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TRIE ATTQIZNEY GENERAL 

QFTEXA~ 

March 18 , 1970 

Honorable 0. N. Humphreys, Jr. 

Administrator 

Texas Liquor Control Board 

Sam Houston State Office Building 

Captiol Station 

Austin, Texas 78711 

Opinion No.M-598 

Dear Mr. Humphreys: 

Re: Airline-Beverage Permits 

under Article, I, Section 

15 (21) Texas Liquor Control Act. 

The 61st Legislature amended the Texas Liquor Control 

Act by providing for a new "Airline-Beverage Permit." 

[Article 666-15(21), V.P.C., Acts 1969, 61st Leg., 2d C.S., 

ch. 1, Art. 6, sec. 3, p.5, 37-381. you have inquired 

as to the implications of this amendment as follows: 

"Question No. 1. Does an Airline-Beverage Permit authorize the holder to purchase alcoholic beverages outside of Texas, 

transport same into Texas, and store same 

at airports in Texas? 

"Question No. 2. If the answer to 

Question No. 1 is 'yes )' does an AirlineBeverage Permit further authorize the 

holder to supply its passenger aircraft 

departing from Texas airports to be served 

to the passengers aboard the flight, with 

the alcoholic beverages previously purchased outside of Texas and stored at an 

airport in Texas? 

"Question No. 3. Do alcoholic beverages 

purchased outside of Texas become taxable 

under Article I, Section 21, T.L.C.A.; 

Article I, Section 21 l/8, T.L.C.A.; or 

Article II, Section 23, T.L.C.A., upon 

the occurrence of any of the events or transactions described in Questions No. 1 and 

2 above?” 

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Honorable 0. N. Humphreya, Jr., Page 2, (M-588 ) 

Our answer to your questions are 88' follows: Question 

No. 1 "Yea"; Question No. 2, 'Yes": Question No. 3;"Alcoholit beverages purchased, transported, stored and sold in 

accordance with the procedures in question become taxable 

upon the first actual sale or consumption within TBxas." 

The relevant provisions of Article 666-15(21), Vernon's 

Penal Code, as amended, may be paraphrased as follows: 

(1) The Legislature declares that 

nothing in the Texas Liquor Control Act 

prohibits selling or serving of alcoholic 

beverages in any size containers on commercial passenger airplanes even though 

"dry" areas may be traversed during the 

course of flight; provided a special 

$1000 airline beverage permit is obtained annually from the Alcoholic Beverage 

Commission. 

(2) Permittees are exempted from 

Article I, Sections 15(a) 7 and 18 

of the Act which relate respectively 

to the taxing power of county commissioner's courts, and residence-ownership requirements for other permittees. 

(3) Permittees are authorized to store 

alcoholic beverages at airports in any 

size sealed containers subject to rules 

and regulations. 

(4) Taxes imposed on alcoholic beverages 

on board aircraft departing this state are to 

be paid pursuant to rules and regulations. 

(5) Permittees are exempt from the 

Limited Sales, Excise and Use Tax Act, and 

in lieu thereof, a five cents per drink 

service fee is assessed for each serving 

of an alcoholic beverage within this state 

which fee permittees may absorb and remit 

monthly pursuant to rules and regulations. 

(6) Retail package store permittees are 

granted exclusive rights to sell alcoholic 

beverages in any size containers to AirlineBeverage Permit holders. Such containers 

are allowed through the ordinary manufacturer-importer-wholesaler-retailer channels for 

such sales. 

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Honorable 0. N. Humphreys, Jr., Page 3, (W- 598 ) 

Although the amendment does not deal expressly with 

out-of-state purchase, importation and storage of liquor, 

yet we think the Legislature enacted definite provisions 

which have no meaning unless it presumed such activity' 

would occur. We therefore conclude that the Airline 

Beverage Permit impliedly authorizes the procedures outlined in question number one. 

We do not think that subsection (f) of the amendment1 

prohibits out-of-state purchasing, importation an'storage in this state. This subsection simply requires that, 

among the various permittees authorized to sell liquor &I 

Texas, only retailers are allowed to sell to Airline Beverage Permittees.‘ 

The question thus becomes whether the subsection 

impliedly prohibits transportation into the state of such 

liquor. To so conclude, one would have to reason that 

subsection (f) requires that all beverages on airliners 

in Texas be purchased from a Texas retailer. To comply, 

airliners entering this, state would either'have to jettison 

all out-of-state liquor or consider it subject to forfeiture as an illicit beverage. [cf. Art. 666~SS3a(4); 

42(a) ; 17 (13) V.P.C.] Nothing in the amendment indicates 

legislative intent for such requirements. 

On the other hand, there are affirmative indictions 

that the Legislature contemplated that permittees would 

import liquor purchased out-of-state. Subsection (d) of 

the amendment reads as follows: 

"As to all alcoholic beverages on board 

any commercial passenger aircraft departing 

from any airport in this state, the taxes 

'"Only the holder of a Package Store Permit shall 

be authorized to sell liquor to the holder of an AirlineBeverage Permit: and for the purposes of this Act, any 

sale of liquor to the holder of an Airline-Beverage Permit 

shall be considered a sale at retail to a consumer." 

[Art. 666-15(21f), V.P.C.1 

%y requiring all sales in Texas to be made at retail, 

payment of the retail sales tax is also assured. 

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Honorable 0. N. Humphreys, Jr., Page 4, (M-598 ) 

imposed by the Texas Liquor Control Act 

shall be paid as prescribed by rul~es and 

regulations of the Board." (Emphasis added). 

If any beverages on departing aircraft were purchased at 

retail, the taxes would already have been paid atthe time 

of delivery from the wholesaler to the retailer. [cf. Art. 

666-9921, 21 l/EA(l)b quoted infral. Thus, the qu6tCd 

provision would be unnecessaryand meaningless in that 

there would be no occasion for a reporting system, rules 

and regulations for payment of taxes already p&id.' The 

Legislature is not presumed to have passed a meaningless 

statute. cf. 53 Tex.Jur.2d 272, Statutes, Sec. 182. 

Further, we conclude that the Legislature envisioned 

beverages on departing aircraft for which the appropriate 

taxes might not have been paid, viz. out-of-state imported 

liquor. The legislature therefore directed the Commission 

to prescribe rules and regulations for reporting and paying 

taxes on such liquor. 

Another 61st Legislature amendment,3 while not part 

of the Airline Beverage Permit provisions, is pertinent; 

it provides as follows: 

ion number three1 shall 

obtaining exemption from or credit for such 

taxes and shall provide by,rule and regulation for equitable and final.disposition 

of any tax credit brought about by such 

payment of any such unintended or excess." 

There is heavy traffic from Texas terminals to outof-state airports. To conclude that aircraft must be supplied only with liquor purchased at retail in Texas would 

inevitably require an inundating refund claim procedure 

on liquor consumed out-of-state. Moreover, a complex 

adjudicative system for the "equitable and final disposition" of excess taxes would have to be devised. 

3 Acts 1969, 61st Leg., R.S., ch. 38, p. 80, 96-98, 

Sec. 17, codified as Art. 666-21 1/8A, V.P.C. 

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Honorable 0. N. Humphreys, Jr., Page 5, (M- 598 ) 

The Alcoholic Beverage Commission is at present totally 

ungeared for such procedures , and nothing in the'~recent 

amendments indicates legislative intent that the Commission's procedures be'so extensively revised. 

To the contrary, the Legislature declared~that taxes 

on Liquor shipped out-of-state for consumption not be 

collected in the first place, thereby necessithting only 

nominal and incidental refund procedures. The only discernible conclusion again appears to be that the Legislature foresaw the possibility of'beveragas on board departing aircraft for which the tax had been unpaid, and 

specifically declared its policy only to tax such liquor 

as might be consumed within this State. 

The act allows storage at airports pursuant to the. 

rules and regulations of the Commission. We"deem.it 

evident that all liquor lawfully purchased'and transported 

pursuant to the Airline Beverage Permit, whether from 

within or without Texas, may be stored at Texas terminals. 

Our answer to your question number one is "yes." 

You further ask whether beverages so puchased and 

transported may be used to supply aircraft departing 

from Texas. We see nothing in the recent amendments to 

suggest that Airline Beverage Permittees cannot supply 

departing aircraft with liquor which they have lawfully 

purchased and stored pursuant to an airline beverage 

permit. Accordingly, we answer your second question 

affirmatively. 

Assuming liquor has been purchased out-of-state, 

transported to a Texas terminal, stored, and supplied 

to an aircraft departing this state, your third question 

inquires which activity, if any, makes the alcoholic 

beverages taxable under the following provisions of the 

Texas Liquor Control Act: Article I, Section 21,4 

Article I, Section 21 1/8,5 or Article II, Section 23.6 

4Art. 666-21, V.P.C. 

5Art. 666-21 l/8, V.P.C. 

6Art. 667-23, V.P.C. 

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Honorable 0. N. Humphreys, Jr., Page 6, (M- 598 1 

These sections respectively imposed.gallonage and 

barrel excise taxes on the "first sdle"'bfSli~tib~ or 

beer within this state. "Piret-sBli""is'~dBfidCB broadly 

to include possession, distribution;'or lise'of 'alLliquor 

refined, blended, manufactured;'~imported'iiito,'or'~in~ any 

other manner produced; 'acqufred;~possessed, or brought~ 

into this state. However, under the ~general'scheme, the 

tax is not due and payable until the first actual sale 

within this state. Section 2L"l/EA, ,1(b) p-s: 

following~the 'fi 

kie'for the purpose'of"this'sectmha11-- 

mean the first actual sale by the holder" 

of any wholesaler's permit to.the~holder 

of any other permit authorizing the retail 

sale of the beverage to be taxed." 

(Emphasis added). 

The special Airline Beverage Permit does not precisely 

fit within the general scheme since "first sale" is defined as the first actual sale by a wholesaler to a retailer. However, Section 21 l/8 AZ, supra, seems toevince a legislative intent that the reporting system 

be synchronized for those who transport liquor through 

this State for out-of-state consumption. Since that 

section declares the legislative policy to tax only beverages sold or consumed within Texas, any system other 

than a reporting of taxes due on liquor actually sold or 

consumed in Texas would seem unreasonabeiy cumbersome. 

Because we are unable to see any appreciable distinction 

as to the provisions pertaining to the barrel tax on 

beer in Article 2, Section 23, we conclude that the same 

standards would apply. 

Excise taxes on beverages purchased out-of-state and 

transported through this state only for service out-ofstate might further run afoul of the commerce clause of 

the United States Constitution. [United States Constitution, Article SE, ~13.1 This office has rendered an 

opinion discussing the interrelation of the Commerce 

Clause and the 2lst Amendment to the United States Constitution7 as to state regulation of interstate commerce 

7 The 2lst amendment (ratified December 5, 1933) 

repealed the prohibition amendment and left regulation 

of alcoholic beverages to the individual States within 

their boundaries. 

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Honorable 0. N. Humphreys, Jr., Page 7, 04-598 1 

where liquor is concerned. of. Attorney General Opinion 

No. M-227. The most exhaustive judicial discusaiohs'of' 

this matter are Hostetter vs. Idlewild Ban Voyage'Liquor 

~~~~at~~~,~7:,y~;,'324~ '(1964~eM,"~~t"W~~~~ic 

P Y , I&. vs. P 

Beyrage Control Fdr’tik State of.Calffo~hih;"224"'F;Supp. 

4 (1963). Thesecases held that'no state ~can'completely 

prohibit interstate commerce where liquor iscohaerned; - 

although reasonable regulations will-be~constitutianally 

tolerated. Roth courts/however, used language strongly 

indicating that such regulations would be those aimed 

at preventing unlawful diversion or use of alcoholic 

beverages within the state. We doubt seriously that a 

gallonage or barrel tax upon liquor or beer only transported through this state could reasonabely beg calculated 

as measures preventing unlawful diversion into Texas. We 

therefore conclude that the gallonage and barrel taxes 

cannot lawfully be collected on liquor and beer simply 

transported through Texas for consumption out-of-state 

because such taxee would be an unwarranted regulation of 

interstate commerce a field pre-empted from State regulation. 8 

Our answer to question number 3 is that beverages 

purchased, transported, stored and sold, pursuant to the 

procedures discussed in this opinion become taxable upon 

the first actual sale or consumption within Texas. 

SUWWARY 

Article 666-15(21) V.P.C. authorizes holders 

of Airline Beverage Permits to purchase alcoholic 

beverages outside Texas, transport them into 

Texas, store same at Texas airports and supply 

departing aircraft with such beverages. Assuming 

the foregoing activity, the taxable event, for 

purposes of Article I, T.L.C.A. SS 21, 21 l/8 

and Article II, 623, (Art. 666-21, 666-21 l/8 and 

667-23, V.P.C., respectively), is the first 

actual sale of alcoholic beverages within Texas 

airspace. 

8 It is probable, however, that beverages imparted into 

the state and transported through this state for consumption 

and service without this state would have to be transported 

in conjunction with a Carrier's permit as defined in Article I, 

Section 15 tSl2). 

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Honorable 0. N. Rumphreys, Jr., Page 8, (M- 598 ) 

General of Texas 

Prepared by Earl S. Hines 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chaixmm 

W. E. Allen, Acting Co-Chairmaa 

Jay Floyd 

Barold Kennedy 

W.O. Shultz 

B&Owen 

Gordon Cam 

!4EXDE P. GRIFFIN 

Staff Legal Assistant 

ALFRED itRtKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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