Texas Laws - Alcoholic Beverage Code
ALCOHOLIC BEVERAGE CODE
TITLE 4. REGULATORY AND PENAL PROVISIONS

(e) The commissioners court of a county or the governing board of a city or town that has enacted a regulation under Subsection (a) of this section may also allow variances to the regulation if the commissioners court or governing body determines that enforcement of the regulation in a particular instance is not in the best interest of the public, constitutes waste or inefficient use of land or other resources, creates an undue hardship on an applicant for a license or permit, does not serve its intended purpose, is not effective or necessary, or for any other reason the court or governing board, after consideration of the health, safety, and welfare of the public and the equities of the situation, determines is in the best interest of the community. (5419)

(f) Subsections (a)(2) and (3) do not apply to the holder of: (5420)

(1) a retail on-premises consumption permit or license if less than 50 percent of the gross receipts for the premises is from the sale or service of alcoholic beverages; (5421)

(2) a retail off-premises consumption permit or license if less than 50 percent of the gross receipts for the premises, excluding the sale of items subject to the motor fuels tax, is from the sale or service of alcoholic beverages; or (5422)

(3) a wholesaler's, distributor's, brewer's, distiller's and rectifier's, winery, wine bottler's or manufacturer's permit or license, or any other license or permit held by a wholesaler or manufacturer as those words are ordinarily used and understood in Chapter 102. (5423)

(g) Subsection (a)(3) does not apply to the holder of: (5424)

(1) a license or permit issued under Chapter 27, 31, or 72 who is operating on the premises of a private school; or (5425)

(2) a license or permit covering a premise where minors are prohibited from entering under Section 109.53 and that is located within 1,000 feet of a private school. (5426)

(h) Subsection (a)(1) does not apply to the holder of: (5427)

(1) a license or permit who also holds a food and beverage certificate covering a premise that is located within 300 feet of a private school; or (5428)

(2) a license or permit covering a premise where minors are prohibited from entering under Section 109.53 and that is located within 300 feet of a private school. (5429)

(i) In this section, "private school" means a private school, including a parochial school, that: (5430)

(1) offers a course of instruction for students in one or more grades from kindergarten through grade 12; and (5431)

(2) has more than 100 students enrolled and attending courses at a single location. (5432)

Acts 1977, 65th Leg., p. 526, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 4038, ch. 629, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 260, Sec. 7, eff. May 30, 1995; Acts 2001, 77th Leg., ch. 388, Sec. 2, eff. May 28, 2001. (5433)

Sec. 109.331. SALES NEAR DAY-CARE CENTER OR CHILD-CARE FACILITY. (5434)(1-click HTML)

(a) This section applies only to a permit or license holder under Chapter 25, 28, 32, 69, or 74 who does not hold a food and beverage certificate. (5435)

(b) Except as provided by this subsection, the provisions of Section 109.33 relating to a public school also apply to a day-care center and a child-care facility as those terms are defined by Section 42.002, Human Resources Code. Sections 109.33(a)(2) and (c) do not apply to a day-care center or child-care facility. (5436)

(c) This section does not apply to a permit or license holder who sells alcoholic beverages if: (5437)

(1) the permit or license holder and the day-care center or child-care facility are located on different stories of a multistory building; or (5438)

(2) the permit or license holder and the day-care center or child-care facility are located in separate buildings and either the permit or license holder or the day-care center or child-care facility is located on the second story or higher of a multistory building. (5439)

(d) This section does not apply to a family home, specialized child-care home, or agency foster home as those terms are defined by Section 42.002, Human Resources Code. (5440)

Added by Acts 1997, 75th Leg., ch. 723, Sec. 1, eff. Sept. 1, 1997. (5441)

Amended by: (5442)

Acts 2017, 85th Leg., R.S., Ch. 317 (H.B. 7), Sec. 1, eff. September 1, 2017. (5443)

Sec. 109.35. ORDERS FOR PROHIBITION ON CONSUMPTION. (5444)(1-click HTML)

(a) If the governing body of a municipality determines that the possession of an open container or the public consumption of alcoholic beverages in the central business district of the municipality is a risk to the health and safety of the citizens of the municipality, the governing body may by charter or ordinance prohibit the possession of an open container or the public consumption of alcoholic beverages in that central business district. (5445)

(b) If a municipality prohibits the possession of an open container or the public consumption of alcoholic beverages in the central business district of the city, the municipality must adopt a map, plat, or diagram showing the central business district that is covered by the prohibition. (5446)

(c) The municipality's charter or ordinance may not prohibit the possession of an open container or the consumption of alcoholic beverages in motor vehicles, buildings not owned or controlled by the municipality, residential structures, or licensed premises located in the area of prohibition. (5447)

(c-1) In accordance with Section 1.06, this section does not authorize municipal regulation of the possession of an open container or the public consumption of alcoholic beverages except as expressly provided by this section. (5448)

(d) In this section, "central business district" means a compact and contiguous geographical area of a municipality in which at least 90 percent of the land is used or zoned for commercial purposes and that is the area that has historically been the primary location in the municipality where business has been transacted. (5449)

(e) In this section, "open container" means a container that is no longer sealed. (5450)

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 89, eff. Sept. 1, 1993. (5451)

Amended by: (5452)

Acts 2015, 84th Leg., R.S., Ch. 555 (H.B. 2296), Sec. 1, eff. September 1, 2015. (5453)

Sec. 109.36. CONSUMPTION OF ALCOHOLIC BEVERAGES NEAR HOMELESS SHELTER OR SUBSTANCE ABUSE TREATMENT CENTER. (5454)(1-click HTML)

(a) In this section: (5455)

(1) "Central business district" means a compact and contiguous geographical area of a municipality used for commercial purposes that has historically been the primary location in the municipality where business has been transacted. (5456)

(2) "Homeless shelter" means a supervised publicly or privately operated shelter or other facility that is designed to provide temporary living accommodations to individuals who lack a fixed regular and adequate residence. (5457)

(3) "Open container" has the meaning assigned by Section 109.35. (5458)

(b) The commissioners court of a county may enact regulations applicable in areas in the county outside an incorporated city or town, and the governing board of an incorporated city or town may enact regulations applicable in the city or town, prohibiting the possession of an open container or the consumption of an alcoholic beverage on a public street, public alley, or public sidewalk within 1,000 feet of the property line of a homeless shelter that is not located in a central business district or a substance abuse treatment center that is not located in a central business district. (5459)

(c) If the commissioners court of a county or the governing board of an incorporated city or town enacts a prohibition under Subsection (b), the commissioners court or the governing board may enact regulations allowing special temporary events for which Subsection (b) may be suspended. (5460)

Added by Acts 2007, 80th Leg., R.S., Ch. 988 (S.B. 1238), Sec. 1, eff. September 1, 2007. (5461)

SUBCHAPTER D. OTHER MISCELLANEOUS PROVISIONS (5462)(1-click HTML)
Sec. 109.51. SACRAMENTAL WINE. (5463)(1-click HTML)

Nothing in this code limits the right of a minister, priest, rabbi, or religious organization from obtaining sacramental wine for sacramental purposes only, directly from any lawful source inside or outside the state. No fee or tax may be directly or indirectly charged for the exercise of this right. The commission by rule and regulation may regulate the importation of sacramental wine and prevent unlawful use of the right granted by this section. (5464)

Acts 1977, 65th Leg., p. 526, ch. 194, Sec. 1, eff. Sept. 1, 1977. (5465)

Sec. 109.52. WAREHOUSE RECEIPTS. (5466)(1-click HTML)

A bank, trust company, or other financial institution that owns or possesses warehouse receipts for alcoholic beverages as security for a loan, after receiving permission from the commission or administrator, may sell the beverages to a licensee or permittee authorized to purchase them. (5467)

Acts 1977, 65th Leg., p. 526, ch. 194, Sec. 1, eff. Sept. 1, 1977. (5468)

Sec. 109.53. CITIZENSHIP OF PERMITTEE; CONTROL OF PREMISES; SUBTERFUGE OWNERSHIP; ETC. (5469)(1-click HTML)

No person who has not been a citizen of Texas for a period of one year immediately preceding the filing of his application therefor shall be eligible to receive a permit under this code. No permit except a brewer's permit, and such other licenses and permits as are necessary to the operation of a brewer's permit, shall be issued to a corporation unless the same be incorporated under the laws of the state and unless at least 51 percent of the stock of the corporation is owned at all times by citizens who have resided within the state for a period of one year and who possess the qualifications required of other applicants for permits; provided, however, that the restrictions contained in the preceding clause shall not apply to domestic or foreign corporations that were engaged in the legal alcoholic beverage business in this state under charter or permit prior to August 24, 1935. Partnerships, firms, and associations applying for permits shall be composed wholly of citizens possessing the qualifications above enumerated. Any corporation (except carrier) holding a permit under this code which shall violate any provisions hereof, or any rule or regulation promulgated hereunder, shall be subject to forfeiture of its charter and it shall be the duty of the attorney general, when any such violation is called to his attention, to file a suit for such cancellation in a district court of Travis County. Such provisions of this section as require Texas citizenship or require incorporation in Texas shall not apply to the holders of agent's, industrial, and carrier's permits. No person shall sell, warehouse, store or solicit orders for any liquor in any wet area without first having procured a permit of the class required for such privilege, or consent to the use of or allow his permit to be displayed by or used by any person other than the one to whom the permit was issued. It is the intent of the legislature to prevent subterfuge ownership of or unlawful use of a permit or the premises covered by such permit; and all provisions of this code shall be liberally construed to carry out this intent, and it shall be the duty of the commission or the administrator to provide strict adherence to the general policy of preventing subterfuge ownership and related practices hereinafter declared to constitute unlawful trade practices. No applicant for a package store permit or a renewal thereof shall have authority to designate as "premise" and the commission or administrator shall not approve a lesser area than that specifically defined as "premise" in Section 11.49(a) of this code. Every permittee shall have and maintain exclusive occupancy and control of the entire licensed premises in every phase of the storage, distribution, possession, and transportation and sale of all alcoholic beverages purchased, stored or sold on the licensed premises. Any device, scheme or plan which surrenders control of the employees, premises or business of the permittee to persons other than the permittee shall be unlawful. No minor, unless accompanied by his or her parent, guardian, adult husband or adult wife, or other adult person into whose custody he or she has been committed for the time by some court, shall knowingly be allowed on the premises of the holder of a package store permit. The prohibition against the presence of a minor on the premises of the holder of a package store permit does not apply to the presence on the premises of the holder or a person lawfully employed by the holder. Any package store permittee who shall be injured in his business or property by another package store permittee by reason of anything prohibited in this section may institute suit in any district court in the county wherein the violation is alleged to have occurred to require enforcement by injunctive procedures and/or to recover threefold the damages by him sustained; plus costs of suit including a reasonable attorney's fee. The provisions prohibiting the licensing of only a portion of a building as premise for a package store permit shall not apply to hotels as already defined in this code. (5470)

Acts 1977, 65th Leg., p. 526, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 258, ch. 107, Sec. 15, eff. Sept. 1, 1981; Acts 1985, 69th Leg., ch. 285, Sec. 13, eff. Sept. 1, 1986; Acts 1985, 69th Leg., ch. 462, Sec. 14, eff. Sept. 1, 1986; Acts 1993, 73rd Leg., ch. 934, Sec. 90, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 191, Sec. 2, eff. Sept. 1, 2001. (5471)

  

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