2005 Texas Alcoholic Beverage Code CHAPTER 28. MIXED BEVERAGE PERMIT

ALCOHOLIC BEVERAGE CODE

CHAPTER 28. MIXED BEVERAGE PERMIT


	§ 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, § 1, eff. Sept. 1, 1977.  
Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, § 4, eff. 
Sept. 1, 1977;  Acts 1979, 66th Leg., p. 111, ch. 70, § 1, eff. 
Aug. 27, 1979.


	§ 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, § 1, eff. Sept. 1, 1977.  
Amended by Acts 1983, 68th Leg., p. 1346, ch. 278, § 18, eff. 
Sept. 1, 1984.


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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 his 
surviving spouse or descendants are his 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 pays a fee of $500 and 
notifies the commission, on completed forms and attachments 
prescribed by the commission, of the proposed transfer at least 10 
days 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 of this code 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, § 1, eff. Sept. 1, 1977.  
Amended by Acts 1987, 70th Leg., ch. 303, § 6, eff. June 11, 
1987;  Acts 1989, 71st Leg., 1st C.S., ch. 36, § 3, eff. Oct. 18, 
1989;  Acts 1993, 73rd Leg., ch. 934, § 34, eff. Jan. 1, 1994.


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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.

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


	§ 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, § 1, eff. Sept. 1, 1977.  
Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, § 5, eff. 
Sept. 1, 1977;  Acts 1993, 73rd Leg., ch. 934, § 35, eff. Sept. 1, 
1993.


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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, § 36, eff. Sept. 1, 1993.          


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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.

Acts 1977, 65th Leg., p. 432, ch. 194, § 1, eff. Sept. 1, 1977.  
Amended by Acts 2001, 77th Leg., ch. 1274, § 1, eff. Sept. 1, 
2001.


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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, § 1, eff. Sept. 1, 1977.            


	§ 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.
	(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, § 
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.  Subsection (a)(2) does 
not apply to this subsection.
	(e)  The provisions of Section 109.53 that relate to 
residency requirements and compliance with Texas laws of 
incorporation do not apply to the holders of a mixed beverage permit 
under this section.

Added by Acts 1985, 69th Leg., ch. 540, § 1, eff. June 12, 1985.  
Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 3, § 21.02, 21.05, 
eff. Jan. 11, 2004.


	§ 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, § 4, eff. Oct. 
18, 1989.


	§ 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, § 37, eff. Jan. 1, 1994.           


	§ 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, § 37, eff. Jan. 1, 1994.           


	§ 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, § 37, eff. Jan. 1, 1994.  
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 
1, 1995;  Acts 1995, 74th Leg., ch. 1001, § 6, eff. Aug. 28, 1995.


	§ 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, § 6, eff. Aug. 28, 1995.  
Amended by Acts 2001, 77th Leg., ch. 853, § 2, eff. Sept. 1, 
2001;  Acts 2001, 77th Leg., ch. 1045, § 2, eff. Sept. 1, 2001.