OlSSEY E3iERA 

OF TEXAS 

Hon. Coke R. Stevenson, Jr. Opinion No. C- 269 

Administrator 

Texas Liquor Control Board 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 letter you said that you have discovered that in 

certain instances where wine wholesalers have sold wine to 

retailers, said wholesalers would from time to time assist the 

retailer by rotating the older wine to the front of the shelves 

dusting the shelves, bringing liquor from the retailers storeroom to the display shelves, and marking prices on the retailer's 

containers; and you said that you have further discovered that 

"a wholesaler of wine would, while rotating wine stock, attempt 

to make his competitors wine unmarketable by wiping the bottle 

tops of his competitor's wine with a kerosene rag, by unscrewing 

the bottle tops and placing dog hair In his competitor's wine, 

. . * and by engaging in other prohibited practices." 

After giving those facts, you asked the following two 

questions in regard to the construction of Section 3(b) of 

Article 666-17 of Vernon's Penal Code. 

"1. Assuming that wine 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 the marking of prices on a retailer's 

wine containers by a wholesaler of wine prohibited 

by the language of subsection 3(b) and (f) of Section 

17 of Article I of the Texas Liquor Control Act? 

"2. Assuming that wine Is perishable, is the 

rotation of wine stock of a retailer by a wholesaler of 

wins mt prohibited by the language of subsection 

-1294- 
Hon. Coke R. Stevenson, Jr., Page 2 (Opinion No. C-269) 

3(b) and (f) of Section 17 of Article I of the Texas 

Liquor Control Act?" 

Since the perishability of wine 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 It makes It unlawful for 

a wholesaler and other named 

to a retailer. P arties to "furnish" a "service" 

As the words 'furnish" and "service" are not 

defined, and are words of common use, 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 the word 'furnish" is so well known there 

is no need to discuss it. Whether it was a "service" or something else In this case, It was "furnished" by the wholesaler 

to the retailer. 

Although the meaning 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: 

-1295- 
Hon. Coke R. Stevenson, Jr., Page 3 (Opinion No. C- 269) 

"Webster's Third New International Dictionary 

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: 

'deeds useful or Instrumental toward some object.,' 

. . . In construing the state's Unemployment Compensation Act the Supreme Court of Utah had occasion 

in Creameries of America v. Industrial Commission, 

98 Utah 571, 102 P.2d 300, 304, to differentiate 

'services' and 'personal services’. The court said: 

'In ordinary usage the term "services" has a 

rather broad and general meaning. 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's New International Diot'ionary is 

"performance of labor for the benefit of another"; 

"Act or Instance of helping, or benefiting". The 

term "personal service" 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: 

"the word '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; that which promotes interest or happiness; 

benefit; avail; an advantage conferred or brought 

about,; be~nefit or good performed, done or caused; use; 

employment, things required for use." 

In the statute we 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 exactly what was 

furnished by the wholesaler in this case. The performing of 

the acts done by the wholesaler in connection with displaying 

the wine in this case were unquestionably permitted by the retaller because he thought they were of benefit to him. 

-1296- 
Ron. Coke R. Stevenson, Jr., Page 4 (Opinion No. C-269) 

As the w.ords of 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 the performance of other acts 

by a wine wholesaler for the benefit of 

the retailer in displaying his wine, is 

prohibited ~b the language of Section 3(b) 

of Article6 ,z' 647 of Vernon's Penal Code. 

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 

-1297-