Honorable Robert S. Calvert Opinion Nz. W-752 

Comptroller of Public Accounts 

Capitol Station Re: Whether the Comptroller 

Austin, Texas can legally issue warrant 

in payment of claim of a 

beer distributing company 

covering refund of excise 

tax on beer sold to military installations In 

Dear Mr- Calvert: Texas. 

By letter dated September 3, 1959, you state: 

‘II ,am enclosing for your consideration 

and approval claim of Pearl Beer Distributing Company, 400 Nueces Street, Austin, 

Texas, for $126.19 covering refund of excise 

tax on beer sold to military installations 

in Texas. 

“This department recommended that appropriatlon be made to pay this clalm.by.the 

Fifty-sixth Legislature ins order not to 

deny the claimant his rights, If In fact 

the claim could legally be paid. It is my 

understanding that your approval and the 

approval of the State Auditor was made to the 

Legislature on the same condition. I am 

therefore submitting the entire file covering 

this claim and ask that you examine same and 

advise me whether or not I can legally issue 

warrant in payment of the claim.” 

The file above referred to reflects that the Pearl Beer 

Distributing Company of Austin, Texas, Is- seeking refund of 

taxes paid on beer sold to Bergstrom Air Force Base.1 If such a 

IThe Pearl Beer Distributing Company holds a beer distributor’s 

license issued pursuant to the Texas Liquor Control Act. 

%-1 et seq., Tex.Pen.Code). 

(Article 

It is the exclusive distributing 

agent of the Pearl Brewing Company of San Antonio, Texas. 

beer here involved was purchased by Pearl Beer Distributing 

The 
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..,-,.,,) 

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Honorable Robert S. Calvert, Page 2 Opinion No. WW-752 

refund Is to be legally made, the claimant must bring 

himself within the terms of Article 667-23f (d), Tex.Pen. 

Code, which reads: 

“It is not intended that the tax levied 

in Section 23 of Article 2 of the Texas 

Liquor Control Act shall be colkcted on 

beer shipped out of this State for Tonsumption outside this State or on beer 

shipped to an installation of the National 

Military Establishment, wherein the State 

of Texas has ceded police jurisdiction, 

for consumption’by military personnel.,wlthin said installation, and the board shail 

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 that tax 

on any beer and thereafter said beer is 

shipped out of the state for consumption 

outside this State 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 may be necessary, not to exceed 

two per cent (2%) thereof, is hereby appropriated for such purpose. The Board may 

promulgate rules and regulations generally 

for the enforcement of this provision.” 

In reference to the foregoing section, Attorney General’s 

Opinion No. W-354 (January 31, 1958) states: 

.According to the terms of the Texas 

Liquor Control Act above quoted, the tax on 

1 (Cont.) 

Company from the latter company; the first taxable sale as 

defined by the Texas Liquor Control Act occurred upon such 

purchase and the tax was paid at that time. Consequently, there 

is no question of a first taxable sale or importation being 

made to or by a military establishment or Federal instrumentality, and Attorney General’s Opinion Na. kpd-598 has no 

application. 
fonorable Robert S. Calvert, Page 3 Opinion No. WI-752 

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'. 

Art. 667, V.P.C. 

Sec. 23+(d), 

This is an exem;tion provision 

and the distributor or manufacturer claiming such 

exemption must bring himself clearly within the 

provisions. 

t 

1940). 

Attorney General's Opinion O-7174 

Even assuming that requisites (1) and 

3) are true, your question concerns Installations where police jurisdiction has not been 

ceded to the Federal Government. Therefore, 

it is our opinion that a refund or exemption, 

as the case may be, cannot be allowed in the 

situation described In your third question because 

requisite (2) has not been met." 

By letter dated October 23, 1959, the Secretary of State 

advises that a search of the records of his office discloses 

that there is no instrument on file by which the Governor of 

Texas has ceded to the United States police jurisdiction over 

the land in Travis County upon which Bergstrom Air Force Base 

Is situated. Consequently, In line with the authority of the 

Attorney General's 0 inion quoted above, and the clear purport 

of Article 667-23+(d P , you are advised that the Pearl Beer 

Distributing Company is not entitled to a refund of the taxes 

Involved. The State is not legally liable for the return of 

such taxes; therefore, a warrant in payment of the claim may 

not be issued. 

SUMMARY 

The Comptroller of Public Accounts cannot 

legally issue a warrant In payment of a claim 

for refund of taxes paid on beer subsequently 

sold to a military installation over which police 

jurisdiction has not been ceded by the State of 
. .I-.. . ; 

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Hon. Robert S. Calvert, Page 4 Opinion No. WW-752 

Texas to the United States Government. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BY 

JNP:cm 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

C. Dean Davis 

Marietta Payne 

W. Ray Scruggs 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore