Aw-rOHNE:Y      DENER*L

                                     April 17, 1968

             Honorable 0. N. Humphreys, Jr.       Opinion No. M-218
             Acting Administrator
             Texas Liquor Control Board           Re:   May beer be legally
             Capitol Station                            possessed by an employee
             Austin, Texas 78711                        of a beer retailer on the
                                                        latter's licensed premises
                                                        in a 2 5/8 gallon con-
                                                        tainer bearing the beer
                                                        brand name and which has
                                                        been filled from a tax
                                                        paid legal-sized l/2 bar-
                                                        rel of beer purchased by
                                                        the beer retailer from a
             Dear Mr. Humphreys:                        beer distributor.

                  The letter from your department requesting an opinion of
             this office reads, in part, as follows:

                     "There has been created a beverage serving
                  apparatus which would contain 2 5/E gallons of
                  draft beer when full. It is filled by receiving
                  a sanitary transfer of draft beer from a legal-
                  sized, tax-paid l/2 barrel of draft beer. It
                  contains equipment to keep the beer cold. It
                  may be strapped on the back of a person and has
                  an outlet hose for dispensing beer into a paper
                  cup which may be delivered to the consumer.   The
                  brand name of the beer may be placed on the ap-
                  paratus.

                     "The manufacturer of this apparatus contends
                  that it would provide a beer, retailer with a
                  method of serving beer to huge crowds such as
                  appear at the Astrodome in a sanitary and safe
                  manner. . . .

                     "It does appear to us that the apparatus would
                  facilitate the serving of cold draft beer in a
                  safe and sanitary manner to a large crowd - -
                  particularly so since only paper cups which are
                  not harmful when thrown or dropped would be used.


                                       - 1044-
Honorable 0. N. Humphreys, Jr., Page 2 (M-218)



       "However, we wonder whether this apparatus
    may be used for dispensing beer by a beer re-
    tailer under the terms of the Texas Liquor Con-
    trol Act.

       "The term 'container' as used in Article II
    of the Texas Liquor Control Act is defined in
    Section 1, (d) of Article II of the Texas Liquor
    Control Act (Article 667-1, (d) of Vernon's Texas
    Penal Code) as follows:

            "'The term "container" means any
            container holding beer in quantities
            of one (1) barrel, one-half (l/2)
            barrel, one-quarter (l/4) barrel,
            one-eighth (l/8) barrel, or any bot-
            tle or can having a capacity of twelve
            (12) fluid ounces, twenty-four (24)
            fluid ounces, and thirty-two (32)
            fluid ounces, and no container of any
            other capacity shall be authorized.'

       "In Section 8 of Article II of the Texas
    Liquor Control Act (Article 667-8 of Vernon's
    Texas Penal Code) it is provided as follows:

            "'It shall be unlawful for any person
            to sell, store, possess, or transport
            in this State, any beer unless it be
            in a container as defined in Section 1
            of this Article, and every such con-
            tainer shall bear a brand, imprint, or
            label showing the full name and address
            of the brewer or manufacturer of such
            beer, or the name and address of any
            distributor for whom a special brand
            is manufactured; and in the event such
            beer is sold or transported in con-
            tainers packed in any box, crate, carton,
            or similar device, the same information
            shall appear upon the outside of such
            package.'

       "In Section 3, (e) of Article II of the Texas
    Liquor Control Act (Article 667-3, (e) of Vernon's
    Texas Penal Code) it is provided as follows:   (the
    underlining is ours)


                          - 1045-
Honorable 0. N. Humphreys, Jr., Page. 3 (M-218)



             "'A Retail Dealer's On-Premise
             License shall authorize the holder
             thereof to sell beer for consump-
             tion on or off the premises where
             sold, in or from any lawful con-
             tainer to the ultimate consumer,
             but not for resale. . . .'

        "In Section 24, (2) of Article II of the
     Texas Liquor Control Act (Article 667-24   (,2)
     of Vernon's Texas Penal Code) it is provided
     as follows:   (the underlining is ours)

             "'It shall be unlawful for any re-
             tail dealer to dispense any draught
             beer unless each faucet or other
             dispensing apparatus is equipped with
             a sign clearly indicating the name or
             brand of the particular product being
             at the time dispensed through each
             faucet or other ..+sg&;ydsg
                              a
             shall be in legib e
             full sight of the purchaser.'

        "As far as we know the above provisions of
     law are the only provisions relevant to our ques-
     tion.



        "This is our question: May beer be legally
     possessed by an employee of a beer retailer on
     the licensed premises of such beer retailer in
     a 2 5/E gallon container which bears the brand
     name of the beer and which has been filled from
     a tax-paid, legal-sized l/2 barrel of beer pur-
     chased by the beer retailer from a beer distri-
     butor?  If so, may such beer be served and sold
     from such 2 5/8 gallon container to customers
     on the licensed premises?"

     The Texas Liquor Control Act is to be liberally construed
to accomplish the express and implicit intent of the Legislature,
i.e., the "exercise of the police power of the State for the pro-
tection of the welfare, health, peace, temperance and safety of
the people of the State." Vernon's Penal Code, Article,666-2;
Texas Liquor Control Board v. Floyd, 117 S.W.Zd 530 '(Tex.Civ.App:
1938, no writ); Texas Liquor ControlBoard  v. 'Super Saving Stamps
Company, 303 S.W.Zd 536 (Tex.Civ.App. 1957, no writ).
                            - 1046 -
Honorable 0. N. Humphreys, Jr., Page 4 (M-218)



     It is the opinion of this office that Article II, Section
1, (d) of the Texas Liquor Control Act was passed to standardize
the containers in which beer could be merchandised and sold by
the brewery to the retail outlet. This standardization provides
a method whereby the tax that is to be levied on the beer and the
appropriate standardized tax stamp may be affixed upon the con-
tainer when a first sale is made within this State. The legis-
lative intent appears to be to regulate the containers that may
be sold, stored, passed or transported by the brewery or whole-
saler of beer. We find no legislative intent to prohibit a Retail
Dealer's On-Premise licensee from using an ~apparatus such as you
describe to assist him as an intermediate step in dispensing and
serving beer from a legal container purchased from the distributor.

     Therefore, it is the opinion of this office that beer may
be legally possessed for the purpose of dispensing by an employee
of a Retail Dealer's On-Premise licensee on the licensed premises
of the licensee in a 2 5/8 gallon container which bears the
brand name of the beer and which has been filled on the licensed
premises by the licensee or his agent from a tax-paid, legal-
sized container of beer purchased by the licensee from a beer
distributor.   It is the'further opinion of this office that such
beer may be served and sold by the Retail Dealer's On-Premise li-
censee or his agent from the 2 S/8 gallon container to customers
on the licensed premises under the aforesaid circumstances.

                         SUMMARY~.

           Beer may be legally possessed forthe purpose
        of dispensing by an employee of a Retail Dealer's
        On-Premise Licensee on the licensed premises of the
        licensee in a 2 5/E gallon container which bears
        the brand name of the beer and which has been
        filled on the licensed premises by the licensee
        or his agent from a tax-paid, legal-sized~l/2 barrel
        of beer purchased by the licensee from a beer dis-
        tributor.  Beer may be served and sold by the Re-
        tail Dealer's On-Premise licensee or his agent from
        the 2 5/E gallon container to customers on the li-
        tensed premises.

                                     truly yours,




                                           neral,of:Tsxas
Honorable 0. N. Humphreys, Jr., Page 5 (M-218)



Prepared by Douglas H. Chilton
Assistant Attorney General

DHC/dt


APPROVED:

OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Monroe Clayton
Harold Kennedy
Pat Bailey

A. J. CARUBBI, JR.
Executive Assistant




                            -   1048 -
