### HE ATJJ~RNEY GENERAL

OPTEXAW

Honorable Coke R. Stevenson, Jr., Administrator, Texas Liquor Control Board, Austin, Texas OpinionNo.

### 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 interpretationof 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 NationalMilitary Establishment'?
"(2) Would the term 'militarypersonnel'
as used in this section include retired personnel of the Armed Forces, the dependents of active and retiredpersonnel of the Armed Forces, and Federal Governmental civilian employees?


### "(3) May a Manufacturer or Distributor sell and deliver beer to a military establishmentin
a wet area wherein police jurisdictionhas 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 saidmilitary establishments?
"(4) May a Manufacturer or Distributor sell and deliver beer to a military establishmentin
a dry area wherein police jurisdictionhas not been cededby the State to the Federal Government?Honorable Coke R. Stevenson, Jr. Page 2 

### (W-354).

In the eventyour answer to this question is in the affirmative,would the Board thenbe authorized to grant a refund of State beer taxes on beer sold and delivered to saidmilitary establishments?


### “(5) Where police jurisdictionhas 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-ofbuilding a housing development, community center or trainingpe,rsonnel of the ArmedForces, would the State thenbe authorized to grant a refund of Statebeer taxes on beer sold to sa:dmilitary establishmentsand 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 shallbecome due and payable on the fifteenth day of the month follow-. ing thatmonth in which saidbeer 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 shallbecome due and payable on the fifteenth day of the month following thatmonth in which the first sale of saidbeer was made in this State.
"(d). It is not intended that the tax levied in Section 23 of Article II of the Texas Liquor ControlAct shallbe 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 cededpolice jurisdiction,. -

Honorable Coke R. Stevenson, Jr., Rage 3 (w-354).

for consumptionby militarypersonnelwithin said installation, and the Board shallprovide forms on which Distributors and Manufacturers may claim and obtain exemption from the tax on suchbeer. 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 consumptionby military personnel therein, a claim for refund may be made at the time and in themanner prescribedby the Board or Administrator. So much of any funds derivedhereunder as ma7 be necessary, not to exceed two per cent (2% thereof, is hereby appropriatedfor such purpose. The r?oard may promulgate rules and regulations generally for the enforcementof this provision."

Your first question calls for the definition and explanation of a termwhich has not been specificallydefined 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 reservationused by the United States Government for purposes of trainingmembers of the United States Armed Forces, maintaining the equipment
or supplying the needs of suchmembers, developing and testing weapons and equipment, or basing military units in connection with the defense of the United States. This definitionwould 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 questionhas 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 termwould r,sLinclude National Guard establishments. If, however, through action of Federal authority the Texas National Guardwere to be "calledup" and made a part of the National Military Force in conformitywith Federal and State law governing such establishments,then their establishmentscould qualify as 'an Installation of the National Military Establishment"under this section.

Your second question involves a term likewisepreviously undefined. It is our opinion that the,term "militarypersonnel" 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 suchpersonnel and civilian employees of the military Installations,above defined, constitute "militarypersonnelnwithin 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 "militarypersonnel"within the contemplationof this term,but reservistsmay become suchwhen called to active duty for trainingpurposes.

The answers to your last three questions Involve the law applicable to cession of police jurisdictionby the State to the Federal Government in the case of military installations. In order that our answersmay be fullyunderstood,we will discuss the law of cession of jurisdiction, togetherwith 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 involvedwith the pe?-.. mission of the Statewherein the area is located. Under the terms of the Federal Constitution theFederal Government then acquires the right to exclusfve jurisdictionover the area. (2) The Federal Governmentmay purchase or condemnpropertywithin a state for a valid governmentalpurpose and then acquire exclusive jurisdfctionover the area through an act of cession of such Jurisdictionby the state, In making such act of cession the statemay make such reservations as it deems proper, usually for purposes of taxation and service of process, If the Federal Government falls to acquire jurisdictionin one of the above two manners, its jurisdictionover the enclave is still exclusive to the extent that the stake cannot enforce its laws therriin so as to interferewith the valid governmentalpurposes for which the property was acquired. In otherwords, state laws still apply in the area insofar as they are not inconsistent wfth tile performance of the purpose for which the propertywas 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 requiringpermits or licenses from~ all persons who deal with alcoholicbeverages are regulatory, and that the permit fees which are imposed are regulatory fees as opposed to revenue collections. Therefore, in those caseswhere the State of Texashas ceded police jurisdictionto the United States, the Texas Liquor Control Board 1s without power to issue or require the purchase of permits or licenses, since suchpermits or licenses are imposed under the State'spolice power to control the alcoholic tkverage business. Collins v. Yosemite Park & Curry Co., 304 U.S, 

### 518;AttorneyGeneral'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 Imposedupon the first sale of liquor and beer by the Texas Liquor Control Act are sales taxes and revenuemeasures. 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 occurringwithin any Federal area, regardless of the fact that the State has ceded exclusive jurisdictionover the area to the Federal Government. Since the gallonage tax of the Texas Liquor Control Act is a sales tax imposedupon the first sale, Sec. 21, Art. 

### 666;Sec. 23*(a), Art. 

### 667,V.PrC., the question of cession of

he ederal Government Is immaterial. jurisdiction to 8 loz. 01 Stat. 

### 641,4 U.S.C.A.

In summary, the Texas Liquor ControlBoard may Lssue and require the purchase of licenses and permits under the Texas Liquor Control Act only in thoseFederal areaswhere police jurisdictionhas not been ceded by the State of Texas to the Federal Government,but It may Impose and collect the sales
or gallonage tax on alcoholicbeverages 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 distributorsare 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 provisionwhich would prevent
a manufacturer or distributor from sellingbeer to an authorized purchaser on a military establishment. Accordingly,it is our opinion that a manufacturer or distributor is authorized to sellbeer to a military establishmentin a wet areawherein police jurisdictionhas not been ceded to theFederal 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 ControlAct 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 personnelwithin said installation". Sec. 23&(d), Art. 

### 667,V.P.C. This is an exemptionprovision and the distributor or manufacturer claiming such exemptionmust bring himself clear1 Opinion O-1774 (lg&Oy. within the provisions. Attorney General's Even assuming that requisites (1) andHonorable Coke R. Stevenson,

### Jr.,Page6 (w-354).

(3)are true,your question concern8 installationswhere police jurisdictionhas not been ceded to theFederal Government. Therefore, it is our opinion that a refund or exempti.on, as the
casemay be, cannot be allowed in the situationdescribed in your third questionbecause 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 alcoholicbeverage (includingbeer) 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 sellbeer to a military establishmentin a dry irea, where police jurisdictionhas not been ceded to the Federal Governmentby the State of Texas. Because of cur answer to the first question, the secondpart of the four?: q,?; ~..;:.cn asked is renderedmoot.

In answer to your fifth question,we refer again $7; the provisions of the exemptionprovision 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 operatedby civilians, constitute a part of s1;?h installation for purposes ?,f a tax refund under Section 23&(d), supra. The Sectionmeni;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 thebeer 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,relcem~tion

. The question of whether the area towhich thebeer is tobe shipped is necessarily connectedwith the installation presents an issue to be determined from the facts in eac:hparticular case. Facts to be considered are: (1)what persons are servedby 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 agreementbetween the Federal Government and the civilian contractor involved.

You have specificallymentioned the cases of housing developmentsunder theWherry 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).

installationproper, i.e. "within the fence", and is only for the benefit of the militarypersonnel attached to thatbase, theywould stillbe a part of the military installation, even though leased from the government and operatedby 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, theymay not9 under the facts, constitute a part of Establishment", "an installation of the National Military

even though situatedon land owned by the Federal Government overwhich police jurisdictionhas been ceded by the State of Texas.

The second requirement for an exemption or refund of beer tax is met by your statement thatpolice jurisdicMon over the area in questionhas been ceded to the Federal Government by the State of Texas.

The third requirement for a tax exemptionunder the above Section 23*(d) is that thebeer Involvedbe sold "for consumptionby military personnelwithin 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 consumptionwithin the boundaries of the InstalLatlonproper. We would also point out that possession of untaxed beer outside the military installation by either servicemenor civilians is unlawful. General's Opinion o-5576(1943). Therefore,when the ~%?~~e such that thebeer 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 "installationof 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 reservationused 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).

"Militarypersonnel"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 Reservistsnot on active duty, as discussed, are not "militarypersonnel!'.

Manufacturersand distributorsunder the Texas Liquor Control Act may sellbeer to milita~ establishmentsin wet areas where police jurisdiction has not been cededby the State. Wk.%52 police jurfsdirticnover the alaea in questinn has not been ceded, no refund of beer tax rn?j~:: be allowedunder Sec. 23*(d),Art. 667, V.P.C.

Manufacturersand distributorsunder the Tuxsl:‘ Liquor ControlAct may not legally sell ~bee: to a Military Establishment lin a d?y areawhere police jurisdi,,

meionhas not been ceded to t?~e Federal Government, Sec. 4 (a),Art. 666, ‘I.P,C.

Areas of Federally owned property leased to or operatedby civiliansmay 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,on

is soughtunder the above sectionm:Lst be for thep?rrpose of consumpt:ion

by "m?.Xt;x?y personnel"withgn the boundaries of themilitary installation.

Very trulyymrs,

WILL WILSON

JHM:pf APPROVED: OPPINION COMMITTEE Geo. P. Blackburn, Chairman Jack Goodman J. Mark McLaughlin Ralph R. Rash REVIEWED FOR THE ATTORNEYGENERAL By: W. V. Geppert.