ALCOHOLIC BEVERAGE CODE
CHAPTER 28. MIXED BEVERAGE PERMIT
§ 28.01. AUTHORIZED ACTIVITIES. (a) The holder of a
mixed beverage permit may sell, offer for sale, and possess mixed
beverages, including distilled spirits, for consumption on the
licensed premises:
(1) from sealed containers containing not less than
one fluid ounce nor more than two fluid ounces or of any legal size;
and
(2) from unsealed containers.
(b) The holder of a mixed beverage permit for an
establishment in a hotel may deliver mixed beverages, including
wine and beer, to individual rooms of the hotel or to any other
location in the hotel building or grounds, except a parking area or
the licensed premises of another alcoholic beverage establishment,
without regard to whether the place of delivery is part of the
licensed premises. A permittee in a hotel may allow a patron or
visitor to enter or leave the licensed premises, even though the
patron or visitor possesses an alcoholic beverage, if the beverage
is in an open container and appears to be possessed for present
consumption.
(c) The holder of a mixed beverage permit may also:
(1) purchase wine, beer, ale, and malt liquor
containing alcohol of not more than 21 percent by volume in
containers of any legal size from any permittee or licensee
authorized to sell those beverages for resale; and
(2) sell the wine, beer, ale, and malt liquor for
consumption on the licensed premises.
Acts 1977, 65th Leg., p. 429, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, § 4, eff.
Sept. 1, 1977; Acts 1979, 66th Leg., p. 111, ch. 70, § 1, eff.
Aug. 27, 1979.
§ 28.02 FEE. (a) The annual state fee for an original
mixed beverage permit is $3,000.
(b) The annual state fee for the first renewal of a mixed
beverage permit is $2,250.
(c) The annual state fee for the second renewal of a mixed
beverage permit is $1,500.
(d) The annual state fee for the third and each subsequent
renewal of a mixed beverage permit is $750.
Acts 1977, 65th Leg., p. 430, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1983, 68th Leg., p. 1346, ch. 278, § 18, eff.
Sept. 1, 1984.
§ 28.03. INFORMATION REQUIRED OF APPLICANTS. In
addition to the information required of applicants for permits
under this code, the applicant for a mixed beverage permit must file
with his original and renewal application a sworn statement in a
form prescribed by the commission or administrator containing the
following information:
(1) the name and residential address of the lessor of
the premises;
(2) the name and address of the lessee of the premises;
(3) the amount of monthly rental on the premises and
the date of expiration of the lease;
(4) whether the lease or rental agreement includes
furniture and fixtures;
(5) whether the business is to be operated under a
franchise and, if so, the name and address of the franchisor;
(6) the name and address of the accountant of the
business;
(7) a list of all bank accounts, including account
numbers, used in connection with the business; and
(8) any information required by the commission or
administrator relevant to the determination of all persons having a
financial interest of any kind in the granting of the mixed beverage
permit.
Acts 1977, 65th Leg., p. 430, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.04. CHANGE IN CORPORATE CONTROL. (a) A mixed
beverage permit held by a corporation may not be renewed if the
commission or administrator finds that legal or beneficial
ownership of over 50 percent of the stock of the corporation has
changed since the time the original permit was issued.
(b) The commission or administrator may adopt reasonable
rules and regulations in accordance with the provisions of this
section.
(c) A corporation which is barred from renewing a permit
because of this section may file an application for an original
permit and may be issued an original permit if otherwise qualified.
(d) This section does not apply to a change in corporate
control:
(1) brought about by the death of a shareholder if his
surviving spouse or descendants are his successors in interest; or
(2) brought about when legal or beneficial ownership
of over 50 percent of the stock of the corporation has been
transferred:
(A) to a person who possesses the qualifications
required of other applicants for permits and is currently an
officer of the corporation and has been an officer of the
corporation ever since the date the original permit was issued; or
(B) if the permittee pays a fee of $500 and
notifies the commission, on completed forms and attachments
prescribed by the commission, of the proposed transfer at least 10
days prior to the date the transfer is to become effective and the
commission does not find that circumstances exist that would be
grounds for the denial of a renewal of the permit under Section
11.46 of this code and provided the ownership of the corporation
immediately after the transfer satisfies the requirements of this
code.
(e) Nothing in this section shall be construed to grant any
property right to any permit or construed to prevent the commission
from suspending or canceling a permit at any time after notice and
hearing for a violation of this code.
Acts 1977, 65th Leg., p. 430, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1987, 70th Leg., ch. 303, § 6, eff. June 11,
1987; Acts 1989, 71st Leg., 1st C.S., ch. 36, § 3, eff. Oct. 18,
1989; Acts 1993, 73rd Leg., ch. 934, § 34, eff. Jan. 1, 1994.
§ 28.05. RENEWAL OF PERMIT BY DESCENDANT OR SURVIVING
SPOUSE. If the surviving spouse or surviving descendant of a
holder of a mixed beverage permit qualifies as the successor in
interest to the permit as provided in Section 11.10 of this code,
the descendant or surviving spouse may continue to renew the permit
by paying a renewal fee equal to the fee the permittee would be
required to pay had he lived.
Acts 1977, 65th Leg., p. 431, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.06. POSSESSION OF ALCOHOLIC BEVERAGE NOT COVERED BY
INVOICE. (a) No holder of a mixed beverage permit, nor any
officer, agent, or employee of a holder, may possess or permit to be
possessed on the premises for which the permit is issued any
alcoholic beverage which is not covered by an invoice from the
supplier from whom the alcoholic beverage was purchased.
(b) A person who violates Subsection (a) of this section
commits a misdemeanor punishable by a fine of not more than $1,000
or by confinement in the county jail for no more than 30 days or by
both.
(c) No holder of a mixed beverage permit, nor any officer,
agent, or employee of a holder, may knowingly possess or permit to
be possessed on the licensed premises any alcoholic beverage which
is not covered by an invoice from the supplier from whom the
alcoholic beverage was purchased.
(d) A person who violates Subsection (c) of this section
commits a misdemeanor punishable by a fine of not less than $500 nor
more than $1,000 and by confinement in the county jail for not less
than 30 days nor more than two years. The commission or
administrator shall cancel the permit of any permittee found by the
commission or administrator, after notice and hearing, to have
violated or to have been convicted of violating Subsection (c) of
this section.
Acts 1977, 65th Leg., p. 431, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.07. PURCHASE AND TRANSPORTATION OF ALCOHOLIC
BEVERAGES. (a) All distilled spirits sold by a holder of a mixed
beverage permit must be purchased from a holder of a local
distributor's permit in the county in which the premises of a mixed
beverage permittee is located.
(b) If a holder of a mixed beverage permit is in a county
where there are no local distributors, he may purchase alcoholic
beverages in the nearest county where local distributors are
located and may transport them to his premises provided that he is
also a holder of a beverage cartage permit. The transporter may
acquire the alcoholic beverages only on the written order of the
holder of the mixed beverage permit. The alcoholic beverages must
be accompanied by a written statement furnished and signed by the
local distributor showing the name and address of the consignee and
consignor, the origin and destination of the shipment, and any
other information required by the commission or administrator. The
person in charge of the alcoholic beverages while they are being
transported shall exhibit the written statement to any
representative of the commission or any peace officer on demand,
and the statement shall be accepted by the representative or
officer as prima facie evidence of the lawful right to transport the
alcoholic beverages.
(c) If a mixed beverage permittee holds a beverage cartage
permit and his premises are located in a regional airport governed
by a board, commission, or authority composed of members from two or
more counties, and there is no local distributor at the airport, the
mixed beverage permittee may purchase alcoholic beverages from any
local distributor in a trade area served by the airport and
transport them to his licensed premises. The transportation of the
beverages must be in accordance with Subsection (b) of this
section.
Acts 1977, 65th Leg., p. 431, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, § 5, eff.
Sept. 1, 1977; Acts 1993, 73rd Leg., ch. 934, § 35, eff. Sept. 1,
1993.
§ 28.08. REFILLING CONTAINERS PROHIBITED. No holder of
a mixed beverage permit may refill with any substance a container
which contained distilled spirits on which the tax prescribed in
Section 201.03 of this code has been paid.
Acts 1977, 65th Leg., p. 432, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.081. SUBSTITUTION OF BRAND WITHOUT CONSENT OF
CONSUMER PROHIBITED. (a) The holder of a mixed beverage permit or
a private club permit, or the agent, servant, or employee of a
holder of a mixed beverage permit or private club permit commits an
offense if the holder, agent, servant, or employee substitutes one
brand of alcoholic beverage for a brand that has been specifically
requested by a consumer, unless the consumer is notified and
consents to the substitution.
(b) A holder of a permit who violates Subsection (a) of this
section is liable in a civil suit to a consumer for damages
resulting from the substitution. The court shall award the
prevailing party in an action under this section attorney's fees
and costs of action.
(c) The commission shall provide written notice of the
provisions of this section to an applicant or permittee when
issuing an original or renewal mixed beverage permit or private
club permit on or after October 1, 1993.
Added by Acts 1993, 73rd Leg., ch. 934, § 36, eff. Sept. 1, 1993.
§ 28.09. INVALIDATION OF STAMP. (a) A holder of a
mixed beverage permit or any person employed by the holder who
empties a bottle containing distilled spirits on which the tax
prescribed in Section 201.03 of this code has been paid, shall
immediately after emptying the bottle invalidate the
identification stamp on the bottle in the manner prescribed by rule
or regulation of the commission or administrator.
(b) Each holder of a mixed beverage permit shall provide at
all service counters where distilled spirits are poured from
bottles the necessary facilities for the invalidation of
identification stamps on bottles so that persons emptying distilled
spirits bottles may immediately invalidate the identification
stamps on them.
(c) If an empty distilled spirits bottle has locked on it an
automatic measuring and dispensing device of a type approved by the
commission or administrator, which prevents the refilling of the
bottle without unlocking the device and removing it from the
bottle, the identification stamp is not required to be invalidated
until immediately after the device has been unlocked and removed
from the bottle.
(d) A holder of a mixed beverage permit or any of his
officers, agents, or employees who is found in possession of an
empty distilled spirits bottle which contained distilled spirits on
which the tax prescribed in Section 201.03 of this code has been
paid and on which the identification stamp has not been invalidated
in accordance with this section commits a separate offense for each
bottle so possessed.
Acts 1977, 65th Leg., p. 432, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.10. CONSUMPTION RESTRICTED TO PREMISES;
EXCEPTIONS. (a) Except as provided by this section or Section
28.01(b), a mixed beverage permittee may not sell an alcoholic
beverage to another mixed beverage permittee or to any other person
except for consumption on the seller's licensed premises.
(b) A mixed beverage permittee may not permit any person to
take any alcoholic beverage purchased on the licensed premises from
the premises where sold, except that:
(1) a person who orders wine with food and has a
portion of the open container remaining may remove the open
container of wine from the premises; and
(2) a mixed beverage permittee who also holds a
brewpub license may sell or offer without charge on the premises of
the brewpub, to an ultimate consumer for consumption on or off the
premises, malt liquor, ale, or beer produced by the permittee, in or
from a lawful container in an amount that does not exceed one-half
barrel, provided that the aggregate amount of malt liquor, ale, and
beer removed from the premises under this subdivision does not
exceed 1,000 barrels annually.
Acts 1977, 65th Leg., p. 432, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 2001, 77th Leg., ch. 1274, § 1, eff. Sept. 1,
2001.
§ 28.11. BREACH OF PEACE. The commission or
administrator may suspend or cancel a mixed beverage permit after
giving the permittee notice and the opportunity to show compliance
with all requirements of law for the retention of the permit if it
finds that a breach of the peace has occurred on the licensed
premises or on premises under the control of the permittee and that
the breach of the peace was not beyond the control of the permittee
and resulted from his improper supervision of persons permitted to
be on the licensed premises or on premises under his control.
Acts 1977, 65th Leg., p. 432, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.12. SALE OF MALT BEVERAGES TO PERMITTEE. The sale
of malt beverages to a mixed beverage permittee by a local
distributor's permittee or by a licensee authorized to sell them
for resale is subject to the provisions of Section 61.73 of this
code.
Acts 1977, 65th Leg., p. 433, ch. 194, § 1, eff. Sept. 1, 1977.
§ 28.13. ISSUANCE OF PERMIT FOR CERTAIN BOATS. (a) A
mixed beverage permit may be issued for a boat if:
(1) the boat:
(A) carries at least 350 passengers;
(B) weighs at least 90 gross tons; and
(C) is at least 80 feet long; and
(2) the home port of the boat is in an area where the
sale of mixed beverages is legal.
(b) For purposes of Section 11.38 of this code, the home
port of the boat is treated as the location of the licensed
premises.
(c) Repealed by Acts 2003, 78th Leg., 3rd C.S., ch. 3, §
21.05.
(d) A mixed beverage permit may be issued under this section
to a boat regularly used for voyages in international waters
regardless of whether the sale of mixed beverages is lawful in the
area of the home port. A person having authority to deliver
alcoholic beverages to a mixed beverage permit holder in the county
where the licensed premises is located may deliver alcoholic
beverages purchased by the permit holder. Subsection (a)(2) does
not apply to this subsection.
(e) The provisions of Section 109.53 that relate to
residency requirements and compliance with Texas laws of
incorporation do not apply to the holders of a mixed beverage permit
under this section.
Added by Acts 1985, 69th Leg., ch. 540, § 1, eff. June 12, 1985.
Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 3, § 21.02, 21.05,
eff. Jan. 11, 2004.
§ 28.14. MERGER OR CONSOLIDATION OF CORPORATIONS HOLDING
MIXED BEVERAGE PERMITS. When two or more corporations which have
substantially similar ownership and which hold mixed beverage
permits issued by the commission merge or consolidate and pay to the
commission a $100 fee for each licensed premises, the surviving
corporation shall succeed to all the privileges of such
corporations in the permits held by such corporations provided the
surviving corporation is qualified to hold such permits under this
code. For purposes of this section, two corporations have
substantially similar ownership if 90 percent or more of both
corporations is owned by the same persons.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 36, § 4, eff. Oct.
18, 1989.
§ 28.15. STAMPS. (a) A mixed beverage permittee may
not possess or permit a person to possess on the premises distilled
spirits in any container that does not bear a serially numbered
identification stamp issued by the commission or other
identification approved by the commission.
(b) A holder of a local distributor's permit may not
knowingly sell, ship, or deliver distilled spirits in any container
that does not bear a serially numbered identification stamp issued
by the commission or other identification approved by the
commission.
(c) Identification stamps may be issued only to a holder of
a local distributor's permit who shall affix the stamps as
prescribed by the commission or administrator.
Added by Acts 1993, 73rd Leg., ch. 934, § 37, eff. Jan. 1, 1994.
§ 28.16. PERMIT INELIGIBILITY. A mixed beverage permit
may not be issued to:
(1) a person whose permit was canceled for a violation
of Section 28.06(c) of this code;
(2) a person who held an interest in a permit that was
canceled for a violation of Section 28.06(c) of this code;
(3) a person who held 50 percent or more of the stock,
directly or indirectly, of a corporation whose permit was canceled
for a violation of Section 28.06(c) of this code;
(4) a corporation, if a person holding 50 percent or
more of the corporation's stock, directly or indirectly, is
disqualified from obtaining a permit under Subdivision (3) of this
section; or
(5) a person who resides with a person who is barred
from obtaining a permit because of a violation of Section 28.06(c)
of this code.
Added by Acts 1993, 73rd Leg., ch. 934, § 37, eff. Jan. 1, 1994.
§ 28.17. SUMMARY SUSPENSION. (a) The commission may
summarily suspend, without a hearing, the permit of a permittee who
fails to file a return, post the security required by the
comptroller under Section 183.053, Tax Code, or make a tax payment.
The administrative procedure law, Chapter 2001, Government Code,
does not apply to the commission in the enforcement and
administration of this section.
(b) A suspension under this section takes effect on the
third day after the date the notice of suspension is provided.
Notice of suspension shall be sent by registered or certified mail
to the permittee or the permittee's agent, servant, or employee if
not given in person.
(c) The commission shall terminate a suspension made under
this section when the permittee files all required returns, posts
the security required by the comptroller under Section 183.053, Tax
Code, and makes all required tax payments, including payment of
penalties that are due.
Added by Acts 1993, 73rd Leg., ch. 934, § 37, eff. Jan. 1, 1994.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 1001, § 6, eff. Aug. 28, 1995.
§ 28.18. FOOD AND BEVERAGE CERTIFICATE. (a) A holder
of a mixed beverage permit may be issued a food and beverage
certificate by the commission if the gross receipts of mixed
beverages sold by the holder are 50 percent or less of the total
gross receipts from the premises.
(b) An applicant or holder of a food and beverage
certificate shall have food service facilities for the preparation
and service of multiple entrees. The commission shall adopt rules
as necessary to assure that the holder of a food and beverage
certificate maintains food service on the premises for which a food
and beverage certificate has been issued.
(c) The fee for a food and beverage certificate shall be set
at a level sufficient to recover the cost of issuing the certificate
and administering this section.
(d) On receipt of an application for a renewal of a mixed
beverage permit by a holder who also holds a food and beverage
certificate, the commission shall request certification by the
comptroller to determine whether the holder is in compliance with
Subsection (a). In determining compliance with Subsection (a), the
comptroller shall compare the permittee's gross receipts tax
reports with the permittee's sales tax reports for the premises. If
the comptroller does not certify that the holder is in compliance
with Subsection (a), the commission may not renew the certificate.
(e) A certificate expires on the expiration of the primary
mixed beverage permit. A holder of a mixed beverage permit who is
denied renewal of a certificate may not apply for a new certificate
until the day after the first anniversary of the determination of
the comptroller under Subsection (d).
(f) Section 11.11 does not apply to the holder of a food and
beverage certificate.
Added by Acts 1995, 74th Leg., ch. 1060, § 6, eff. Aug. 28, 1995.
Amended by Acts 2001, 77th Leg., ch. 853, § 2, eff. Sept. 1,
2001; Acts 2001, 77th Leg., ch. 1045, § 2, eff. Sept. 1, 2001.
