Attorney General Opinion WW-0615

EA~ORNEY GENERAL OFTEXAS Hon. Coke R. Stevenson, Jr. Opinion No. WbJ-615 Administrator Texas Liquor Control Board Re: Whether the Texas Lfauor P.O. Box-56 Austin 61, Texas Dear Mr. Stevenson: Control Board has the authority to cancel or suspend, after due hear- ing, the label approval provided for in Section 28 of Article 667 of the Penal Code of Texas, upon finding that an out-of- state beer manufacturer has violated any provi- sions of the Texas Liquor Control Act whether such applies to the label or not? You have asked our opinion on the following question: Whether the Texas Liquor Control Board has the authority to can- cel OP suspend, after due hearing, the label approval provided for in Section 28 of Article 667 of the Penal Code of Texas, upon finding that an out-of-state beer manufacturer has vlo- lated any provisions of the Texas Liquor Control Act (Articles 666 and 667 et seq., Vernon's Penal Code) whether such viola- tion applies to the label or not? You have advised that the procedure followed in the granting of a label approval is as follows: The applicant files an application with the Board on the form CAP-111 and if the Board determines that the label should be approved It then grants to the applicant a "Certificate of Approval of Labels of Malt Beverages Domestically Bottled or Packed." This certificate is given over your signature on form CAP-117. Examination of the Texas Liquor Control Act reveals that the Legislature has not provided for a manufacturer's license for an out-of-state beer manufacturer. Hon. Coke R. Stevenson, Jr., page 2 (w-615) The approval or disapproval of a label is governed by the provisions of Sec. 28, Art. 667, V.P.C., which reads as follows: "It shall be unlawful for any person to ship or cause to be shipped into this State, or to im- port into this State, or to manufacture and then offer for sale within this State, or to distribute, sell, or store within the State any beer, ale or .malt liquor unless and until a sample of such beer, ale, or malt liquor, or a sample of the same type and quality of beer, ale, and malt liquor, has been submitted to the Texas Liquor Control Board for the purpose of analysis, and has been found by the Texas Liq.uor Control Board or its repre- sentatives to be in compliance with all rules and regulations of the Board relating to quality, purity, and standards of measure, "It shall also be unlawful for any person to import any beer, ale, or malt liquor Into this State, or to manufacture and then offer for sale within this State, or to distribute, sell, or store within this State any beer, ale, or malt liquors unless and until the label thereof has been submitted to the Texas Liquor Control Board or its authorized representatives and such label has been approved by the Texas Liquor Control Board or its authorized representatives as being in compliance with all rules or regulations of the Texas Liquor Control Board or any provisions of the Actrelating to the labeling of beer, ale, or malt liquor. A,ny beer, ale, or malt liquor so imported into this State, or manufactured and then offered for sale within this State, in vio- lation of this Section shall be an illicit bev- erage. Provided, however, that all labels bear- ing the same wording or design as labels attached to any beer manufactured In or imported into this State during the period between January 1, 1949, and June 1, 1949, are hereby approved, and no fur- ther approval shall be needed by the Manufacturers or Distributors of such brands of beer unless said Manufacturers or Distributors desire to change the wording or design of such labels." Sec. 28, supra, does not provide for the cancellation or suspension of a label approval. Hon. Coke R. Stevenson, Jr., page 3 (~~-615) Other provisions of the Act reveal that the Texas Liquor Control Board is given broad ,general powers. The entire Act constitutes an exercise of the police power'of the State for the protection and the welfare, health, peace, temperance and safety of the people of the State, and all its provisions should be liberally construed for the accompllsh- ment of that purpose. Art. 666-2, V.P.C. The Act In Article 666-6, V.P.C., sets forth the gen- eral authority of the Texas Liquor Control Board as follows: "Among others, the functions, powers, and duties of the Board shall include the following: "(a) To supervise, inspect, and regulate every phase of the business of manufacturing, Importation, exportation, transportation, stor- age, sale, distribution, possession for the pur- pose of sale, and possession of all alcoholic beverages, Including the advertising and label- ing thereof, In all respects necessary to ac- complish the purposes of this Act. The Board Is hereby vested with power and authority to prescribe all necessary rules and regulations to that end; to require the filing of such reports and other data by all persons engaged In any phase of the alcoholic beverage business, which it may deem necessary to accomplish the purposes of this Act; to supervise and regulate all licensees and permittees and their places of business In all matters affecting the general public, whether herein specifically mentioned or not, and to authorize its agents, servants, and employees under its direction to carry out the provisions hereof. "(b) To grant, refuse, suspend, or cancel permits or licenses for the purchase, transporta- tion, Importation, sale, or manufacture of alco- holic beverages or other permits In regard thereto. "(c) . . . "(d) To exercise all other powers, duties, and functions conferred by this Act, and all powers incidental, convenient, or necessary to enable It to administer or carry out any of the provisions of this Act and to publish all neces- sary rules and regulations." Hon. Coke R. Stevenson, Jr., page 4 (WW-615) Although the Texas Liquor Control Board Is given broad general authority, the powers delegated must be deter- mined by the legislative intent evidenced within the frame- work of the entire Act. As stated in 1 Tex. Jur. Supp. 98: "Generally the powers of an administrative agency are derived entirely from legislative enactment. It has such powers only as are ex- pressly conferred upon it by statute together with those necessarily implied from powers and duties expressly given or imposed. And while a statute conferring authority upon an agency will be liberally construed, the agency must not go beyond the clear intent of the Leglsla- ture. It may not enlarge Its powers by its own orders." While examination of the Liquor Control Act reveals numerous specific provisions setting up a broad pattern for control through licenses and vermits. the nrovisions relating to label appr&al are limited-in scope and-are directed toward setting label requirements. The Texas Liquor Control Act reflects no "clear in- tent of the Legislature" that label approval is subject to cancellation or suspension for non-related violations by out- of-state beer manufacturers. Since cancellation or suspension of the label approv- al provided for in Sec. 28 of Art. 667 of the Penal Code of Exas for a violation of the Texas Liquor Control Act not re- lated to the label by an out-of-state-beer manufacturer would enlarge the powers of the Texas Liquor Control Board beyond the legislative intent evidenced in said Act, such action Is without authority. SUMMARY The Texas Liquor Control Board does not have the authority to cancel or suspend the label approval provided for in Sec. 28 of Art. 66'7 of the Penal Code of Texas upon afinding . - Hon. Coke R. Stevenson, Jr., Page 5 (m-615) that an out-of-state beer manufacturer has violated any provisions of the Texas Liquor Control Act which does not apply to the label. Yours very truly, WILL WILSON Attorney General of Texas Assistant JAO:pc APPROVED: OPINION COMMITTEE: Geo. P. Blackburn, Chairman Leonard Passmore Henry Braswell Dean Davis Tom McFarling %VIEWED FOR THE ATTORNEY GENERAL : W. V. Geppert