EA~ORNEY GENERAL

OFTEXAS

Hon. Coke R. Stevenson, Jr. OpinionNo. WbJ-615 Administrator Texas Liquor Control Board Re: Whether the Texas Lfauor P.O. Box-56 Austin 61, Texas

Dear Mr. Stevenson: Control Board has the authority to cancel or suspend,after due hearing, the label approval provided for in Section 28 ofArticle 667 of the Penal Code of Texas, upon finding that an out-ofstatebeer manufacturer has violated any provisions of the Texas Liquor ControlAct whether such applies to the label or not?

You have asked our opinion on the following question: Whether the Texas Liquor Control Board has the authority to cancel OP suspend,after due hearing, the label approvalprovided for in Section 28 of Article 667 of the Penal Code of Texas, upon finding that an out-of-statebeermanufacturer has vlolated any provisions of the Texas Liquor ControlAct (Articles 666 and 667 et seq.,Vernon's Penal Code) whether suchviolation applies to the label or not?

You have advised that the procedure followed in the granting of a label approval is as follows: The applicant files an applicationwith the Board on the form CAP-111 and if the Board determines that the label shouldbe approved It then grants to the applicant a "Certificateof Approval of Labels of Malt Beverages DomesticallyBottled or Packed." This certificate is given overyour signatureon form CAP-117.

Examination of the Texas Liquor ControlAct reveals that the Legislature has not provided for a manufacturer's license for an out-of-statebeer manufacturer.Hon. Coke R. Stevenson, Jr., page 2 (w-615)

The approval or disapproval of a label is governedby the provisions of Sec. 28, Art. 667,V.P.C., which reads as follows:

"It shallbe unlawful for any person to ship
or cause to be shipped into this State, or to import into this State, or to manufacture and then offer for salewithin this State, or to distribute, sell, or storewithin the State any beer, ale or .malt liquor unless and until a sample of suchbeer, ale, ormalt liquor, or a sample of the same type and quality of beer, ale, andmalt liquor,has been submittedto the Texas Liquor Control Board for the purpose of analysis, and has been found by the Texas Liq.uor Control Board or its representativesto be in compliancewith all rules and regulations of the Board relating to quality, purity, and standards ofmeasure,

"It shall also be unlawful for any person to import any beer, ale, ormalt liquor Into this State, or tomanufacture and then offer for sale within this State, or to distribute, sell, or storewithin this State any beer, ale, ormalt liquors unless and until the label thereofhas been submittedto the Texas Liquor Control Board
or its authorized representativesand such label has been approvedby the Texas Liquor Control Board or its authorized representativesas being in compliancewith all rules or regulations of the Texas Liquor Control Board or any provisions of the Actrelating to the labeling of beer, ale,
or malt liquor. A,ny beer, ale, ormalt liquor
so imported into this State, ormanufactured and then offered for salewithin this State, in violation of this Section shallbe an illicitbeverage. Provided,however, that all labelsbearing the same wording or design as labels attached to any beermanufactured In or imported into this State during the period between January 1, 1949, and June 1, 1949, are hereby approved, and no further approval shallbe needed by the Manufacturers
or Distributors of suchbrands of beer unless said Manufacturers or Distributorsdesire to change the wording or design of such labels."

Sec. 28, supra,does not provide for the cancellation
or suspension of a label approval.Hon. Coke R. Stevenson, Jr., page 3 (~~-615)

Other provisions of theAct reveal that the Texas Liquor Control Board is given broad ,general powers.
The entireAct constitutesan exercise of the police power'of the State for the protection and the welfare, health, peace, temperance and safety of the people of the State, and all its provisions should be liberally construedfor the accompllshment of that purpose. Art. 666-2, V.P.C.

The Act In Article 666-6, V.P.C., sets forth the general authority of the Texas Liquor Control Board as follows:

"Amongothers, the functions,powers, and duties of the Board shall include the following:
"(a)To supervise, inspect,and regulate every phase of the business ofmanufacturing, Importation,exportation,transportation, storage, sale,distribution,possession for the purpose of sale, and possession of all alcoholic beverages, Including the advertisingand labeling thereof, In all respects necessary to accomplish the purposes of thisAct. The Board Is hereby vestedwith power and authority to prescribe all necessary rules and regulations to that end; to require the filing of such reports and other data by all persons engaged In any phase of the alcoholicbeverage business, which itmay deem necessary to accomplish the purposes of this Act; to superviseand regulate all licensees and permittees and their places of business In all matters affecting the general public, whether herein specificallymentioned or not, and to authorize its agents, servants,and employees under its direction to carry out the provisions hereof.
"(b) To grant, refuse, suspend,or cancel permits or licenses for the purchase, transportation, Importation, sale, ormanufacture of alcoholic beverages or other permits In regard thereto.
"(c)

. . . "(d)To exercise all otherpowers, duties, and functions conferredby thisAct, and all powers incidental, convenient, or necessary to enable It to administer or carry out any of the provisions of this Act and to publish all necessary rules and regulations."Hon. Coke R. Stevenson, Jr., page 4 (WW-615)

Although the Texas Liquor ControlBoard Is given broad general authority, the powers delegatedmust be determined by the legislative intent evidencedwithin the framework of the entireAct. As stated in 1 Tex. Jur. Supp. 98:

"Generallythe powers of an administrative agency are derived entirely from legislative enactment. It has suchpowers only as are expressly conferredupon it by statute together with those necessarily implied from powers and duties expresslygiven or imposed. And while
a statute conferringauthority upon an agency will be liberally construed, the agencymust not go beyond the clear intent of the Leglslature. Itmay not enlarge Its powers by its
own orders."
While examination of the Liquor ControlAct reveals numerous specificprovisions settingup a broad pattern for control through licenses and vermits. the nrovisions relating to label appr&al are limited-in scope and-are directed toward setting label requirements.

The Texas Liquor ControlAct reflectsno "clear intent of the Legislature" that label approval is subject to cancellation or suspensionfor non-relatedviolationsby outof-statebeermanufacturers.

Since cancellationor suspension of the label approval provided for in Sec. 28 of Art. 667 of the Penal Code of Exas for a violation of the Texas Liquor ControlAct not related to the label by an out-of-state-beermanufacturerwould enlarge the powers of the Texas Liquor ControlBoard beyond the legislative intent evidenced in saidAct, such action Is without authority.

SUMMARY

The Texas Liquor ControlBoard does not have the authority to cancel or suspend the label approval provided for in Sec. 28 of Art. 66'7of the Penal Code of Texas upon afinding. -

Hon. Coke R. Stevenson, Jr., Page 5 (m-615)

that an out-of-statebeermanufacturer has violated any provisions of the Texas Liquor ControlAct which does not apply to the label.

Yours very truly,

WILL WILSON Attorney General of Texas

Assistant
JAO:pc

APPROVED:

OPINION COMMITTEE: Geo. P. Blackburn, Chairman

Leonard Passmore Henry Braswell Dean Davis Tom McFarling

%VIEWED FOR THE ATTORNEY GENERAL : W. V. Geppert