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 onbeer sold to military installations In Dear Mr- Calvert: Texas. Byletter dated September 3, 1959, you state:

‘II,amenclosing for your consideration and approval claim of Pearl Beer Distributing Company, 400Nueces Street, Austin, Texas, for $126.19 covering refund of excise tax onbeer sold to military installations in Texas.

“This department recommended that appropriatlon be madeto pay this clalm.by.the Fifty-sixth Legislature insorder not to deny the claimant his rights, If In fact the claim could legally be paid. It is my understanding that your approval andthe approval of the State Auditor wasmadeto the Legislature on the samecondition. I am therefore submitting the entire file covering this claim andask that you examine sameand advise mewhether or not I can legally issue warrant in payment of the claim.” The file above referred to reflects that the Pearl Beer Distributing Companyof Austin, Texas, Is- seeking refund of taxes paid onbeer sold to Bergstrom Air Force Base.1 If such aIThePearl Beer Distributing Companyholds abeer 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 Companyof SanAntonio, Texas. beer here involved was purchased by Pearl Beer Distributing The.

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. . ..b Honorable Robert S. Calvert, Page2 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 23of Article 2of 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, andthe board shail provide forms onwhich distributors and manufacturers mayclaim andobtain exemption from the tax on such beer. If any distributor or manufacturer has paid that tax on any beer andthereafter 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 bymilitary personnel therein, a claim for refund maybe.madeat the time and in the mannerprescribed bythe Board or Administrator. Somuchof anyfunds derived hereunder as maybe necessary, not to exceed two per cent (2%) thereof, is hereby appropriated for such purpose. TheBoard may promulgate rules andregulations 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.) Companyfrom 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 noquestion of a first taxable sale or importation being madeto or by amilitary establishment or Federal instrumentality, andAttorney General’s Opinion Na. kpd-598has 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 madewhere 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.

t1940). 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 maybe, cannot be allowed in the situation described In your third question because requisite (2) has not been met." Byletter 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 bywhich the Governor of Texashas ceded to the United States police jurisdiction over the land in Travis County uponwhich Bergstrom Air Force Base Is situated. Consequently, In line with the authority of the Attorney General's 0 inion quoted above, andthe clear purport of Article 667-23+(d P, you are advised that the Pearl Beer Distributing Companyis not entitled to arefund of the taxes Involved. The State is not legally liable for the return of such taxes; therefore, awarrant in payment of the claim may not be issued.

SUMMARY

The Comptroller of Public Accounts cannot legally issue awarrant In payment of a claim for refund of taxes paid on beer subsequently sold to amilitary 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,
WILLWILSON Attorney General of Texas

BY

JNP:cm APPROVED: OPINIONCOMMITTEE: W.V. Geppert, Chairman
C. DeanDavis Marietta Payne W. RayScruggs REVIEWED

FORTHEATTORNEY

GENERAL By: Leonard Passmore