CHAPTER 28. MIXED BEVERAGE PERMIT - Texas Statutes

ALCOHOLIC BEVERAGE CODE

TITLE 3. LICENSES AND PERMITS

SUBTITLE A. PERMITS

CHAPTER 28. MIXED BEVERAGE PERMIT

Sec. 28.01. AUTHORIZED ACTIVITIES. (a) The holder of a mixed

beverage permit may sell, offer for sale, and possess mixed

beverages, including distilled spirits, for consumption on the

licensed premises:

(1) from sealed containers containing not less than one fluid

ounce nor more than two fluid ounces or of any legal size; and

(2) from unsealed containers.

(b) The holder of a mixed beverage permit for an establishment

in a hotel may deliver mixed beverages, including wine and beer,

to individual rooms of the hotel or to any other location in the

hotel building or grounds, except a parking area or the licensed

premises of another alcoholic beverage establishment, without

regard to whether the place of delivery is part of the licensed

premises. A permittee in a hotel may allow a patron or visitor to

enter or leave the licensed premises, even though the patron or

visitor possesses an alcoholic beverage, if the beverage is in an

open container and appears to be possessed for present

consumption.

(c) The holder of a mixed beverage permit may also:

(1) purchase wine, beer, ale, and malt liquor containing alcohol

of not more than 21 percent by volume in containers of any legal

size from any permittee or licensee authorized to sell those

beverages for resale; and

(2) sell the wine, beer, ale, and malt liquor for consumption on

the licensed premises.

Acts 1977, 65th Leg., p. 429, ch. 194, Sec. 1, eff. Sept. 1,

1977. Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, Sec. 4,

eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 111, ch. 70, Sec. 1,

eff. Aug. 27, 1979.

Sec. 28.02. FEE. (a) The annual state fee for an original

mixed beverage permit is $3,000.

(b) The annual state fee for the first renewal of a mixed

beverage permit is $2,250.

(c) The annual state fee for the second renewal of a mixed

beverage permit is $1,500.

(d) The annual state fee for the third and each subsequent

renewal of a mixed beverage permit is $750.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1,

1977. Amended by Acts 1983, 68th Leg., p. 1346, ch. 278, Sec. 18,

eff. Sept. 1, 1984.

Sec. 28.03. INFORMATION REQUIRED OF APPLICANTS. In addition to

the information required of applicants for permits under this

code, the applicant for a mixed beverage permit must file with

his original and renewal application a sworn statement in a form

prescribed by the commission or administrator containing the

following information:

(1) the name and residential address of the lessor of the

premises;

(2) the name and address of the lessee of the premises;

(3) the amount of monthly rental on the premises and the date of

expiration of the lease;

(4) whether the lease or rental agreement includes furniture and

fixtures;

(5) whether the business is to be operated under a franchise

and, if so, the name and address of the franchisor;

(6) the name and address of the accountant of the business;

(7) a list of all bank accounts, including account numbers, used

in connection with the business; and

(8) any information required by the commission or administrator

relevant to the determination of all persons having a financial

interest of any kind in the granting of the mixed beverage

permit.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.04. CHANGE IN CORPORATE CONTROL. (a) A mixed beverage

permit held by a corporation may not be renewed if the commission

or administrator finds that legal or beneficial ownership of over

50 percent of the stock of the corporation has changed since the

time the original permit was issued.

(b) The commission or administrator may adopt reasonable rules

and regulations in accordance with the provisions of this

section.

(c) A corporation which is barred from renewing a permit because

of this section may file an application for an original permit

and may be issued an original permit if otherwise qualified.

(d) This section does not apply to a change in corporate

control:

(1) brought about by the death of a shareholder if the

shareholder's surviving spouse or descendants are the

shareholder's successors in interest; or

(2) brought about when legal or beneficial ownership of over 50

percent of the stock of the corporation has been transferred:

(A) to a person who possesses the qualifications required of

other applicants for permits and is currently an officer of the

corporation and has been an officer of the corporation ever since

the date the original permit was issued; or

(B) if the permittee notifies the commission, on completed forms

and attachments prescribed by the commission, of the proposed

transfer prior to the date the transfer is to become effective

and the commission does not find that circumstances exist that

would be grounds for the denial of a renewal of the permit under

Section 11.46 and provided the ownership of the corporation

immediately after the transfer satisfies the requirements of this

code.

(e) Nothing in this section shall be construed to grant any

property right to any permit or construed to prevent the

commission from suspending or canceling a permit at any time

after notice and hearing for a violation of this code.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1,

1977. Amended by Acts 1987, 70th Leg., ch. 303, Sec. 6, eff. June

11, 1987; Acts 1989, 71st Leg., 1st C.S., ch. 36, Sec. 3, eff.

Oct. 18, 1989; Acts 1993, 73rd Leg., ch. 934, Sec. 34, eff. Jan.

1, 1994.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

986, Sec. 4, eff. September 1, 2007.

Sec. 28.05. RENEWAL OF PERMIT BY DESCENDANT OR SURVIVING SPOUSE.

If the surviving spouse or surviving descendant of a holder of a

mixed beverage permit qualifies as the successor in interest to

the permit as provided in Section 11.10 of this code, the

descendant or surviving spouse may continue to renew the permit

by paying a renewal fee equal to the fee the permittee would be

required to pay had he lived.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.06. POSSESSION OF ALCOHOLIC BEVERAGE NOT COVERED BY

INVOICE. (a) No holder of a mixed beverage permit, nor any

officer, agent, or employee of a holder, may possess or permit to

be possessed on the premises for which the permit is issued any

alcoholic beverage which is not covered by an invoice from the

supplier from whom the alcoholic beverage was purchased.

(b) A person who violates Subsection (a) of this section commits

a misdemeanor punishable by a fine of not more than $1,000 or by

confinement in the county jail for no more than 30 days or by

both.

(c) No holder of a mixed beverage permit, nor any officer,

agent, or employee of a holder, may knowingly possess or permit

to be possessed on the licensed premises any alcoholic beverage

which is not covered by an invoice from the supplier from whom

the alcoholic beverage was purchased.

(d) A person who violates Subsection (c) of this section commits

a misdemeanor punishable by a fine of not less than $500 nor more

than $1,000 and by confinement in the county jail for not less

than 30 days nor more than two years. The commission or

administrator shall cancel the permit of any permittee found by

the commission or administrator, after notice and hearing, to

have violated or to have been convicted of violating Subsection

(c) of this section.

(e) The commission by rule may allow the holder of a mixed

beverage permit or an officer, agent, or employee of the permit

holder to possess and use alcoholic beverages that are not

covered by an invoice on the permitted premises for cooking

purposes.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

441, Sec. 2, eff. September 1, 2009.

Sec. 28.07. PURCHASE AND TRANSPORTATION OF ALCOHOLIC BEVERAGES.

(a) All distilled spirits sold by a holder of a mixed beverage

permit must be purchased from a holder of a local distributor's

permit in the county in which the premises of a mixed beverage

permittee is located.

(b) If a holder of a mixed beverage permit is in a county where

there are no local distributors, he may purchase alcoholic

beverages in the nearest county where local distributors are

located and may transport them to his premises provided that he

is also a holder of a beverage cartage permit. The transporter

may acquire the alcoholic beverages only on the written order of

the holder of the mixed beverage permit. The alcoholic beverages

must be accompanied by a written statement furnished and signed

by the local distributor showing the name and address of the

consignee and consignor, the origin and destination of the

shipment, and any other information required by the commission or

administrator. The person in charge of the alcoholic beverages

while they are being transported shall exhibit the written

statement to any representative of the commission or any peace

officer on demand, and the statement shall be accepted by the

representative or officer as prima facie evidence of the lawful

right to transport the alcoholic beverages.

(c) If a mixed beverage permittee holds a beverage cartage

permit and his premises are located in a regional airport

governed by a board, commission, or authority composed of members

from two or more counties, and there is no local distributor at

the airport, the mixed beverage permittee may purchase alcoholic

beverages from any local distributor in a trade area served by

the airport and transport them to his licensed premises. The

transportation of the beverages must be in accordance with

Subsection (b) of this section.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1,

1977. Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, Sec. 5,

eff. Sept. 1, 1977; Acts 1993, 73rd Leg., ch. 934, Sec. 35, eff.

Sept. 1, 1993.

Sec. 28.08. REFILLING CONTAINERS PROHIBITED. No holder of a

mixed beverage permit may refill with any substance a container

which contained distilled spirits on which the tax prescribed in

Section 201.03 of this code has been paid.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.081. SUBSTITUTION OF BRAND WITHOUT CONSENT OF CONSUMER

PROHIBITED. (a) The holder of a mixed beverage permit or a

private club permit, or the agent, servant, or employee of a

holder of a mixed beverage permit or private club permit commits

an offense if the holder, agent, servant, or employee substitutes

one brand of alcoholic beverage for a brand that has been

specifically requested by a consumer, unless the consumer is

notified and consents to the substitution.

(b) A holder of a permit who violates Subsection (a) of this

section is liable in a civil suit to a consumer for damages

resulting from the substitution. The court shall award the

prevailing party in an action under this section attorney's fees

and costs of action.

(c) The commission shall provide written notice of the

provisions of this section to an applicant or permittee when

issuing an original or renewal mixed beverage permit or private

club permit on or after October 1, 1993.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 36, eff. Sept. 1,

1993.

Sec. 28.09. INVALIDATION OF STAMP. (a) A holder of a mixed

beverage permit or any person employed by the holder who empties

a bottle containing distilled spirits on which the tax prescribed

in Section 201.03 of this code has been paid, shall immediately

after emptying the bottle invalidate the identification stamp on

the bottle in the manner prescribed by rule or regulation of the

commission or administrator.

(b) Each holder of a mixed beverage permit shall provide at all

service counters where distilled spirits are poured from bottles

the necessary facilities for the invalidation of identification

stamps on bottles so that persons emptying distilled spirits

bottles may immediately invalidate the identification stamps on

them.

(c) If an empty distilled spirits bottle has locked on it an

automatic measuring and dispensing device of a type approved by

the commission or administrator, which prevents the refilling of

the bottle without unlocking the device and removing it from the

bottle, the identification stamp is not required to be

invalidated until immediately after the device has been unlocked

and removed from the bottle.

(d) A holder of a mixed beverage permit or any of his officers,

agents, or employees who is found in possession of an empty

distilled spirits bottle which contained distilled spirits on

which the tax prescribed in Section 201.03 of this code has been

paid and on which the identification stamp has not been

invalidated in accordance with this section commits a separate

offense for each bottle so possessed.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.10. CONSUMPTION RESTRICTED TO PREMISES; EXCEPTIONS. (a)

Except as provided by this section or Section 28.01(b), a mixed

beverage permittee may not sell an alcoholic beverage to another

mixed beverage permittee or to any other person except for

consumption on the seller's licensed premises.

(b) A mixed beverage permittee may not permit any person to take

any alcoholic beverage purchased on the licensed premises from

the premises where sold, except that:

(1) a person who orders wine with food and has a portion of the

open container remaining may remove the open container of wine

from the premises; and

(2) a mixed beverage permittee who also holds a brewpub license

may sell or offer without charge on the premises of the brewpub,

to an ultimate consumer for consumption on or off the premises,

malt liquor, ale, or beer produced by the permittee, in or from a

lawful container in an amount that does not exceed one-half

barrel, provided that the aggregate amount of malt liquor, ale,

and beer removed from the premises under this subdivision does

not exceed 1,000 barrels annually.

(c) A mixed beverage permit holder who holds a food and beverage

certificate may designate as part of the permit holder's premises

a secured noncontiguous area located on a public sidewalk

adjoining the premises if the designation is authorized by city

ordinance. The ordinance may specify and limit the areas of the

municipality in which this subsection is applicable. Alcoholic

beverages may be delivered by an employee of the permit holder to

patrons for consumption in the designated sidewalk area.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1,

1977. Amended by Acts 2001, 77th Leg., ch. 1274, Sec. 1, eff.

Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

409, Sec. 1, eff. June 15, 2007.

Sec. 28.101. PUBLIC CONSUMPTION. (a) This section applies only

to a mixed beverage permit holder whose premises are located in a

municipality that:

(1) has a population of less than 15,000;

(2) is located in a county with a population of less than

65,000; and

(3) contains a historic preservation district that borders a

lake.

(b) Notwithstanding Section 28.10 or any other law, the holder

of a mixed beverage permit whose permitted premises are located

on property owned by a municipality that contains a municipally

owned conference center and that borders a lake may permit a

patron to leave the permitted premises, even though the patron

possesses an alcoholic beverage, if:

(1) the beverage is in an open container and appears to be

possessed for present consumption; and

(2) the public consumption of alcoholic beverages or possession

of an open container of an alcoholic beverage is not prohibited

on the municipally owned property where the permitted premises

are located.

(c) This section does not affect the prohibition against

possessing an open container in a passenger area of a motor

vehicle under Section 49.031, Penal Code.

Added by Acts 2009, 81st Leg., R.S., Ch.

1045, Sec. 1, eff. September 1, 2009.

Sec. 28.11. BREACH OF PEACE. The commission or administrator

may suspend or cancel a mixed beverage permit after giving the

permittee notice and the opportunity to show compliance with all

requirements of law for the retention of the permit if it finds

that a breach of the peace has occurred on the licensed premises

or on premises under the control of the permittee and that the

breach of the peace was not beyond the control of the permittee

and resulted from his improper supervision of persons permitted

to be on the licensed premises or on premises under his control.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.12. SALE OF MALT BEVERAGES TO PERMITTEE. The sale of

malt beverages to a mixed beverage permittee by a local

distributor's permittee or by a licensee authorized to sell them

for resale is subject to the provisions of Section 61.73 of this

code.

Acts 1977, 65th Leg., p. 433, ch. 194, Sec. 1, eff. Sept. 1,

1977.

Sec. 28.13. ISSUANCE OF PERMIT FOR CERTAIN BOATS. (a) A mixed

beverage permit may be issued for a boat if:

(1) the boat:

(A) carries at least 350 passengers;

(B) weighs at least 90 gross tons; and

(C) is at least 80 feet long; and

(2) the home port of the boat is in an area where the sale of

mixed beverages is legal.

(a-1) A mixed beverage permit may be issued for a regularly

scheduled excursion boat that is licensed by the United States

Coast Guard to carry passengers on the navigable waters of the

state if:

(1) the boat:

(A) carries at least 45 passengers;

(B) weighs at least 35 gross tons; and

(C) is at least 55 feet long;

(2) the home port of the boat is in an area where the sale of

mixed beverages is legal; and

(3) the owner or operator of the boat is the sole permit holder

for the boat.

(b) For purposes of Section 11.38 of this code, the home port of

the boat is treated as the location of the licensed premises.

(c) Repealed by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec.

21.05.

(d) A mixed beverage permit may be issued under this section to

a boat regularly used for voyages in international waters

regardless of whether the sale of mixed beverages is lawful in

the area of the home port. A person having authority to deliver

alcoholic beverages to a mixed beverage permit holder in the

county where the licensed premises is located may deliver

alcoholic beverages purchased by the permit holder. Subsections

(a)(2) and (a-1)(2) do not apply to this subsection.

(e) The provisions of Section 109.53 that relate to residency

requirements and compliance with Texas laws of incorporation:

(1) do not apply to the holders of a mixed beverage permit under

Subsection (a); and

(2) do apply to the holder of a mixed beverage permit under

Subsection (a-1).

(f) A permit for an excursion boat issued under Subsection (a-1)

is inoperative in a dry area.

Added by Acts 1985, 69th Leg., ch. 540, Sec. 1, eff. June 12,

1985. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec.

21.02, 21.05, eff. Jan. 11, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

294, Sec. 1, eff. September 1, 2007.

Sec. 28.14. MERGER OR CONSOLIDATION OF CORPORATIONS HOLDING

MIXED BEVERAGE PERMITS. When two or more corporations which have

substantially similar ownership and which hold mixed beverage

permits issued by the commission merge or consolidate and pay to

the commission a $100 fee for each licensed premises, the

surviving corporation shall succeed to all the privileges of such

corporations in the permits held by such corporations provided

the surviving corporation is qualified to hold such permits under

this code. For purposes of this section, two corporations have

substantially similar ownership if 90 percent or more of both

corporations is owned by the same persons.

Added by Acts 1989, 71st Leg., 1st C.S., ch. 36, Sec. 4, eff.

Oct. 18, 1989.

Sec. 28.15. STAMPS. (a) A mixed beverage permittee may not

possess or permit a person to possess on the premises distilled

spirits in any container that does not bear a serially numbered

identification stamp issued by the commission or other

identification approved by the commission.

(b) A holder of a local distributor's permit may not knowingly

sell, ship, or deliver distilled spirits in any container that

does not bear a serially numbered identification stamp issued by

the commission or other identification approved by the

commission.

(c) Identification stamps may be issued only to a holder of a

local distributor's permit who shall affix the stamps as

prescribed by the commission or administrator.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1,

1994.

Sec. 28.16. PERMIT INELIGIBILITY. A mixed beverage permit may

not be issued to:

(1) a person whose permit was canceled for a violation of

Section 28.06(c) of this code;

(2) a person who held an interest in a permit that was canceled

for a violation of Section 28.06(c) of this code;

(3) a person who held 50 percent or more of the stock, directly

or indirectly, of a corporation whose permit was canceled for a

violation of Section 28.06(c) of this code;

(4) a corporation, if a person holding 50 percent or more of the

corporation's stock, directly or indirectly, is disqualified from

obtaining a permit under Subdivision (3) of this section; or

(5) a person who resides with a person who is barred from

obtaining a permit because of a violation of Section 28.06(c) of

this code.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1,

1994.

Sec. 28.17. SUMMARY SUSPENSION. (a) The commission may

summarily suspend, without a hearing, the permit of a permittee

who fails to file a return, post the security required by the

comptroller under Section 183.053, Tax Code, or make a tax

payment. The administrative procedure law, Chapter 2001,

Government Code, does not apply to the commission in the

enforcement and administration of this section.

(b) A suspension under this section takes effect on the third

day after the date the notice of suspension is provided. Notice

of suspension shall be sent by registered or certified mail to

the permittee or the permittee's agent, servant, or employee if

not given in person.

(c) The commission shall terminate a suspension made under this

section when the permittee files all required returns, posts the

security required by the comptroller under Section 183.053, Tax

Code, and makes all required tax payments, including payment of

penalties that are due.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1,

1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),

eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1001, Sec. 6, eff.

Aug. 28, 1995.

Sec. 28.18. FOOD AND BEVERAGE CERTIFICATE. (a) A holder of a

mixed beverage permit may be issued a food and beverage

certificate by the commission if the gross receipts of mixed

beverages sold by the holder are 50 percent or less of the total

gross receipts from the premises.

(b) An applicant or holder of a food and beverage certificate

shall have food service facilities for the preparation and

service of multiple entrees. The commission shall adopt rules as

necessary to assure that the holder of a food and beverage

certificate maintains food service on the premises for which a

food and beverage certificate has been issued.

(c) The fee for a food and beverage certificate shall be set at

a level sufficient to recover the cost of issuing the certificate

and administering this section.

(d) On receipt of an application for a renewal of a mixed

beverage permit by a holder who also holds a food and beverage

certificate, the commission shall request certification by the

comptroller to determine whether the holder is in compliance with

Subsection (a). In determining compliance with Subsection (a),

the comptroller shall compare the permittee's gross receipts tax

reports with the permittee's sales tax reports for the premises.

If the comptroller does not certify that the holder is in

compliance with Subsection (a), the commission may not renew the

certificate.

(e) A certificate expires on the expiration of the primary mixed

beverage permit. A holder of a mixed beverage permit who is

denied renewal of a certificate may not apply for a new

certificate until the day after the first anniversary of the

determination of the comptroller under Subsection (d).

(f) Section 11.11 does not apply to the holder of a food and

beverage certificate.

Added by Acts 1995, 74th Leg., ch. 1060, Sec. 6, eff. Aug. 28,

1995. Amended by Acts 2001, 77th Leg., ch. 853, Sec. 2, eff.

Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1045, Sec. 2, eff. Sept.

1, 2001.