# Bffice oftfieI?lttornepdikneral &ate of Ciexae December 21994 Honorable Rick Perry COmmissiona Texas Department ofAgriculture P.O. Box 12847 Austin, Texas 7871l-2847 Qpiion No. DM-306 Be: Whether there is a gallonage limit on sales by a winery permit holder under subsection (d), section 16.01 of the Alcoholic Beverage Code (RQ-583)

You ask about subsection (d) of section 16.01 of the Alcoholic Beverage Code, which subsection was added in 1993. Acts 1993, 73d Leg., ch. 934, 527 (eff. Sept. 1, 1993). Section 16.01 pertains to authorized activities of holders of winery permits, Subsection (d)thereof provides:

The holder of a winery permit may sell wine to ultimate consumers for consumption on or off winery premises and dispense t%ee wine for consumption on or offthe winay premises ifthe winery islocated inacity that: (1) is located in three or more counties, at least one of which has apopulation of500,000 ormore; and (2) has within its boundaries all or part of an international airport. Your specific question is whether the holder of a winery permit acting under subsection (d) is“subject to any limitation on the number ofgallons ofwine that may be sold annually for either on-premises or off-premises consumption.” Apart from the authorization in subsection (d), winery permit holders’ permitted activities are rather limited. The only other authority we find for a winery permit holder’s sale of wine directly to uhimate consumers in this state is in subsection (a)(4) of section 16.01, which provision restricts such sales to “unbroken packages for off-premises consumption in an amount not to exceed 25,000 gallons annually.” We note too that subsection (b) ofthe section-lie subsection (d), added in 1993--allows a permit holder to “manufacture and label wine for an adult in an amount not to exceed 50gallons annually for the persona) use ofthe adult,” and further, provides that the “amount ofwine produced under this subsection isincluded inthe annual total amount that maybe sold bythe holder under Subsection (a)(4).” You suggest that the subsection (a)(4) 25,000 gallon annual limit might also be applied under subsection (d), the provision at issue here, for sales for off-premises consumption at least. We find no basis for applying the subsection (a)(4) iimit~to

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subsection (d), especially asthe legislature has made express inthe case of subsection (b), quoted snpru, its intent to tie that provision to the subsection (a)(4) gallonage hmitation. Had the legislature intended to tie subsection (d) to the subsection (a)(4) gallonage limit, we think itwould have done so expressly. Nor do we find any other basis inthe Alcoholic Beverage Code or other law for a gallonage limit on subsection (d) sales for either on- or off-pmmises consumption. Asxmiingly, we conclude that there isnone. SUMMARY There is no gallonage limit on sales, for either on- or offpremises consumption, by a winery permit holda under subsection (d) ofsection 16.01ofthe Alcoholic Beverage Code.

DAN MORALES Attorney General ofTexas JORGE VEGA Fii Assistant Attorney General DREW T. DURHAM Deputy Attorney Genera) for CriminalJustice JAVIBRAGIJILAR Special Assistant Attorney Genera) RENEAHICRS State Solicitor SARAH J. SHIRLEY Chair, Opinion Committee Prepared byWillam M.Walker Assistant Attorney Genera)

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