Honorable Robert S. Calvert          Opinion   Nz. W-752
Comptroller  of Public Accounts
Capitol Station                      Re:   Whether the Comptroller
Austin, Texas                              can legally    issue warrant
                                           in payment of claim of a
                                           beer distributing    company
                                           covering refund of excise
                                           tax on beer sold to mili-
                                           tary installations    In
Dear Mr- Calvert:                          Texas.

     By letter   dated September 3, 1959,      you state:

             ‘II ,am enclosing for your consideration
          and approval claim of Pearl Beer Distri-
          buting Company, 400 Nueces Street,       Austin,
          Texas, for $126.19 covering refund of excise
          tax on beer sold to military     installations
          in Texas.
             “This department recommended that appro-
          priatlon    be made to pay this clalm.by.the
          Fifty-sixth    Legislature    ins order not to
          deny the claimant his rights,         If In fact
          the claim could legally       be paid.    It is my
          understanding that your approval and the
          approval of the State Auditor was made to the
          Legislature    on the same condition.       I am
          therefore    submitting    the entire file covering
          this claim and ask that you examine same and
          advise me whether or not I can legally           issue
          warrant in payment of the claim.”
      The file above referred   to reflects that the Pearl Beer
Distributing   Company of Austin, Texas, Is- seeking refund of
taxes paid on beer sold to Bergstrom Air Force Base.1      If such a
I-
  The Pearl Beer Distributing   Company holds a beer distributor’s
license   issued pursuant to the Texas Liquor Control Act.      (Article
%-1     et seq., Tex.Pen.Code).   It is the exclusive distributing
agent of the Pearl Brewing Company of San Antonio, Texas.        The
beer here involved was purchased by Pearl Beer Distributing
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                            Honorable Robert   S. Calvert,    Page 2     Opinion   No. WW-752


                            refund Is to be legally made, the claimant must bring
                            himself within the terms of Article 667-23f (d), Tex.Pen.
                            Code, which reads:
                                         “It is not intended that the tax levied
                                      in Section 23 of Article       2 of the Texas
                                      Liquor Control Act shall be colkcted          on
                                      beer shipped out of this State for Ton-
                                      sumption outside this State or on beer
                                      shipped to an installation       of the National
                                      Military    Establishment,    wherein the State
                                      of Texas has ceded police jurisdiction,
                                      for consumption’by     military personnel.,wlth-
                                      in said installation,       and the board shail
                                      provide forms on which distributors        and
                                      manufacturers may claim and obtain exemption
                                      from the tax on such beer.        If any dis-
                                      tributor     or manufacturer has paid that tax
                                      on any beer and thereafter       said beer is
                                      shipped out of the state for consumption
                                      outside this State or is shipped into any
                                      installation     of the National Military     Estab-
                                      lishment as referred       to above, for consump-
                                      tion by military     personnel therein,    a claim
                                      for refund may be. made at the time and in
                                      the manner prescribed       by the Board or Ad-
                                      ministrator.      So much of any funds derived
                                      hereunder as may be necessary,       not to exceed
                                      two per cent (2%) thereof,       is hereby appro-
                                      priated for such purpose.        The Board may
                                      promulgate rules and regulations        generally
                                      for the enforcement of this provision.”
                                   In reference to the foregoing section, Attorney           General’s
                             Opinion No. W-354 (January 31, 1958) states:
                                               .According to the terms of the Texas
                                      Liquor   Control Act above quoted, the tax on

                            1 (Cont.)
                             Company from the latter   company; the first  taxable sale as
                            defined by the Texas Liquor Control Act occurred upon such
                            purchase and the tax was paid at that time.     Consequently,   there
                            is no question of a first   taxable sale or importation   being
                            made to or by a military   establishment  or Federal instru-
                            mentality,   and Attorney General’s Opinion Na. kpd-598 has no
                            application.
fonorable    Robert   S. Calvert,     Page 3       Opinion No. WI-752



            beer is not to be collected,             (or if collected,
            refund)is      to be made where the beer involved
            is:     (1)    'shipped to any installation           of the
            National Military         Establishment'       (2)     'wherein
            the State of Texas has ceded police                Jurisdiction',
            and is (3)        'for consumption of military           per-
            sonnel within said installation'.                Sec. 23+(d),
            Art. 667, V.P.C.          This is an exem;tion provision
            and the distributor         or manufacturer claiming such
            exemption must bring himself clearly                within the
            provisions.        Attorney General's        Opinion O-7174
               1940).    Even assuming that requisites             (1) and
            t  3) are   true,    your  question     concerns    Installa-
            tions where police         jurisdiction      has not been
            ceded to the Federal Government. Therefore,
            it is our opinion that a refund or exemption,
            as the case may be, cannot be allowed in the
            situation      described    In your third question because
            requisite      (2) has not been met."
       By letter   dated October 23, 1959, the Secretary of State
advises that a search of the records of his office            discloses
that there is no instrument on file       by which the Governor of
Texas has ceded to the United States police         jurisdiction      over
the land in Travis County upon which Bergstrom Air Force Base
Is situated.      Consequently,   In line with the authority        of the
Attorney General's      0 inion quoted above, and the clear purport
of Article    667-23+(d P , you are advised that the Pearl Beer
Distributing     Company is not entitled    to a refund of the taxes
Involved.     The State is not legally    liable  for the return of
such taxes; therefore,       a warrant in payment of the claim may
not be issued.



                                SUMMARY

           The Comptroller    of Public Accounts cannot
      legally    issue a warrant In payment of a claim
      for refund of taxes paid on beer subsequently
      sold to a military     installation over which police
      jurisdiction     has not been ceded by the State of
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                         Hon. Robert   S. Calvert,   Page 4     Opinion   No. WW-752


                                Texas to the United States    Government.
                                                        Yours very truly,

                                                        WILL WILSON
                                                        Attorney General    of Texas



                                                        BY


                          JNP:cm
                          APPROVED:

                          OPINION COMMITTEE:
                          W. V. Geppert, Chairman

                          C. Dean Davis
                          Marietta Payne
                          W. Ray Scruggs

                          REVIEWEDFOR THE ATTORNEY
                                                 GENERAL

                          By:   Leonard Passmore
