alcoholic beverages
from any Wholesaler, Class B Wholesaler,
Class A Winery or Wine Bottler until said de-
linquent account is paid in full, and the
delinquent account shall be cleared from the
records of the Board before any Wholesaler,
Class B Wholesaler, Class A Winery or Wine
Bottler will be permitted to sell alcoholic
beverages to him. Any Wholesaler, Class B
Wholesaler, Class A Winery or Wine Bottler
who accepts postdated checks, notes or memo-
randa or who participates in any scheme,
trick or deViC8 to assist any Package Store
Permittee, Wine Only Package Store Permittee
or other retail dealer In the violation of
this Section shall likewise be guilty of a
violation of this Section. The Board shall
have the power and it shall be its duty to
adopt rules and regulations Riving full
Porte and effect to this section.,”(Emphasis
added. )
In Texas Liquor Control Board v. Floyd, 117 S.W.
2d 53C (Tex. civ. App. 1938)) the court said:
“The Texas Liquor Control Board Is by
virtue of the law an administrative branch
of the State government, to wNch has been
delegated, by law, certain functions, among
which are determining in the first place to
whom and when shall certain privileges be
extended to persons to sell liquors, and
second, whether or not such persons so fa-
vored have breached the conditions under
which the privilege has been granted.
” . . . It has been held that the Act
under consideration must be liberally con-
strued by the courts so as to make it ef-
fective) according to the expressed and im-
plied intention of the Legislature.”
The purpose of Section 37 of Article 666-17 Is
discussed In Attorney General Opinion V-1126 (1950). As
pointed out in that opinion, the provision is one for the
purpose of maintaining the independence of the wholesale
and retail levels of the liquor Industry in Texas.
Hon. Coke R. Stevenson, Jr., page 4, (V-1500)
In order to make the provisions against affilia-
tion between retailer and wholesaler effective, the Legis-
lature has prohibited the extension of credit by the lat-
ter to the former beyond the time stipulated. To make the
prohibition against excessive extension of credit effec-
tive, the Legislature has provided, in effect, that upon
violation of the provisions, the retailer Is prohibited
from purchasing liquor from the wholesalers and the latter
are also prohibited from selling to him. The sanction
against the retailer Is, in practical effect, a suspension
of the privilege of purchasing liquor for resale until the
account Is paid and the payment reported in the due course
of the operation of the reporting machinery set up by the
Board under the act.
Under Article 666-30, in making provision for
disposition,of confiscated liquor the Board Is authorized
to sell such liquor, but only to "qualified" licensees
and permittees. The question here Is whether a retailer
in such delinquency status i8 a "qualified" licensee or
permittee at the time of the sale.
It is our opinion that only a permittee or li-
censee who is "qualified" to purchase liquor for resale
is "qualified" to purchase confiscated liquor from the
Board. There is no specific statutory definition of
"quallfledn permittees or licensees,.and itisnecessazyto
look to the purpose and scheme of the statute in this
respect to determine who the Legislature Intended should
be qualified to purchase confiscated liquor. It is not
reasonable to assume'that one who is disqualified from
purchasing liquor at wholesale generally is to be con-
sidered qualified to purchase confiscated liquor, and
certainly not one whose general~dlsqualiflcatlon arises
from a violation of the statute.
As a matter of fact, Only a r8latiV8ly few
classes of permittees are expressly authorized to pur-
chase liquor for resale to either dealers or consumers,
and fewer still are authorized to purchase the finished
and packaged product. See Article 666-15, Vernon's
Penal Code. Therefore, a "qualified" licensee or per-
mittee must not only hold a license which authorizes
generally the purchase of the type of liquor put up for
sale by the Board, but in our opinion, his privilege of
purchasing liquors under such license or permit must be
currently In effect.
Hon. Coke R. Stevenson, Jr., page 5, (V-1500)
It is our opinion that the Board, in advertls-
lng for the sale of confiscated alcoholic beverages, may
state the conditions on which bids will be accepted.
Since the Board must reject bids received from delinquent
permittees, It may publish a notice that such bids will
not be accepted.
SUMMARY
The Liquor Control Board is not author-
ized to sell confiscated alcoholic beverages
to retailers who are delinquent in their whole-
sale purchase accounts, Under the provisions
of Section 37 of Article 666-17, Vernon’s Penal
Code. The Board must reject bids by such re-
tailers and may state such disqualification in
advertising for bids on such liquor.
Yours very truly,
PRICE DANIEL
APPROVED: Attorney General
Red McDaniel
State Affairs Mvision
Mary E. Wall
Reviewing Assistant
Charles S. Mathews
First Assistant
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