OlSSEY E3iERA OF TEXAS

Hon. Coke R. Stevenson, Jr. OpinionNo. C- 269 Administrator Texas Liquor ControlBoard Re: Whether the rotation of Austin, Texas wine stock and performance of other acts by a wine wholesaler for the benefit of a retailer is prohibited by Section 3(b) of Article Dear Mr. Stevenson: 666-17 V.P.C. This is In answer to your inquiry concerning the abovecaptioned question. In your letteryou said that you have discovered that in certain instanceswhere wine wholesalershave soldwine to retailers, saidwholesalerswould from time to time assist the retailer by rotating the olderwine to the front of the shelves dusting the shelves,bringing liquor from the retailers storeroom to the display shelves,andmarking prices on the retailer's containers;and you said that you have further discovered that "awholesaler of wine would, while rotatingwine stock,attempt tomake his competitorswine unmarketableby wiping the bottle tops of his competitor'swine with a kerosene rag, by unscrewing the bottle tops and placing dog hair In his competitor'swine,

. . *and by engaging in other prohibitedpractices." After giving those facts,you asked the following two questions in regard to the constructionof Section 3(b) of Article 666-17 of Vernon's Penal Code.

"1.Assuming thatwine Is not perishable, is the rotation of wine stock on a retailer's sh.elves, the dusting of a retailer's shelves, the bringing of wine from a retailer's storeroom to place on shelves and themarking of prices on a retailer's wine containersby a wholesaler of wine prohibited by the language of subsection 3(b) and (f) of Section 17 of Article I of the Texas Liquor ControlAct? "2.Assuming thatwine Is perishable, is the rotation of wine stock of a retailer by a wholesaler of winsmt prohibitedby the language of subsection

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3(b) and (f)of Section 17 of Article I of the Texas Liquor Control Act?" Since the perishability ofwine has no bearing upon this' opinion,we will answer the two questions as one. The pertinent part of the statute In question reads as follows:

“(3). It shall be unlawful for any person who owns or has an Interest in the business of a Distiller, Brewer, Rectifier, Wholesaler, Class B.'Wholesaler, Class A Winery, Class B Winery, or Wine Bottler, or any agent, servant, or employee: 11

. . . "(b) To furnish,give, or lend any money, service, or other thing of value, or to guarantee the fulfillment of any financial obligation of any retailer;

"(f) To offer any prize, premium, gift, or other similar inducement to any retailer or consumer, or the agent, servant, or employee of either." The statute Is plain insofar as Itmakes It unlawful for a wholesaler and other named to a retailer. Parties to "furnish"a "service"

As thewords 'furnish"and "service"are not defined, and are words of commonuse, they should "be donstrued in their natural, plain, and ordinary sl niflcation." 8 Winder v. Kin& 1 S.W.2d 587 (Tex.Comm.App.192 ). -- The meaning of theword 'furnish" is sowell known there is no need to discuss it. Whether it was a "service" or something else In this case, Itwas "furnished"by the wholesaler to the retailer. Although themeaning of the word 'service" Is also well known, we will cite some authorities showing that what the wholesaler furnished the retailer in this case was anservice”. In the case of Van Zandt v. Fort Worth Press, Tex
. 359 S.W.2d 893, th S Court of Texas con- Art2266, Vernon's civ:l %~~?fes that authorizes the recovery of attorney's fees for "personal'services",and commented on the word "service"as follows:
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"Webster'sThird New InternationalDictionary gives a !i

eneral definition of 'services' as 'action or use t at furthers some end or purpose: conduct or performance that assists or benefits lsomethlng: 'deedsuseful or Instrumental toward some object.,'

. . . In construing the state'sUnemployment Compensation Act the Supreme Court of Utah had occasion in Creameries of America v. IndustrialCommission, 98 Utah 571, 102 P.2d 300, 304, to differentiate 'services'and 'personalservices’
. The court said: 'Inordinary usage the term "services"has a rather broad and generalmeaning. It:Includes generally any act performed for the benefit of another under some arrangement or agreement whereby such actwas to have been performed. 'Phe general definition of "service"as given in Webster'sNew InternationalDiot'ionary is "performanceof labor for the benefit of another"; "Act or Instance of helping, or benefiting". The term "personalservice" indicates that the "act" done for the benefit of another Is done personally by a particular Individual."' In the case of A. Kron Livery & Undertaking Co., v. Weaver, 280 S.W.54 (Mo.App.192b)the court discussed the word "servlcefl, and said: "theword 'service',as lexically defined, means, among other things: The act of serving; the deed of one who serves; labor performed for another; assistance rendered; obligation conferred; duty done or required;useful office; advantage conferred; thatwhich promotes interest or happiness; benefit; avail; an advantage conferred or brought about,;

be~nefitor good performed, done or caused;use; employment, things required for use." In the statutewe are herewith considering, towlt, Section 3(b) of Article 666-17, the word "service"means something in additionto "money"or "other thing of value". It means an act, a'deed of one who serves, labor, assistance rendered,a benefit performed, or conduct of that nature, which is exactlywhat was furnished by the wholesaler in this case. The performing of the acts done by the wholesaler in connectionwith displaying the wine in this casewere unquestionablypermitted by the retaller because he thought theywere of benefit to him.

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As the w.ordsof the statute **are** clear, there is no necessity to go into the question of the purpose of the Legislature In enacting this statute. SUMMARY The rotation of wine stock on a retailer's shelves, and theperformance of other acts by a wine wholesaler for the benefit of the retailer in displayinghis wine, is prohibited~b the language of Section 3(b) of Article6 647 of Vernon's Penal Code.

,z' Yours very truly

WAGGONER CARR Attorney General of Texas
By:I. Raymond Wllllams, Jr. IRW/fb APPROVED: OPINION CCUMITTEE W. V. Geppert, Chairman Robert 0. Smith Norman Suarez APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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