Aw-rOHNE:Y DENER*L April 17, 1968

Honorable 0.N. Humphreys, Jr. Acting Administrator Texas Liquor Control Board Capitol Station Austin, Texas 78711 Opinion No. M-218
Re: May beer be legally possessed by an employee of abeer retailer on the latter's licensed premises in a 2 5/8gallon container bearing the beer brand name andwhich has been filled from a tax

Dear

this paid legal-sized l/2 barrel of beer purchased by the beer retailer from a Mr. Humphreys: beer distributor. The letter fromyour department requesting an opinion of office reads, inpart, as follows: "Therehas been created abeverage serving apparatus which would contain 2 5/E gallons of draft beer when full. It is filled by receiving a sanitary transfer of draft beer from a legalsized, tax-paid l/2barrel of draft beer. It contains equipment to keep thebeer cold. It may be strapped on the back of aperson and has an outlet hose for dispensing beer into apaper cupwhich may be delivered to the consumer. The brand name of the beer may be placed on the apparatus. "Themanufacturer of this apparatus contends that itwould provide abeer,retailer with a method of serving beer tohuge crowds such as appear at theAstrodome in a sanitary and safe manner. . . . "Itdoes appear tous that the apparatus would facilitate the serving of cold draft beer in a safe and sanitary manner to a large crowd - - particularly so since only paper cupswhich are not harmful when thrown or dropped would be used.

-1044-Honorable 0.N. Humphreys, Jr., Page 2 (M-218)

"However, we wonder whether this apparatus may be used for dispensing beer by abeer retailer under the terms of the Texas Liquor Control Act. "The term 'container' asused inArticle II of the Texas Liquor Control Act isdefined in Section 1, (d)ofArticle II of the Texas Liquor Control Act (Article 667-1, (d)ofVernon's Texas Penal Code) as follows:

"'The term "container" means any container holding beer in quantities of one (1)barrel, one-half (l/2) barrel, one-quarter (l/4)barrel, one-eighth (l/8)barrel, or anybottle or canhaving a capacity of twelve (12)fluid ounces, twenty-four (24) fluid ounces, and thirty-two (32) fluid ounces, and no container of any other capacity shall be authorized.'
"In Section 8ofArticle II of the Texas Liquor Control Act (Article 667-8 ofVernon's Texas Penal Code) it isprovided as follows:

"'It shall be unlawful for anyperson to sell, store, possess, or transport in this State, any beer unless itbe in a container asdefined in Section 1 of this Article, and every such container shall bear abrand, imprint, or label showing the full name and address of the brewer ormanufacturer of such beer, or the name and address of any distributor forwhom a special brand ismanufactured; and in the event such beer is sold or transported in containers packed in anybox, crate, carton, or similar device, the same information shall appear upon the outside of such package.'
"In Section 3, (e)ofArticle II of the Texas Liquor Control Act (Article 667-3, (e)ofVernon's Texas Penal Code) it isprovided as follows: (the underlining is ours)

-1045-Honorable 0.N. Humphreys, Jr., Page.3 (M-218)

"'ARetail Dealer's On-Premise License shall authorize the holder thereof to sell beer for consumption on or off the premises where sold, inor from any lawful container to the ultimate consumer, but not for resale.
. . .'
"In Section 24, (2)ofArticle II of the Texas Liquor Control Act (Article 667-24 (,2) ofVernon's Texas Penal Code) it isprovided as follows: (theunderlining is ours)

"'It shall be unlawful for any retail dealer to dispense any draught beer unless each faucet or other dispensing apparatus is equipped with a sign clearly indicating the name or brand of the particular product being at the time dispensed through each faucet or other a

..+sg&;ydsg shall be in legib e full sight of the purchaser.'
"As far aswe know the above provisions of law are the only provisions relevant to our question.

"This is our question: May beer be legally possessed by an employee of abeer retailer on the licensed premises of such beer retailer in a 2 5/E gallon container which bears thebrand name of thebeer andwhich has been filled from a tax-paid, legal-sized l/2barrel of beer purchased by thebeer retailer from abeer distributor? If so, may such beer be served and sold from such 2 5/8gallon container to customers on the licensed premises?" The Texas Liquor Control Act is to be liberally construed to accomplish the express and implicit intent of the Legislature, i.e., the "exercise of thepolice power of the State for theprotection of thewelfare, health, peace, temperance and safety of the people of the State." Vernon's Penal Code, Article,666-2; Texas Liquor Control Board v. Floyd, 117 S.W.Zd 530 '(Tex.Civ.App: 1938, nowrit); Texas Liquor ControlBoard v. 'SuperSaving Stamps Company, 303 S.W.Zd 536 (Tex.Civ.App. 1957, nowrit).

-1046 -Honorable 0.N. Humphreys, Jr., Page 4 (M-218)

It is the opinion of this office thatArticle II, Section 1, (d)of the Texas Liquor Control Act was passed to standardize the containers inwhich beer could bemerchandised and soldby the brewery to the retail outlet. This standardization provides amethod whereby the tax that is tobe levied on the beer and the appropriate standardized tax stampmay be affixed upon the container when a first sale ismade within this State. The legislative intent appears to be to regulate the containers thatmay be sold, stored, passed or transported by the brewery orwholesaler of beer. We find no legislative intent toprohibit aRetail Dealer's On-Premise licensee from using an~apparatussuch asyou describe to assist him as an intermediate step indispensing and serving beer from a legal container purchased from the distributor. Therefore, it is the opinion of this office that beer may be legally possessed for the purpose of dispensing by an employee of aRetail Dealer's On-Premise licensee on the licensed premises of the licensee in a 2 5/8 gallon container which bears the brand name of the beer andwhich has been filled on the licensed premises by the licensee or his agent from a tax-paid, legalsized container of beer purchased by the licensee from abeer distributor. It is the'further opinion of this office that such beer may be served and sold by the Retail Dealer's On-Premise licensee or his agent from the 2 S/8 gallon container to customers on the licensed premises under the aforesaid circumstances.
SUMMARY~.
Beermay be legally possessed forthe purpose of dispensing by an employee of aRetail Dealer's On-Premise Licensee on the licensed premises of the licensee in a 2 5/Egallon container which bears the brand name of the beer andwhich has been filled on the licensed premises by the licensee or his agent from a tax-paid, legal-sized~l/2 barrel of beer purchased by the licensee from abeer distributor. Beermay be served and sold by the Retail Dealer's On-Premise licensee or his agent from the 2 5/Egallon container to customers on the litensed premises. truly yours,

neral,of:TsxasHonorable 0.N. Humphreys, Jr., Page 5 (M-218)

Prepared by Douglas H. Chilton Assistant Attorney General DHC/dt

APPROVED:
OPINION COMMITTEE Hawthorne Phillips, Chairman **Kerns** Taylor, Co-Chairman W.V. Geppert Monroe Clayton Harold Kennedy Pat Bailey
A. J. CARUBBI, JR. Executive Assistant

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