ALCOHOLIC BEVERAGE CODE
CHAPTER 37. NONRESIDENT SELLERS PERMIT
§ 37.01. AUTHORIZED ACTIVITIES. The holder of a
nonresident seller's permit may:
(1) solicit and take orders for liquor from permittees
authorized to import liquor into this state;
(2) ship liquor into this state, or cause it to be
shipped into this state, in consummation of sales made to
permittees authorized to import liquor into the state.
Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.02 FEE. The annual state fee for a nonresident
seller's permit is $150.
Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1983, 68th Leg., p. 1348, ch. 278, § 28, eff.
Sept. 1, 1983.
§ 37.03. PERMIT REQUIRED. A nonresident seller's
permit is required of any distillery, winery, importer, broker, or
person who sells liquor to permittees authorized to import liquor
into this state, regardless of whether the sale is consummated
inside or outside the state.
Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.
Validity
This section has been declared unconstitutional by Dickerson v.
Bailey, 336 F.3d 388.
§ 37.04. INTEREST IN BREWER'S PERMIT. A person who
holds a nonresident seller's permit may have an interest in the
business, assets, corporate stock, or permit of a person who holds a
brewer's permit.
Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.05. APPOINTMENT OF AGENT FOR SERVICE OF
NOTICE. (a) No person may be issued a nonresident seller's permit
until he shows that he has filed a certificate with the secretary of
state certifying that he has appointed a resident of this state as
his agent for the purposes of this section. The certificate shall
contain the name, street address, and business of the agent.
(b) A notice of a hearing for the refusal, cancellation, or
suspension of a permit may be served on any of the following:
(1) the agent designated in the certificate on file
with the secretary of state;
(2) any person authorized to sell liquor in this state
as agent of the permittee; or
(3) the permittee or, if the permittee is a
corporation, any officer of the corporation.
(c) If a permittee fails to maintain a designated agent,
notice of a hearing may be served on the secretary of state. In that
case, the secretary of state shall forward the notice to the
permittee by registered mail, return receipt requested, and the
receipt shall be prima facie evidence of service on the permittee.
(d) Provisions of this code generally applicable to
hearings for the refusal, cancellation, or suspension of a permit
also to apply to proceedings relating to the refusal,
cancellation, or suspension of a nonresident seller's permit.
Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.06. DESIGNATION OF AGENTS. Every holder of a
nonresident seller's permit shall designate, in the manner required
by the commission and on forms prescribed by it, those persons
authorized as agents to represent the permittee in this state. The
failure to do so is a violation of this code.
Acts 1977, 65th Leg., p. 446, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.07. PROHIBITED ACTIVITIES. No holder of a
nonresident seller's permit, nor any officer, director, agent, or
employee of the holder, nor any affiliate of the holder, regardless
of whether the affiliation is corporate or by management,
direction, or control, may do any of the following:
(1) hold or have an interest in the permit, business,
assets, or corporate stock of a person authorized to import liquor
into this state for the purpose of resale unless the interest was
acquired on or before January 1, 1941, or unless the permittee is a
Texas corporation holding a manufacturer's license and a brewer's
permit issued before April 1, 1971;
(2) fail to make or file a report with the commission
as required by a rule of the commission;
(3) sell liquor for resale inside this state that
fails to meet the standards of quality, purity, and identity
prescribed by the commission;
(4) advertise any liquor contrary to the laws of this
state or to the rules of the commission, or sell liquor for resale
in this state in violation of advertising or labeling rules of the
commission;
(5) sell liquor for resale inside this state or cause
it to be brought into the state in a size of container prohibited by
this code or by rule of the commission;
(6) solicit or take orders for liquor from a person not
authorized to import liquor into this state for the purpose of
resale;
(7) induce, persuade, or influence, or attempt to
induce, persuade, or influence, a person to violate this code or a
rule of the commission, or conspire with a person to violate this
code or a rule of the commission; or
(8) exercise a privilege granted by a nonresident
seller's permit while an order or suspension against the permit is
in effect.
Acts 1977, 65th Leg., p. 446, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.08. CANCELLATION OR SUSPENSION: NOTICE TO
IMPORTERS. When a nonresident seller's permit is cancelled or
suspended, the commission shall immediately notify in writing all
permittees authorized to import liquor into the state.
Acts 1977, 65th Leg., p. 447, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.09. RESTRICTION ON IMPORTATION. No person who
holds a permit authorizing the importation of liquor, nor his agent
or employee, may purchase or order liquor for importation from any
person other than a nonresident seller's permittee. An importer
may not purchase or order liquor from a nonresident seller's
permittee whose permit is under suspension after the importer has
received notice of the suspension.
Acts 1977, 65th Leg., p. 447, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.10. RESTRICTION AS TO SOURCE OF SUPPLY. (a) No
holder of a nonresident seller's permit may solicit, accept, or
fill an order for distilled spirits or wine from a holder of any
type of wholesaler's permit unless the nonresident seller is the
primary American source of supply for the brand of distilled
spirits or wine that is ordered.
(b) In this section, "primary American source of supply"
means the distiller, the producer, the owner of the commodity at the
time it becomes a marketable product, the bottler, or the exclusive
agent of any of those. To be the "primary American source of
supply" the nonresident seller must be the first source, that is,
the manufacturer or the source closest to the manufacturer, in the
channel of commerce from whom the product can be secured by American
wholesalers.
Acts 1977, 65th Leg., p. 447, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.11. SUBMISSION OF SAMPLES AND LABELS. (a) Before
a nonresident seller's permittee may ship distilled spirits into
this state, he shall furnish the commission samples of each brand,
properly labeled and in the containers in which they are to be sold.
He shall submit with the samples applications for label approval
for each brand.
(b) The commission or its authorized agents shall test the
contents and examine the label and container of the samples and
determine whether they meet all requirements of state law and of the
rules of the commission. If the label, container, and contents are
found to be in compliance, the commission shall issue the permittee
a certificate to that effect.
(c) As to distilled spirits imported directly from the
distiller, bottler, or the exclusive agent of either, or distilled
spirits distilled or bottled by the nonresident seller or by a
distiller or bottler for whom the nonresident seller is the
exclusive agent, if the samples are approved under Subsection (b)
of this section, the permittee is not required to submit additional
samples unless there is a change in the label, contents, or style or
size of the container, or unless he is directed to do so by the
commission.
(d) As to all other distilled spirits, samples must be
furnished to the commission for each brand and size in each proposed
shipment into the state, together with a sworn statement of the
quantity and sizes to be shipped, the permittee to whom the spirits
are to be shipped, and the person or firm from whom they are to be
shipped. The permittee may not ship the distilled spirits until he
has in his possession a certificate of approval from the
commission.
(e) No certificate of approval shall be issued unless the
application is accompanied by a fee in the amount of $25 payable to
the commission. A copy of the certificate shall be kept on file in
the office of the commission.
Acts 1977, 65th Leg., p. 447, ch. 194, § 1, eff. Sept. 1, 1977.
Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, § 7, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 495, § 3, eff. Aug. 31,
1987.
§ 37.12. INSPECTION OF RECORDS, DOCUMENTS,
ETC. (a) In this section, "officer" means a representative of the
commission, the attorney general, or an assistant or representative
of the attorney general.
(b) If an officer wishes to examine the books, accounts,
records, minutes, letters, memoranda, documents, checks,
telegrams, constitution and bylaws, or other records of a
nonresident seller's permittee, he shall make a written request to
the permittee or his duly authorized manager or representative or,
if the permittee is a corporation, to any officer of the
corporation. An officer may examine the records as often as he
considers necessary.
(c) When a request for an examination is made, the person to
whom it is directed shall immediately allow the officer to conduct
the examination, and the person shall answer under oath any
question asked by the officer relating to the records.
(d) The officer may investigate the organization, conduct,
and management of any nonresident seller's permittee and may make
copies of any records which in the officer's judgment may show or
tend to show that the permittee has violated state law or the terms
of his permit.
(e) An officer may not make public any information obtained
under this section except to a law enforcement officer of this state
or in connection with an administrative or judicial proceeding in
which the state or commission is a party concerning the
cancellation or suspension of a nonresident seller's permit, the
collection of taxes due under state law, or the violation of state
law.
(f) The commission shall cancel or suspend a nonresident
seller's permit in accordance with this code if a permittee or his
authorized representative fails or refuses to permit an examination
authorized by this section or to permit the making of copies of any
document as provided by this section, without regard to whether the
document is inside or outside the state, or if the permittee or his
authorized representative fails or refuses to answer a question of
an officer incident to an examination or investigation in progress.
Acts 1977, 65th Leg., p. 448, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.13. SOLICITATION FROM HOLDER OF MIXED BEVERAGE OR
PRIVATE CLUB PERMIT. A holder of a nonresident seller's permit may
not solicit business directly or indirectly from a holder of a mixed
beverage permit or a private club registration permit unless he is
accompanied by the holder of a wholesaler's permit or the
wholesaler's agent.
Acts 1977, 65th Leg., p. 448, ch. 194, § 1, eff. Sept. 1, 1977.
§ 37.14. MONTHLY REPORTS. The commission shall
promulgate rules requiring holders of nonresident seller's permits
to file monthly reports of liquor sold to persons within this state.
The reports shall be supported by copies of invoices. The
commission shall prescribe and furnish forms for this purpose.
Acts 1977, 65th Leg., p. 448, ch. 194, § 1, eff. Sept. 1, 1977.
