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 Natlonal 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 personnel 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 military 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 building a housing development, community center or 

training pe,rsonnel of the Armed Forces, would 

the State then be authorized to grant a refund 

of State beer taxes on beer sold to sa:d military 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 consumption outside this State, or sold aboard ships 

for ship's supplies, or is shipped into any 

Installation of the National Military Establishment as referred to above, for consumption by 

military personnel therein, a claim for refund 

may be made at the time and in the manner prescribed by the Board or Administrator. So much 

of any funds derived hereunder as ma 

7 

be necessary, not to exceed two per cent (2% thereof, 

is hereby appropriated for such purpose. The 

r?oard may promulgate rules and regulations 

generally for the enforcement of this provision." 

Your first question calls for the definition and explanation 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 jurisdiction 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,sL include 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 personnel 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 discuss 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 

il 

urisdiction over military "installations" in two manners: 

1) It may purchase or condemn the area involved with the pe?-.. 

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 within 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 therriin so 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 no t inconsistent wfth tile performance 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 require 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 8 he 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 authorized 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 Government 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 consumption 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 

Opinion O-1774 (lg&Oy. 

within the provisions. Attorney General's 

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,on that 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~~n is 

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;?h installation for purposes ?,f a 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 connest ed with the operation and p:urp:ae of 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,nd will 

qualify as to this reqC.rement for the ta,x .refilrl:? c,r elcem~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:h particular case. Facts to be considered are: (1) what persons 

are served by the area in question, (2) who~operates the facilities located in the area, (3) who has acc:ess to the area, 

(4) the general actfviQ in the area, and (5) the ter-rls of 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 addition to military personnel, they may not9 under the facts, 

constitute a part of 

Establishment", 

"an installation of the National Military 

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 installation 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,tired personnel, 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 jurisdiction has not been ceded by the State. Wk.%52 

police jurfsdirticn over the alaea in 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 lin a d?y area where 

police jurisdi,, meion has not been ceded to t?~e 

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:nder Section 23+(d), Article 667, 

VernonIs Penal Code, depending on the facts Sn 

each case. The beer on which a tax refund or 

exempti,on is sought under the above section m:Lst 

be for the p?rrpose of consumpt:ion by "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.