                       Bffice of tfie I?lttornepdikneral
                                    &ate of Ciexae
                                     December 21994

Honorable Rick Perry                            Qpiion No. DM-306
COmmissiona

Texas Department of Agriculture                 Be: Whether there is a gallonage limit on
P.O. Box 12847                                  sales by a winery permit holder under
Austin, Texas 7871 l-2847                       subsection (d), section 16.01 of the
                                                Alcoholic Beverage Code (RQ-583)



       You ask about subsection (d) of section 16.01 of the Alcoholic Beverage Code,
which subsection was added in 1993. Acts 1993, 73d Leg., ch. 934, 5 27 (eff. Sept.
1, 1993). Section 16.01 pertains to authorized activities of holders of winery permits,
Subsection (d) thereof provides:
                 The holder of a winery permit may sell wine to ultimate
           consumers for consumption on or off winery premises and dispense
           t%eewine for consumption on or off the winay premises if the winery
           is located in a city that:
                  (1) is located in three or more counties, at least one of
          which has a population of 500,000 or more; and

                     (2) has within its boundaries all or part of an international
          airport.
         Your specific question is whether the holder of a winery permit acting under sub-
section (d) is “subject to any limitation on the number of gallons of wine that may be sold
annually for either on-premises or off-premises consumption.” Apart from the autho-
rization in subsection (d), winery permit holders’ permitted activities are rather limited.
The only other authority we find for a winery permit holder’s sale of wine directly to
uhimate consumers in this state is in subsection (a)(4) of section 16.01, which provision
restricts such sales to “unbroken packages for off-premises consumption in an amount not
to exceed 25,000 gallons annually.” We note too that subsection (b) of the section-lie
subsection (d), added in 1993--allows a permit holder to “manufacture and label wine for
an adult in an amount not to exceed 50 gallons annually for the persona) use of the adult,”
and further, provides that the “amount of wine produced under this subsection is included
in the annual total amount that may be sold by the holder under Subsection (a)(4).”

       You suggest that the subsection (a)(4) 25,000 gallon annual limit might also be
applied under subsection (d), the provision at issue here, for sales for off-premises
consumption at least. We find no basis for applying the subsection (a)(4) iimit~ to


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subsection (d), especially as the legislature has made express in the case of subsection (b),
quoted snpru, its intent to tie that provision to the subsection (a)(4) gallonage hmitation.
Had the legislature intended to tie subsection (d) to the subsection (a)(4) gallonage limit,
we think it would have done so expressly.

        Nor do we find any other basis in the Alcoholic Beverage Code or other law for a
gallonage limit on subsection (d) sales for either on- or off-pmmises consumption.
Asxmiingly, we conclude that there is none.

                                   SUMMARY

                There is no gallonage limit on sales, for either on- or off-
           premises consumption, by a winery permit holda under subsection
           (d) of section 16.01 of the Alcoholic Beverage Code.




                                                      DAN MORALES
                                                      Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

DREW T. DURHAM
Deputy Attorney Genera) for Criminal Justice

JAVIBRAGIJILAR
Special Assistant Attorney Genera)

RENEAHICRS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Willam M. Walker
Assistant Attorney Genera)




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