ALCOHOLIC BEVERAGE CODE
TITLE 2. ADMINISTRATION OF CODE
CHAPTER 5. ALCOHOLIC BEVERAGE COMMISSION
SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
§ 5.01. TEXAS ALCOHOLIC BEVERAGE COMMISSION. (a) The
Texas Alcoholic Beverage Commission is an agency of the state.
(b) The Texas Alcoholic Beverage Commission is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the commission is
abolished and Subchapter A, Chapter 5, of this code expires
September 1, 2005.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1979, 66th Leg., p. 1965, ch. 777, § 2, eff. Aug.
27, 1979; Acts 1985, 69th Leg., ch. 462, § 17, eff. Aug. 26,
1985; Acts 1985, 69th Leg., ch. 479, § 190, eff. Sept. 1, 1985;
Acts 1985, 69th Leg., ch. 729, § 17, eff. Sept. 1, 1985; Acts
1987, 70th Leg., ch. 303, § 5, eff. June 11, 1987; Acts 1987,
70th Leg., ch. 1008, § 11, eff. Sept. 1, 1987; Acts 1989, 71st
Leg., ch. 2, § 3.01, eff. Aug. 28, 1989; Acts 1989, 71st Leg.,
ch. 238, § 38, eff. Jan. 1, 1990; Acts 1991, 72nd Leg., 1st C.S.,
ch. 17, § 1.01, eff. Nov. 12, 1991; Acts 1993, 73rd Leg., ch.
934, § 3, eff. Sept. 1, 1993.
§ 5.02. MEMBERS OF COMMISSION; APPOINTMENT. (a) The
commission is composed of three members, who are appointed by the
governor with the advice and consent of the senate.
(b) Each member must be a Texas resident, must have resided
in the state for at least five years next preceding his appointment
and qualification, and must be a qualified voter in the state at the
time of his appointment and qualification.
(c) Appointments to the commission shall be made without
regard to the race, color, handicap, sex, religion, age, or
national origin of the appointees.
(d) A person is not eligible for appointment if the person's
spouse is disqualified for appointment under Section 5.05 of this
code.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1985, 69th Leg., ch. 403, § 1, eff. Aug. 26,
1985.
§ 5.03. TERMS OF OFFICE. The members of the commission
hold office for staggered terms of six years, with the term of one
member expiring every two years. Each member holds office until his
successor is appointed and has qualified. A member may be appointed
to succeed himself.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.04. CHAIRMAN. The governor shall designate one
member of the commission as chairman.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.05. RELATIONSHIP WITH ALCOHOLIC BEVERAGE BUSINESS
PROHIBITED. (a) No person may be appointed to or serve on the
commission, or hold an office under the commission, or be employed
by the commission, who:
(1) has any financial connection with a person engaged
in an alcoholic beverage business;
(2) holds stocks or bonds in an alcoholic beverage
business; or
(3) has a pecuniary interest in an alcoholic beverage
business.
(b) No member of the commission, or anyone holding an office
under the commission, or any employee of the commission, may
receive a commission or profit from or have an interest in the sale
or purchase of alcoholic beverages.
(c) A person may not serve as a member of the commission or
act as the general counsel to the commission if the person is
required to register as a lobbyist under Chapter 305, Government
Code, because of the person's activities for compensation on behalf
of a profession related to the operation of the commission.
(d) An officer, employee, or paid consultant of a Texas
trade association in the field of alcoholic beverage manufacture,
distribution, service, or sales may not be a member or employee of
the commission.
(e) A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of
alcoholic beverage manufacture, distribution, or sales may not be a
member or employee of the commission.
(f) For the purposes of this section, a Texas trade
association is a nonprofit, cooperative, and voluntarily joined
association of businesses or persons designed to assist its members
and its industry or profession in dealing with mutual business or
professional problems and in promoting their common interest.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1985, 69th Leg., ch. 403, § 2, eff. Aug. 26,
1985; Acts 1987, 70th Leg., ch. 167, § 2.19(12), eff. Sept. 1,
1987; Acts 1993, 73rd Leg., ch. 934, § 4, eff. Sept. 1, 1993.
§ 5.051. GROUNDS FOR REMOVAL FROM COMMISSION. (a) It
is a ground for removal from the commission if a member:
(1) does not have at the time of appointment the
qualifications required by Section 5.02 of this code;
(2) does not maintain during the service on the
commission the qualifications required by Section 5.02 of this code
for appointment to the commission;
(3) violates a prohibition established by Section 5.05
of this code;
(4) is unable because of illness or disability to
discharge the member's duties for a substantial portion of the term
for which the member was appointed; or
(5) is absent from more than one-half of the regularly
scheduled commission meetings that the member is eligible to attend
during each calendar year, except when the absence is excused by
majority vote of the commission.
(b) The validity of an action of the commission is not
affected by the fact that it was taken when a ground for removal of a
member of the commission existed.
(c) If the administrator has knowledge that a potential
ground for removal exists, the administrator shall notify the
chairman of the commission of the ground. The chairman of the
commission shall then notify the governor that a potential ground
for removal exists.
Added by Acts 1985, 69th Leg., ch. 403, § 3, eff. Aug. 26, 1985.
§ 5.06. COMMISSION OFFICE. The office of the commission
shall be in the city of Austin.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.07. COMMISSION MEETINGS. (a) The commission may
meet in the city of Austin at times it determines.
(b) A majority of the members constitutes a quorum for the
transaction of business or for the exercise of any of the powers or
duties of the commission.
(c) The commission shall develop and implement policies
that will provide the public with a reasonable opportunity to
appear before the commission and to speak on any issue under the
jurisdiction of the commission.
(d) Repealed by Acts 2001, 77th Leg., ch. 1420, § 14.724,
eff. Sept. 1, 2001.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1985, 69th Leg., ch. 403, § 4, eff. Aug. 26,
1985; Acts 1989, 71st Leg., ch. 238, § 39, eff. Jan. 1, 1990;
Acts 2001, 77th Leg., ch. 1420, § 14.724, eff. Sept. 1, 2001.
§ 5.08. PER DIEM, EXPENSES. Members of the commission
receive per diem of $10 a day, for not more than 60 days a year, plus
actual expenses, while attending commission meetings or otherwise
engaged in the performance of their duties.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.09. ANNUAL REPORT. Once each year, the commission
shall file with the governor and the presiding officer of each house
of the legislature a complete and detailed written report
accounting for all funds received and disbursed by the commission
during the preceding year. The form of the annual report and the
reporting time shall be that provided in the General Appropriations
Act. The commission shall also include in the report other matters
concerning its administration of this code. Except as provided by
this section, the commission shall determine the format and
contents of the report, and the commission may have copies of the
report printed for distribution as it considers appropriate.
Acts 1977, 65th Leg., p. 397, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1983, 68th Leg., p. 5223, ch. 955, § 1, eff. Aug.
29, 1983; Acts 1985, 69th Leg., ch. 403, § 5, eff. Aug. 26, 1985.
§ 5.10. EMPLOYEES; COMPENSATION; BONDS. (a) The
commission or administrator may employ clerks, stenographers,
inspectors, chemists, and other employees necessary to properly
enforce this code.
(b) The administrator or the administrator's designee shall
develop an intra-agency career ladder program. The program shall
require the intra-agency posting of all nonentry level positions
concurrently with any public posting. The administrator or the
administrator's designee shall develop a system of annual
performance evaluations. All merit pay for commission employees
must be based on the system established under this subsection. The
employees shall be compensated as provided by legislative
appropriation. The commission or administrator shall determine the
duties of all employees of the commission.
(c) The administrator or the administrator's designee shall
prepare and maintain a written policy statement to assure
implementation of a program of equal employment opportunity under
which all personnel transactions are made without regard to race,
color, disability, sex, religion, age, or national origin. The
policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, appointment, training, and
promotion of personnel that are in compliance with the Commission
on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes);
(2) a comprehensive analysis of the commission work
force that meets federal and state guidelines;
(3) procedures by which a determination can be made of
significant underuse in the commission work force of all persons
for whom federal or state guidelines encourage a more equitable
balance; and
(4) reasonable methods to appropriately address those
areas of significant underuse.
(d) A policy statement prepared under Subsection (c) of this
section must cover an annual period, be updated annually and
reviewed by the Commission on Human Rights for compliance with
Subsection (c)(1) of this section, and be filed with the governor's
office. The governor's office shall deliver a biennial report to
the legislature based on the information submitted under this
subsection. The report may be made separately or as a part of other
biennial reports made to the legislature.
(e) Repealed by Acts 2003, 78th Leg., ch. 285, § 31(4).
(f) Repealed by Acts 1993, 73rd Leg., ch. 934, § 110,
eff. Sept. 1, 1993.
Acts 1977, 65th Leg., p. 398, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1985, 69th Leg., ch. 403, § 6, eff. Aug. 26,
1985; Acts 1993, 73rd Leg., ch. 934, § 5, 110, eff. Sept. 1,
1993; Acts 2003, 78th Leg., ch. 285, § 31(4), eff. Sept. 1,
2003.
§ 5.101. HUMAN RESOURCES DIVISION. (a) A human
resources division is established within the commission.
(b) The division is responsible for personnel, recruiting,
hiring, and other human resource functions and shall provide
recruiting and technical assistance to the divisions and regional
offices of the commission.
(c) The division shall develop policies and procedures
related to recruitment, hiring, and other human resource functions
that are in compliance with state and federal law.
Added by Acts 1993, 73rd Leg., ch. 934, § 6, eff. Sept. 1, 1993.
§ 5.102. RECRUITMENT. For the purpose of providing
adequate personnel for all job positions in the commission, the
commission shall:
(1) develop a recruiting program that identifies
underrepresentation with the commission and focuses on recruiting
different ethnic, racial, or gender groups for job categories in
which underrepresentation occurs; and
(2) require that all applicants be reviewed by the
human resources division to ensure consideration of
underrepresented ethnic, racial, or gender groups.
Added by Acts 1993, 73rd Leg., ch. 934, § 6, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1079, § 1, eff. June 19,
1997.
§ 5.103. ANNUAL REPORT. The administrator shall report
not later than February 1 of each year to the commission on the
progress of the commission in the recruitment and hiring of
personnel in compliance with the commission's recruitment and
hiring policies.
Added by Acts 1993, 73rd Leg., ch. 934, § 6, eff. Sept. 1, 1993.
§ 5.11. ADMINISTRATOR. The commission shall appoint an
administrator to serve at its will and, subject to its supervision,
administer this code. Unless the commission orders otherwise, the
administrator shall be manager, secretary, and custodian of all
records. The administrator shall devote his entire time to the
office and shall receive a salary as appropriated by the
legislature.
Acts 1977, 65th Leg., p. 398, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 2003, 78th Leg., ch. 285, § 2, eff. Sept. 1,
2003.
§ 5.12. CONCURRENT DUTIES OF ADMINISTRATOR. The
commission shall specify the duties and powers of the administrator
by printed rules and regulations entered in its minutes and shall
develop and implement policies that clearly define the respective
responsibilities of the administrator, the assistant
administrator, and the staff of the commission. The commission or
administrator may develop a procedure under which the commission or
administrator, or the designee of either, may negotiate the
repayment of debts owed the commission, including fees and
delinquent taxes. When this code imposes concurrent powers or
duties on the commission and the administrator, the commission
shall designate those powers and duties which it delegates to the
administrator. An order, decision, or judgment rendered and
entered by the administrator in a matter in which the administrator
has been authorized to act is not subject to change, review, or
revision by the commission. A concurrent power or duty which has
not been specifically delegated to the administrator by the
commission's order is retained by the commission, and an order,
decision, or judgment rendered and entered by the commission in a
matter in which the commission has retained authority is not
subject to change, review, or revision by the administrator.
Acts 1977, 65th Leg., p. 398, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1985, 69th Leg., ch. 403, § 7, eff. Aug. 26,
1985; Acts 1989, 71st Leg., 1st C.S., ch. 36, § 2, eff. Oct. 18,
1989.
§ 5.13. ASSISTANT ADMINISTRATOR. The administrator
shall appoint an assistant administrator. The assistant
administrator must meet the same qualifications as the
administrator. The assistant administrator shall take the
constitutional oath of office. In the absence of the administrator,
or in case of his inability to act, the assistant administrator
shall perform the duties conferred on the administrator by law or
delegated to the administrator by the commission. If there is a
vacancy in the office of administrator, the assistant administrator
shall perform the duties of the administrator until an
administrator has been appointed by the commission. At other times
he shall perform those duties and have those functions, powers, and
authority as may be delegated to him by the administrator.
Acts 1977, 65th Leg., p. 398, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 2003, 78th Leg., ch. 285, § 3, eff. Sept. 1,
2003.
§ 5.14. INSPECTORS AND REPRESENTATIVES. The commission
or administrator may commission as many inspectors and
representatives as are necessary to enforce this code and other
laws administered by the commission. Each inspector and
representative shall take the constitutional oath of office, which
shall be filed in the office of the commission. Each commissioned
inspector and representative has all the powers of a peace officer
coextensive with the boundaries of the state.
Acts 1977, 65th Leg., p. 398, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1989, 71st Leg., ch. 238, § 40, eff. Jan. 1,
1990; Acts 2003, 78th Leg., ch. 285, § 4, eff. Sept. 1, 2003.
§ 5.141. PURCHASE OF FIREARM FROM COMMISSION BY
INSPECTOR OR REPRESENTATIVE. (a) A commissioned inspector or
representative of the commission may purchase for an amount set by
the commission, not to exceed fair market value, a firearm issued to
the inspector or representative by the commission if the firearm is
not listed as a prohibited weapon under Section 46.05, Penal Code,
and if the firearm is retired by the commission for replacement
purposes.
(b) The commission may adopt rules for the sale of a retired
firearm to an inspector or representative of the commission.
Added by Acts 1991, 72nd Leg., ch. 37, § 2, eff. April 19, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 14.01, eff. Sept. 1,
1995.
§ 5.142. SPECIAL INSPECTORS OR
REPRESENTATIVES. (a) The commission or administrator may appoint
as a special inspector or representative an honorably retired
commissioned inspector or representative.
(b) A special inspector or representative is subject to the
orders of the commission and is subject to the orders of the
governor for special duty to the same extent as other law
enforcement officers.
(c) Repealed by Acts 2003, 78th Leg., ch. 285, § 31(5).
(d) A special inspector or representative is not entitled to
compensation from the state for service as a special inspector or
representative.
(e) A special inspector or representative commission
expires January 1 of the first odd-numbered year after appointment.
The commission may revoke a special inspector or representative
commission at any time for cause.
Added by Acts 1993, 73rd Leg., ch. 35, § 1, eff. April 16, 1993.
Amended by Acts 2003, 78th Leg., ch. 285, § 31(5), eff. Sept. 1,
2003.
§ 5.15. ASSISTANT ATTORNEYS GENERAL. The attorney
general shall appoint as many as six assistant attorneys general,
as the commission determines necessary, to enable the commission to
more efficiently enforce this code. The attorney general and the
assistant attorneys general shall prosecute all suits requested by
the commission and defend all suits against the commission. The
commission shall provide the assistant attorneys general with
necessary stenographers and office space. The assistant attorneys
general shall be paid by the commission out of funds appropriated to
it for the administration of this code. Their compensation shall be
on the same basis as assistant attorneys general devoting their
time to general state business.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.16. REPRESENTATION IN APPEAL TO COMMISSION. No
member of the legislature or other person may appear for
compensation in a representational capacity in an appeal to the
commission unless he first files an affidavit supplied by the
commission and makes a full disclosure of whom he represents and of
the fact that he is being compensated for doing so. The commission
shall provide appropriate forms, and these records are a public
record of the commission.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.17. SUITS AGAINST THE COMMISSION: VENUE. In all
suits against the commission, except appeals governed by Section
11.67 or 32.18 of this code, venue is in Travis County.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.18. AUDIT. The financial transactions of the
commission are subject to audit by the state auditor in accordance
with Chapter 321, Government Code.
Added by Acts 1985, 69th Leg., ch. 403, § 8, eff. Aug. 26, 1985.
Amended by Acts 1989, 71st Leg., ch. 584, § 35, eff. Sept. 1,
1989.
§ 5.20. STANDARDS OF CONDUCT INFORMATION. The
commission shall provide to its members and employees, as often as
necessary, information regarding their qualification for office or
employment under this code and their responsibilities under
applicable laws relating to standards of conduct for state officers
or employees.
Added by Acts 1993, 73rd Leg., ch. 934, § 7, eff. Sept. 1, 1993.
SUBCHAPTER B. POWERS AND DUTIES
§ 5.31. GENERAL POWERS AND DUTIES. The commission may
exercise all powers, duties, and functions conferred by this code,
and all powers incidental, necessary, or convenient to the
administration of this code. It shall inspect, supervise, and
regulate every phase of the business of manufacturing, importing,
exporting, transporting, storing, selling, advertising, labeling,
and distributing alcoholic beverages, and the possession of
alcoholic beverages for the purpose of sale or otherwise. It may
prescribe and publish rules necessary to carry out the provisions
of this code.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.32. MAY REQUIRE REPORTS. The commission may require
the filing of reports and other data by persons engaged in the
alcoholic beverage business which the commission finds necessary to
accomplish the purposes of this code.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.33. REGULATE LICENSEES AND PERMITTEES. The
commission shall supervise and regulate licensees and permittees
and their places of business in matters affecting the public. This
authority is not limited to matters specifically mentioned in this
code.
Acts 1977, 65th Leg., p. 399, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.331. PUBLIC DISTURBANCE REPORTS. Local law
enforcement agencies in each county with a population of 3.3
million or more shall send to the commission reports and other data
concerning shootings, stabbings, and other public disturbances
that occur on the premises of a permittee or licensee. The reports
and data shall be incorporated into the record of the permittee or
licensee. The administrator of the Texas Alcoholic Beverage
Commission shall prescribe the form and content of such reports.
Added by Acts 1985, 69th Leg., ch. 688, § 1, eff. Sept. 1, 1985.
Amended by Acts 2001, 77th Leg., ch. 669, § 2, eff. Sept. 1,
2001.
§ 5.34. DELEGATION OF AUTHORITY. (a) The commission
may authorize its commissioned peace officers, servants, and
employees to carry out, under its direction, the provisions of this
code.
(b) The commission shall develop and implement policies
that clearly define the respective responsibilities of the
commission and the staff of the commission.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1993, 73rd Leg., ch. 934, § 8, eff. Sept. 1,
1993.
§ 5.35. ISSUANCE OF PERMITS AND LICENSES. The
commission may grant, refuse, suspend, or cancel alcoholic beverage
permits and licenses as provided in this code.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.36. INVESTIGATION OF VIOLATIONS. (a) The
commission shall investigate violations of this code and of other
laws relating to alcoholic beverages, and shall cooperate in the
prosecution of offenders before any court of competent
jurisdiction. The commission may seize alcoholic beverages
manufactured, sold, kept, imported, or transported in violation of
this code and apply for the confiscation of the beverages if
required to do so by this code.
(b) Repealed by Acts 1993, 73rd Leg., ch. 790, § 46(2),
eff. Sept. 1, 1993.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1979, 66th Leg., p. 1970, ch. 777, § 14, eff.
Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 790, § 46(2), eff.
Sept. 1, 1993.
§ 5.37. COLLECTION OF TAXES AT SOURCE. (a) If the
federal government provides a method of collecting liquor taxes at
the source, the commission may enter contracts and comply with
regulations, even to the extent of abrogating provisions of this
code which are inconsistent with federal law or regulations, in
order to receive the portion of the taxes allocated to the state.
The taxes received shall be distributed as provided in this code.
(b) The commission may acquire by gift, grant, or purchase,
port of entry or other facilities for the administration of the
Alcoholic Beverage Code, including the collection of taxes and
confiscation of unlawful containers and illicit beverages. The
commission may enter into agreements with agencies of the United
States or other persons, if in the judgment of the commission, it
will benefit the state to place facilities under its control
through lease or sale from the United States or other persons. The
commission may expend funds for the purpose of rehabilitating,
renewing, restoring, extending, enlarging, improving, or
performing routine maintenance on facilities under its control.
(c) For the purpose of complying with Chapter 455, Acts of
the 59th Legislature, Regular Session, 1965, as amended (Article
678f, Vernon's Texas Civil Statutes), the commission is considered
to be a public authority and unless the commission requests
facilities to be obtained in accordance with Chapter 258, Acts of
the 48th Legislature, Regular Session, 1943, as amended (Article
666b, Vernon's Texas Civil Statutes), the provisions of that Act do
not apply to the acquisition of facilities under this Act.
(d) The commission is authorized to receive in the form of a
gift, grant, or donation, any funds consistent with the purposes
and goals of the commission and the designation of the grantor.
However, no gift, grant, or donation may be offered or accepted from
any party to any contested case before the agency, or from any party
licensed or regulated by the commission.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1979, 66th Leg., p. 612, ch. 287, § 1, eff. May
24, 1979; Acts 1995, 74th Leg., ch. 1060, § 1, eff. Aug. 28,
1995.
§ 5.371. PROCEEDS FROM CONTRABAND. Property, money,
and the proceeds from forfeited contraband provided to the
commission by a federal agency or under state or federal law shall
be deposited in the commission's account in the state treasury and
may be appropriated only to the commission for law enforcement
purposes. Funds under this section that are not expended at the
close of a fiscal year shall be reappropriated for the same purpose
the following fiscal year.
Added by Acts 1993, 73rd Leg., ch. 934, § 9, eff. Sept. 1, 1993.
§ 5.38. QUALITY AND PURITY OF BEVERAGES. The commission
shall require by rule that any alcoholic beverage sold in this state
conform in all respects to its advertised quality. The commission
shall promulgate and enforce rules governing the labeling and
advertising of all alcoholic beverages sold in the state, and shall
adopt and enforce a standard of quality, purity, and identity of all
alcoholic beverages. The commission shall promulgate and enforce
necessary rules to safeguard the public health and to insure
sanitary conditions in the manufacturing, refining, blending,
mixing, purifying, bottling, rebottling, and sale of alcoholic
beverages.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.39. REGULATION OF LIQUOR CONTAINERS. The
commission shall adopt rules to standardize the size of containers
in which liquor may be sold in the state and relating to
representations required or allowed to be displayed on or in the
containers. To accommodate the alcoholic beverage industry's
conversion to the metric system, the commission shall adopt rules
permitting the importation and sale of liquor in metric-sized
containers as well as in containers sized according to the United
States standard gallon system.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.40. REGULATION OF BEER CONTAINER DEPOSITS. If the
commission finds it necessary to effectuate the purposes of this
code, it may adopt rules to provide a schedule of deposits required
to be obtained on beer containers delivered by a licensee.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.41. ALCOHOL USED FOR SCIENTIFIC PURPOSES, ETC. The
commission shall license and regulate the use of alcohol and liquor
for scientific, pharmaceutical, and industrial purposes. The
commission shall provide by rule for the withdrawal of alcohol or
liquor for those purposes from warehouses or denaturing plants, and
shall prescribe the manner in which the alcohol or liquor may be
used, tax free, for scientific research, in hospitals or
sanitoriums, in industrial plants, or for other manufacturing
purposes.
Acts 1977, 65th Leg., p. 400, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.42. PENALTY FOR VIOLATION OF RULE. A person who
violates a valid rule of the commission is guilty of a misdemeanor
and on conviction is punishable by the penalty prescribed in
Section 1.05 of this code.
Acts 1977, 65th Leg., p. 401, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.43. WHO MAY HOLD HEARING; RULES OF
EVIDENCE. (a) Except as provided by Subsection (b) for a hearing
held under Section 61.32 of this code, a hearing on the adoption of
commission rules, or a hearing on an employment matter, the
commission designates the State Office of Administrative Hearings
to conduct and make a record of any hearing authorized by this code.
If the commission or administrator declares a hearing to be an
emergency, the State Office of Administrative Hearings shall assign
an administrative law judge or may contract with a qualified
individual within five days and set a hearing as soon as possible.
(b) The commission or administrator may render a decision on
the basis of the record or the proposal for decision if one is
required under the administrative procedure law, Chapter 2001,
Government Code, as if the administrator or entire commission had
conducted the hearing. The commission may prescribe its rules of
procedure for cases not heard by the State Office of Administrative
Hearings.
Acts 1977, 65th Leg., p. 401, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1993, 73rd Leg., ch. 934, § 10, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 487, § 1, eff. Aug. 28, 1995.
§ 5.435. PUBLIC PARTICIPATION IN LICENSING OR PERMITTING
HEARINGS. (a) The commission or the party conducting a hearing
under this code that relates to an application for an alcoholic
beverage license or permit, the renewal, suspension, or revocation
of an alcoholic beverage license or permit, or other disciplinary
action against the holder of an alcoholic beverage license or
permit shall adopt rules or policies that provide the public with a
reasonable opportunity to appear before the commission or the party
conducting the hearing and to speak on any issue related to the
hearing.
(b) The commission or the party conducting the hearing shall
consider the public testimony in making a decision on the hearing.
(c) This section does not prohibit the commission or the
party conducting the hearing from adopting rules relating to:
(1) the conduct of the hearing, the order of
witnesses, or rules of conduct for participants, including
witnesses, at the hearing; and
(2) the reliability, relevance, or authenticity of
evidence presented at a hearing, except that a rule adopted under
this subsection may not prevent a party from presenting testimony
or evidence at a hearing or prevent the commission or the party
conducting the hearing from considering the testimony or evidence
under Subsection (b).
Added by Acts 1997, 75th Leg., ch. 877, § 1, eff. Sept. 1, 1997.
§ 5.44. SUBPOENA OF WITNESSES; WITNESS FEES;
CONTEMPT. (a) The commission or administrator, or an inspector
or representative of the commission under the direction of the
commission, for the purposes of this code, may:
(1) issue subpoenas;
(2) compel the attendance of witnesses;
(3) administer oaths;
(4) certify to official acts;
(5) take depositions inside or outside the state, as
provided by law;
(6) compel the production of pertinent books,
accounts, records, documents, and testimony; and
(7) certify to copies of documents as being true
copies on file in the official records of the commission.
(b) If a witness in attendance before the commission or
before an authorized representative refuses without reasonable
cause to be examined or answer a legal or pertinent question, or to
produce a book, record, or paper when ordered by the commission to
do so, the commission may apply to the district court for a rule or
order returnable in not less than two nor more than five days,
directing the witness to show cause before the judge why he should
not be punished for contempt. The commission may apply to the
district court of any county where the witness is in attendance, on
proof by affidavit of the fact, unless the order of contempt is
sought under Chapter 2001, Government Code, in which case the
commission shall apply to a district court of Travis County in
conformity with that Act. On return of the order, the judge hearing
the matter shall examine the witness under oath, and the witness
shall be given an opportunity to be heard. If the judge determines
that the witness has refused, without reasonable cause or legal
excuse, to be examined or answer a legal or pertinent question, or
to produce a book, record, or paper which he was ordered to bring or
produce, he may forthwith punish the offender as for contempt of
court.
(c) Subpoenas are served and witness fees and mileage paid
as in civil cases in the district court in the county to which the
witness is called, unless the proceeding for which the service or
payment is made is pursuant to Chapter 2001, Government Code, in
which case the service or payment shall be made as provided in that
Act. Witnesses subpoenaed at the instance of the commission shall
be paid their fees and mileage by the commission out of funds
appropriated for that purpose.
Acts 1977, 65th Leg., p. 401, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1979, 66th Leg., p. 1970, ch. 777, § 15, eff.
Aug. 27, 1979; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.
§ 5.441. FEES AND EXPENSES PAID MEMBERS OR EMPLOYEES OF
COMMISSION. (a) If a member of the commission, the
administrator, or an employee of the commission is called to attend
a federal or state judicial proceeding inside or outside the state
and the attendance relates to the individual's duties with the
commission, the individual shall pay to the comptroller any witness
fees he receives. The comptroller shall deposit the fees in the
state treasury to the credit of an appropriation made to the
commission for payment of fees and mileage of witnesses called by
the commission.
(b) An employee of the commission who travels inside or
outside the state on official business as the designated
representative of the administrator is entitled to reimbursement
for meals, lodging, and travel at the same rate as is applicable to
members of the commission.
Added by Acts 1979, 66th Leg., p. 1971, ch. 777, § 16, eff. Aug.
27, 1979. Amended by Acts 1997, 75th Leg., ch. 1423, § 1.01,
eff. Sept. 1, 1997.
§ 5.45. PROOF OF DOCUMENT. (a) In a suit by the state
or the commission or in which either is a party, a transcript from
the papers, books, records, or proceedings of the commission
purporting to contain a true statement of accounts between the
commission or the state and any person, or a copy of a rule, order,
audit, bond, contract, or other instrument relating to a
transaction between the commission and a person, when certified by
the administrator or chairman of the commission to be a true copy of
the original on file with the commission and authenticated under
the seal of the commission, is admissible as prima facie evidence of
the existence and validity of the original document and entitled to
the same credibility as the original document. If a suit is brought
on a bond or other written instrument, and the person alleged to
have executed the instrument denies by a sworn pleading to have
executed the instrument, the court shall require the production and
proof of the instrument.
(b) A member of the commission or the administrator may
execute a certificate under the seal of the commission setting
forth the terms of an order, rule, bond, or other instrument
referred to in this section. In the case of an order or rule, the
certificate may state that the order or rule was adopted,
promulgated, and published and filed with the commission and was in
force at any date or during any period of time. In the case of a
bond or other instrument, the certificate may state that it was
executed and filed with the commission and was in force at any date
or during any period of time. The certificate is prima facie
evidence of the facts stated in it and is admissible as evidence in
any action, civil or criminal, involving the facts contained in the
certificate without further proof of those facts.
Acts 1977, 65th Leg., p. 402, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.46. SECURITY FOR COSTS. No security for costs may
be required of a representative of the commission in a matter in
which the representative protests the issuance of a license or
permit in a hearing conducted by the county judge.
Acts 1977, 65th Leg., p. 402, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.47. RECORDS OF VIOLATIONS. Records of all
violations of this code by permittees and licensees, records
introduced and made public at hearings, and decisions resulting
from the hearings relating to the violations shall be kept on file
at the office of the commission in the city of Austin. The records
are open to the public.
Acts 1977, 65th Leg., p. 402, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.48. PRIVATE RECORDS. (a) "Private records," as
used in this section, means all records of a permittee, licensee, or
other person other than the name, proposed location, and type of
permit or license sought in an application for an original or
renewal permit or license, or in a periodic report relating to the
importation, distribution, or sale of alcoholic beverages required
by the commission to be regularly filed by a permittee or licensee.
(b) The private records of a permittee, licensee, or other
person that are required or obtained by the commission or its
agents, in connection with an investigation or otherwise, are
privileged unless introduced in evidence in a hearing before the
commission or before a court in this state or the United States.
Acts 1977, 65th Leg., p. 402, ch. 194, § 1, eff. Sept. 1, 1977.
§ 5.49. PRINTED COPIES OF CODE AND RULES. The
commission from time to time may have as many copies of this code
and any commission rule governing the collection or refund of the
gross receipts tax printed in pamphlet form for distribution as it
finds necessary.
Acts 1977, 65th Leg., p. 402, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1983, 68th Leg., p. 5225, ch. 956, § 3, eff. Aug.
29, 1983.
§ 5.50. ESTABLISHMENT OF CERTAIN FEES. (a) The
commission by rule may establish reasonable fees for tasks and
services performed by the commission in carrying out the provisions
of this code, including fees incidental to the issuance of licenses
and permits under Title 3 of this code.
(b) The commission may not increase or decrease a fee set by
this code, but if a statute is enacted creating a certificate,
permit, or license and there is no fee established, the commission
by rule may set a fee. The commission by rule shall assess and
collect annual surcharges from all holders of a certificate,
permit, or license issued by the commission in addition to any fee
set by this code. In assessing a surcharge, the commission may not
overly penalize any segment of the alcoholic beverage industry or
impose an undue hardship on small businesses.
(c) Insofar as they relate to the levying and collection of
a local fee, Sections 11.38 and 61.36 of this code do not apply to
fees set by rule of the commission.
(d) Revenues and surcharges from fees collected by the
commission under this section shall be deposited in the general
revenue fund.
Added by Acts 1987, 70th Leg., ch. 495, § 1, eff. Aug. 31, 1987.
Amended by Acts 1993, 73rd Leg., ch. 934, § 11, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 1001, § 4, eff. Aug. 28, 1995;
Acts 2003, 78th Leg., ch. 314, § 1, eff. June 18, 2003.
§ 5.51. BOOKKEEPING RECORDS. A permittee who holds a
permit issued under Chapters 28 through 33 of this code may elect to
keep all records required under this code on a machine bookkeeping
system. A permittee who desires to use such a system must submit a
written application for commission approval of the system before
implementing the system. The commission may authorize a permittee
to centralize the permittee's records.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 36, § 1, eff. Oct.
18, 1989.
§ 5.52. PROGRAM ACCESSIBILITY PLAN. The commission
shall prepare and maintain a written plan that describes how a
person who does not speak English or who has a physical, mental, or
developmental disability may be provided reasonable access to the
commission's programs.
Added by Acts 1993, 73rd Leg., ch. 934, § 12, eff. Sept. 1, 1993.
§ 5.53. PUBLIC INTEREST INFORMATION. (a) The
commission shall prepare information of public interest describing
the functions of the commission and the commission's procedures by
which complaints are filed with and resolved by the commission. The
commission shall make the information available to the public and
appropriate state agencies.
(b) The commission by rule shall establish methods by which
consumers and service recipients are notified of the name, mailing
address, and telephone number of the commission for the purpose of
directing a complaint to the commission. The commission may
require that the notification be provided on a sign prominently
displayed in the place of business of each individual or entity
regulated under this code.
Added by Acts 1993, 73rd Leg., ch. 934, § 13, eff. Sept. 1, 1993.
§ 5.54. RESOLUTION OF COMPLAINTS. (a) The commission
shall keep an information file about each complaint filed with the
commission that the commission has authority to resolve.
(b) If a written complaint is filed with the commission that
the commission has authority to resolve, the commission, at least
quarterly and until final disposition of the complaint, shall
notify the parties to the complaint of the status of the complaint
unless the notice would jeopardize an undercover investigation.
Added by Acts 1993, 73rd Leg., ch. 934, § 14, eff. Sept. 1, 1993.
§ 5.55. FUNDING OF TEXAS WINE MARKETING ASSISTANCE
PROGRAM.
Text of section as added by Acts 2003, 78th Leg., ch. 101, § 1
(a) Notwithstanding any other law, on or before October 1 of
each fiscal year, the commission shall transfer from funds
appropriated to the commission $250, 000 to the Department of
Agriculture to be used by the department to implement the Texas Wine
Marketing Assistance Program established by Chapter 110.
(b) The commission in accordance with this subsection may
recover the amount transferred under Subsection (a) by imposing a
surcharge on licenses and permits, other than an agent's permit or
an agent's beer license, issued or renewed by the commission each
fiscal year. The surcharge shall be an amount equal to the amount
transferred under Subsection (a) divided by the number of licenses
and permits the commission anticipates issuing during that year,
rounded down to the next lowest whole dollar.
(c) The governing body of an incorporated city or town or
the commissioners court of a county may not levy and collect a fee
under Section 11.38 or 61.36 based on a surcharge imposed under this
section.
Added by Acts 2003, 78th Leg., ch. 101, § 1, eff. Sept. 1, 2003.
For text of section as added by Acts 2003, 78th Leg., ch. 1221, §
1, see § 5.55, post.
§ 5.55. AGREEMENTS FOR ELECTRONIC PROCESSING OF LICENSES
OR PERMITS.
Text of section as added by Acts 2003, 78th Leg., ch. 1221, § 1
The commission or administrator may enter into an agreement
with another agency of this state to provide for the issuance of
original or renewal licenses or permits through the use of
electronic means, including use of the Internet, to facilitate the
licensing process. A reasonable service fee may be charged to
applicants who choose to use electronic or Internet service to
apply for original licenses or permits or to renew licenses or
permits, subject to other laws limiting or defining those fees;
provided, that no service fee may be charged by the commission or by
another agency to those applicants who choose not to utilize the
electronic or Internet method to apply for an original or a renewal
license or permit.
Added by Acts 2003, 78th Leg., ch. 1221, § 1, eff. Sept. 1, 2003.
For text of section as added by Acts 2003, 78th Leg., ch. 101, §
1, see § 5.55, ante.
