MP. Coke R. Stevenson,Jr.    Opinion No. WW-816
Administrator
Texas Liquor Control Board   Re: Whether or not Art. 667,
Austin. Texas                    Section 23;(d) of the Penal
                                 Code permits the tax on
                                 beer to be refunded when
                                 such beer is sold to an
                                 Individualwho has a contract
                                 with a National Military
                                 Establishmentto operate a
                                 concessionwithin the enclosures
Dear Mr. Stevenson:              of such establishment?
    We quote from your opinion request as follows:

          "Article 667, Section 23*(d), of the
        Penal Code of Texas, provides, to-wit:
         "'It is not Intended that the tax
        levied in Section 23 of Article II of
        the Texas Liquor Control Act shall be
        collected on beer shipped out of this State
        for consumptionoutside this State, or
        sold aboard ships for ship's supplies, OP
        on beer shipped to any installationof the
        National Military Establishment,wherein
        the State of Texas has ceded police jurls-
        diction, for consumptionby military
        personnel within said Installation,and the
        Board shall provide forms on which Distrib-
        utors and Manufacturersmay claim and obtain
        exemption from the tax on such beer. If
        any Distributoror Manufacturerhas paid the
        tax on any beer and thereafter said beer is
        shipped out of this State, for consumption
        outside this State, OP sold aboard ships for
        ship's supplies, OP is shipped Into any
        Installationof the,NationalMilitary Estab-
        lishment as referred to above, for consumption
        by military personnel therein, a claim for
        refund may be made at the time and in the
        manner prescribed by the Board or Administrator.
        So much of any funds derived hereunder as ma
        be necessary, not to exceed two per cent (2$3
MP. Coke R. Stevenson, Jr., Page 2    Opinion No. WW-816


        thereof, Is hereby appropriatedfor such
        purpose. The Board may promulgate rules
        and regulationsgenerally for the enforce-
        ment of this provision.'
          "This Department interpretedthe above
        to mean that if the beer Is sold to,
        Invoiced to, or shipped to, and paid for
        by an installationof the National Military
        Establishment,where police jurisdiction
        has been ceded by the State, that the State
        tax exemption should be allowed. On the other
        hand, if this merchandise is shipped to,
        invoiced to, OP paid for by a civilian con-
        cessionairewho is operating for individual
        profit that the State tax exemption should -
                                                   not
        be allowed.
          "The situation in question Is where a
        concessionairewho is a civilian and is not
        a memeber of any branch of the Armed Services
        of the United States has been granted a con-
        cession to operate a snack bar in a National
        Military Establishmentwhere police jurisdiction
        has been ceded by the State, The beer is served
        at this snack bar located in a bowling alley.
        The bowling alley is located within the area
        of the National MlLltapy Establishment. The
        concessionagreement provides that the con-
        cessionaireshall not sell the products,
        services.,and merchandise of the concession
        to any person except those authorized to be
        present in and utilize the facilitiesof the
        bowling alley in accordancewith applicable
        military regulationsor directivesnow in
        effect,
           "In order to answer inquiries concerning
         the sale of tax free beer to an individualwho
         holds a concession in a National Military
         Establishment,we respectfullyrequest your
         opinion as to the following questions:
           "1o Whether OP not Article 667, 23*(d), of
         the Penal Code permits the tax on beer to be
         refunded when such beer Is sold to an individual
         who has a contract with a Rational Military
         Establishmentto operate a concessionwithin
         the enclosures of such establfshment?
Mr, Coke R. Stevenson,Jr., Page 3    Opinion No. WW-816
                            c"

          "2. Or, is the criterion for tax exemption
        not whether the purchaser of the beer is a
        civilian, but, rather, whether or not the
        State of Texas has any jurisdictionover the
        place where the beer is ultimately sold?
          "These questions are not the subject of
        any pending litigationand your opinion is
        necessary in order that we may properly advise
        a concessionaireoperating on a Rational
        Military Establisbmentwhere the State of
        Texas has ceded police jurisdiction."
     A careful examinationof the terms of Art..667, Sec. 2&
(d), Tex.Pen.Code,reveals no basis for your departmental
interpretation. It is not required that the beer be sold to
a military Installation,but only that it be shipped tothe
installationfor consumptiontherein by military personnel.
This proposition is clarified somewhat by reference to the
second sentence of the questioned article, which states, in
part:
          "If any Distributor or Manufacturerhas
        paid the tax on any beer and thereafter said
        beer. D .is shipped &&   any installation.. .
        a claim for refund may be made."
     As pointed out by Attorney General's Opinion No. W-354,
three requirementsmust be met before refunds may be made in
cases of this nature:
     1. The beer must be shipped Into an installationof the
National Military Establishment;
     2. police jurisdictionever the Installationin question
must have been ceded by the State of Texas; and
     3. the beer must be intended forconsumption by
military personnel within the Installation.
     According to the facts set forth in your letter, all three
requirementshave been met, Accordingly,refund should be made.
                    SUMMARY
           Under the terms of Article 667, Section 234
     (d), Tex.Pen.Code,the Texas Liquor Control
     Board should make refund of taxes paid on beer
     shipped to a civilian concessionairewithin a
Mr.   Coke R. Stevenson,Jr., Page 4   Opinion No. WW-816


      military installationwherein police
      jurisdictionhas been ceded where such beer
      is intended for consumptionby military
      personnel within the installation.
                            Yours very truly,
                            WILL WILSON
                            Attorney General of Texas




JNP:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
William T. Blackburn
John Lawrence Hargrove
Robert A. Rowland
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
