Bill Text: TX SB757 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: Relating to the delivery and direct shipment of certain alcoholic beverages to ultimate consumers; creating criminal offenses.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2021-03-11 - Referred to Business & Commerce [SB757 Detail]

Download: Texas-2021-SB757-Introduced.html

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87R6959 JAM-D
By: Schwertner S.B. No. 757

A BILL TO BE ENTITLED
AN ACT
relating to the delivery and direct shipment of certain alcoholic
beverages to ultimate consumers; creating criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 14, Alcoholic Beverage Code, is amended
by adding Section 14.09 to read as follows:
Sec. 14.09. DIRECT SHIPMENT TO CONSUMERS. (a) The holder
of a distiller's and rectifier's permit may ship to an ultimate
consumer, including an ultimate consumer located in a dry area,
distilled spirits sold by the permit holder to the ultimate
consumer under Section 14.05. Delivery must be by the holder of a
carrier or consumer delivery permit.
(b) All distilled spirits shipped to an ultimate consumer by
the holder of a distiller's and rectifier's permit must be in a
package that is clearly and conspicuously labeled showing that:
(1) the package contains distilled spirits; and
(2) the package may be delivered only to a person
described by Subsection (c).
(c) Distilled spirits shipped by the holder of a distiller's
and rectifier's permit may not be delivered to any person other
than:
(1) the person who purchased the distilled spirits;
(2) a recipient designated in advance by the
purchaser; or
(3) a person at the delivery address who is 21 years of
age or older.
(d) Distilled spirits may be delivered only to a person who
is 21 years of age or older and only after the person accepting the
package:
(1) presents valid proof of identity and age; and
(2) personally signs a receipt acknowledging delivery
of the package.
(e) The holder of a distiller's and rectifier's permit may
not:
(1) sell or ship distilled spirits to a minor;
(2) deliver distilled spirits to a consumer using a
carrier that does not hold a carrier's permit or a consumer delivery
permit under this code; or
(3) deliver to a consumer in this state more than the
amount of distilled spirits allowed to be sold to the consumer under
Section 14.05(c).
SECTION 2. Section 16.09(a), Alcoholic Beverage Code, is
amended to read as follows:
(a) The holder of a winery permit may ship wine to the
ultimate consumer, including ultimate consumers located in dry
areas. Delivery must be by the holder of a carrier or consumer
delivery permit.
SECTION 3. Section 41.01, Alcoholic Beverage Code, is
amended to read as follows:
Sec. 41.01. AUTHORIZED ACTIVITIES. (a) The holder of a
carrier permit may transport malt beverages and liquor into and out
of this state and between points within the state.
(b) The holder may transport malt beverages and liquor from
one wet area to another wet area across a dry area if that course of
transportation is necessary or convenient.
(c) The holder of a carrier permit who transports malt
beverages or liquor to the premises of a wholesaler, including to a
location from which the wholesaler is temporarily conducting
business under Section 109.62, shall provide to the consignee a
shipping invoice that clearly states:
(1) the name and address of the consignor and
consignee;
(2) the origin and destination of the shipment; and
(3) any other information required by this code or
commission rule, including the brands, sizes of containers, types,
and quantities of malt beverages and liquor contained in the
shipment.
SECTION 4. Section 41.04, Alcoholic Beverage Code, is
amended to read as follows:
Sec. 41.04. REQUIRED INFORMATION. The holder of a carrier
permit shall furnish information required by the commission
concerning the transportation of malt beverages and liquor.
SECTION 5. Subtitle A, Title 3, Alcoholic Beverage Code, is
amended by adding Chapter 54A to read as follows:
CHAPTER 54A. OUT-OF-STATE DISTILLERY DIRECT SHIPPER'S PERMIT
Sec. 54A.01. AUTHORIZED ACTIVITIES. The holder of an
out-of-state distillery direct shipper's permit may sell and
deliver distilled spirits that are produced or bottled by the
permittee to an ultimate consumer located in the State of Texas.
Delivery must be by the holder of a carrier permit.
Sec. 54A.02. PROHIBITED ACTIVITIES. The holder of an
out-of-state distillery direct shipper's permit may not:
(1) sell or ship distilled spirits to a minor;
(2) deliver distilled spirits to a consumer using a
carrier that does not hold a carrier's permit under this code;
(3) deliver distilled spirits within a 30-day period
to the same consumer in this state in an amount that exceeds the
individual authorization under Section 14.05(c); or
(4) sell distilled spirits to ultimate consumers for
off-premises consumption in an annual amount that exceeds the
annual authorization under Section 14.05(b).
Sec. 54A.03. QUALIFICATIONS FOR PERMIT. An out-of-state
distillery direct shipper's permit may only be issued to a person
who:
(1) does not hold a distiller's and rectifier's permit
in the State of Texas;
(2) operates a distillery located in the United States
and holds all state and federal permits necessary to operate the
distillery;
(3) holds a Texas sales tax permit;
(4) expressly submits to personal jurisdiction in
Texas state and federal courts and expressly submits to venue in
Travis County, Texas, as proper venue for any proceedings that may
be initiated by or against the commission; and
(5) does not directly or indirectly have any financial
interest in a Texas wholesaler or retailer as those terms are used
in Section 102.01.
Sec. 54A.04. IDENTIFICATION REQUIREMENTS. (a) All
distilled spirits sold or shipped by the holder of an out-of-state
distillery direct shipper's permit must be in a package that is
clearly and conspicuously labeled showing that:
(1) the package contains distilled spirits; and
(2) the package may only be delivered to a person
described by Subsection (b).
(b) Distilled spirits sold or shipped by a holder of an
out-of-state distillery direct shipper's permit may not be
delivered to any person other than:
(1) the person who purchased the distilled spirits;
(2) a recipient designated in advance by the
purchaser; or
(3) a person at the delivery address who is 21 years of
age or older.
(c) Distilled spirits may be delivered only to a person who
is 21 years of age or older and only after the person accepting the
package:
(1) presents valid proof of identity and age; and
(2) personally signs a receipt acknowledging delivery
of the package.
Sec. 54A.05. REPORTS AND RECORDKEEPING. (a) The holder of
an out-of-state distillery direct shipper's permit shall maintain
records of all sales and deliveries made under the permit.
(b) The holder of an out-of-state distillery direct
shipper's permit shall maintain complete sales and delivery records
for all sales and deliveries made under the permit for at least five
years from the date of sale. These records shall be made available
on request for inspection by the commission or any other
appropriate state agency.
(c) The commission shall establish rules requiring the
holder of an out-of-state distillery direct shipper's permit to
periodically file reports providing the commission with such
information as the commission may determine is needed to more
efficiently and effectively enforce the state laws applicable to
the permit holder.
Sec. 54A.06. LIABILITY FOR AND PAYMENT OF TAXES. (a) Sales
made by the holder of an out-of-state distillery direct shipper's
permit shall be considered to have been made in the State of Texas
for delivery in the State of Texas.
(b) The holder of an out-of-state distillery direct
shipper's permit shall be responsible for paying the following
state taxes related to sales and deliveries made under this
chapter:
(1) excise taxes on the distilled spirits sold,
payable at the same rate and in the same manner as if the permittee
were a Texas distiller or rectifier located in Texas; and
(2) state sales and use taxes all payable at the same
rate and in the same manner as if the permittee were a Texas
distiller or rectifier located in Texas.
(c) An ultimate consumer who purchases distilled spirits
from the holder of an out-of-state distillery direct shipper's
permit under this chapter shall be considered to be purchasing the
distilled spirits from a Texas permittee and shall not be charged
the administrative fee for personal imports set forth in Section
107.07.
Sec. 54A.07. RESALE PROHIBITED. A consumer purchasing
distilled spirits from the holder of an out-of-state distillery
direct shipper's permit may not resell the distilled spirits, and
any such distilled spirit that is resold is an illicit beverage.
Sec. 54A.08. DELIVERY AREAS. Distilled spirits shipped
under this chapter may be delivered to persons located in a dry
area.
Sec. 54A.09. LABEL APPROVAL NOT REQUIRED. If the holder of
an out-of-state distillery direct shipper's permit has satisfied
all federal label approval requirements for a particular brand of
distilled spirits, then no further label approval shall be required
by the commission.
Sec. 54A.10. RULES. The commission shall adopt rules and
forms necessary to implement this chapter.
Sec. 54A.11. PENALTY FOR SHIPPING WITHOUT PERMIT. Any
person who does not hold an out-of-state distillery direct
shipper's permit who sells and ships alcohol from outside of Texas
to an ultimate consumer in Texas commits on first offense a Class B
misdemeanor, on second offense a Class A misdemeanor, and on third
offense a state jail felony.
SECTION 6. Section 57.01, Alcoholic Beverage Code, as added
by Chapter 441 (S.B. 1450), Acts of the 86th Legislature, Regular
Session, 2019, is amended to read as follows:
Sec. 57.01. AUTHORIZED ACTIVITIES. (a) The holder of a
consumer delivery permit may contract with or employ a driver for
the delivery of an alcoholic beverage from the premises of the
holder of a retailer's or manufacturer's permit or license
described by Subsection (b) to an ultimate consumer located in an
area where the sale of the beverage is legal.
(b) An alcoholic beverage may be delivered under this
section only if the alcoholic beverage is sold to the ultimate
consumer by the holder of a:
(1) package store permit;
(2) wine only package store permit;
(3) wine and beer retailer's permit;
(4) wine and beer retailer's off-premise permit;
(5) retail dealer's on-premise license;
(6) retail dealer's off-premise license; [or]
(7) mixed beverage permit authorized to deliver
alcoholic beverages under Section 28.1001;
(8) distiller's and rectifier's permit;
(9) winery permit; or
(10) brewer's license.
SECTION 7. Section 57.02(b), Alcoholic Beverage Code, as
added by Chapter 441 (S.B. 1450), Acts of the 86th Legislature,
Regular Session, 2019, is amended to read as follows:
(b) The holder of a consumer delivery permit may make
deliveries of alcoholic beverages:
(1) only in response to bona fide orders placed by the
consumer under Section 57.01; and
(2) only in areas where the sale of the beverages is
legal in:
(A) the county in which the premises of the
retailer or manufacturer making the sale is located;
(B) the city or town in which the premises of the
retailer or manufacturer making the sale is located, if the
retailer or manufacturer is located in a city or town; or
(C) an area not further than two miles beyond the
municipal boundary of the city or town in which the premises of the
retailer or manufacturer is located, if applicable.
SECTION 8. Section 57.04, Alcoholic Beverage Code, as added
by Chapter 441 (S.B. 1450), Acts of the 86th Legislature, Regular
Session, 2019, is amended to read as follows:
Sec. 57.04. ELIGIBILITY FOR PERMIT. A consumer delivery
permit may be issued to:
(1) a person who contracts with or employs individuals
for the delivery of retail goods to consumers, other than the holder
of a permit or license in the [manufacturing or] wholesale tier of
the alcoholic beverage industry; or
(2) the holder of a permit or license described by
Section 57.01(b).
SECTION 9. Section 57.06(c), Alcoholic Beverage Code, as
added by Chapter 441 (S.B. 1450), Acts of the 86th Legislature,
Regular Session, 2019, is amended to read as follows:
(c) An alcoholic beverage may be delivered under this
chapter outside the hours of operation of the retailer or
manufacturer from which the delivery is being made only if the
delivery driver:
(1) receives the beverage from the retailer or
manufacturer during the retailer's or manufacturer's hours of legal
sale; and
(2) completes the delivery to the consumer in a
reasonable amount of time after leaving the retailer's or
manufacturer's premises.
SECTION 10. Section 57.07, Alcoholic Beverage Code, as
added by Chapter 441 (S.B. 1450), Acts of the 86th Legislature,
Regular Session, 2019, is amended to read as follows:
Sec. 57.07. RETAILER AND MANUFACTURER RESPONSIBILITY. (a)
A retailer's or manufacturer's responsibilities under this code
regarding delivery of an alcoholic beverage to an ultimate consumer
are considered satisfied at the time the retailer or manufacturer
transfers possession of an alcoholic beverage to the consumer
delivery permittee or a delivery driver employed by, contracted
with, or acting on behalf of the holder of a consumer delivery
permit.
(b) An action by a consumer delivery permittee or by a
delivery driver is not attributable to the retailer or manufacturer
with regard to:
(1) providing, selling, or serving alcohol to a minor
or to an intoxicated individual;
(2) the delivery of alcohol in a dry or otherwise
illegal area, unless the retailer or manufacturer has contractually
agreed to retain responsibility for ensuring that deliveries are
not directed to a dry or otherwise illegal area; or
(3) any other provision of this code.
(c) A retailer or manufacturer:
(1) is not required to verify that the consumer
delivery permittee or the delivery driver has received delivery
driver training under Section 57.09(a)(1); and
(2) may not be held responsible for any reason under
statutory or common law for the actions of a consumer delivery
permittee or a delivery driver acting on behalf of a consumer
delivery permittee.
SECTION 11. Chapter 62, Alcoholic Beverage Code, as
effective September 1, 2021, is amended by adding Section 62.123 to
read as follows:
Sec. 62.123. DIRECT SHIPMENT TO CONSUMERS. (a) The holder
of a brewer's license may ship to an ultimate consumer, including an
ultimate consumer located in a dry area, malt beverages sold by the
license holder to the ultimate consumer under Section 62.122(a)(2).
Delivery must be by the holder of a carrier or consumer delivery
permit.
(b) All malt beverages shipped to an ultimate consumer by
the holder of a brewer's license must be in a package that is
clearly and conspicuously labeled showing that:
(1) the package contains malt beverages; and
(2) the package may be delivered only to a person
described by Subsection (c).
(c) Malt beverages shipped by the holder of a brewer's
license may not be delivered to any person other than:
(1) the person who purchased the malt beverages;
(2) a recipient designated in advance by the
purchaser; or
(3) a person at the delivery address who is 21 years of
age or older.
(d) Malt beverages may be delivered only to a person who is
21 years of age or older and only after the person accepting the
package:
(1) presents valid proof of identity and age; and
(2) personally signs a receipt acknowledging delivery
of the package.
(e) The holder of a brewer's license may not:
(1) sell or ship malt beverages to a minor;
(2) deliver malt beverages to a consumer using a
carrier that does not hold a carrier's permit or a consumer delivery
permit under this code; or
(3) deliver to the same consumer in this state more
than 288 fluid ounces of malt beverages per calendar day.
SECTION 12. Subtitle B, Title 3, Alcoholic Beverage Code,
is amended by adding Chapter 63A to read as follows:
CHAPTER 63A. OUT-OF-STATE BREWERY DIRECT SHIPPER'S LICENSE
Sec. 63A.01. AUTHORIZED ACTIVITIES. The holder of an
out-of-state brewery direct shipper's license may sell and deliver
malt beverages that are produced or bottled by the licensee to an
ultimate consumer located in the State of Texas. Delivery must be
by the holder of a carrier permit.
Sec. 63A.02. PROHIBITED ACTIVITIES. The holder of an
out-of-state brewery direct shipper's license may not:
(1) sell or ship malt beverages to a minor;
(2) deliver malt beverages to a consumer using a
carrier that does not hold a carrier's permit under this code;
(3) deliver malt beverages to the same consumer in the
same calendar day in an amount that exceeds the daily authorization
under Section 62.122(a-1); or
(4) sell malt beverages to ultimate consumers in this
state in an annual amount that exceeds the annual authorization
under Section 62.122(b).
Sec. 63A.03. QUALIFICATIONS FOR LICENSE. An out-of-state
brewery direct shipper's license may only be issued to a person who:
(1) does not hold a brewer's license in the State of
Texas;
(2) operates a brewery located in the United States
and holds all state and federal permits necessary to operate the
brewery;
(3) holds a Texas sales tax permit;
(4) expressly submits to personal jurisdiction in
Texas state and federal courts and expressly submits to venue in
Travis County, Texas, as proper venue for any proceedings that may
be initiated by or against the commission; and
(5) does not directly or indirectly have any financial
interest in a Texas wholesaler or retailer as those terms are used
in Section 102.01.
Sec. 63A.04. IDENTIFICATION REQUIREMENTS. (a) All malt
beverages sold or shipped by the holder of an out-of-state brewery
direct shipper's license must be in a package that is clearly and
conspicuously labeled showing that:
(1) the package contains malt beverages; and
(2) the package may only be delivered to a person
described by Subsection (b).
(b) Malt beverages sold or shipped by a holder of an
out-of-state brewery direct shipper's license may not be delivered
to any person other than:
(1) the person who purchased the malt beverages;
(2) a recipient designated in advance by the
purchaser; or
(3) a person at the delivery address who is 21 years of
age or older.
(c) Malt beverages may be delivered only to a person who is
21 years of age or older and only after the person accepting the
package:
(1) presents valid proof of identity and age; and
(2) personally signs a receipt acknowledging delivery
of the package.
Sec. 63A.05. REPORTS AND RECORDKEEPING. (a) The holder of
an out-of-state brewery direct shipper's license shall maintain
records of all sales and deliveries made under the license.
(b) The holder of an out-of-state brewery direct shipper's
license shall maintain complete sales and delivery records for all
sales and deliveries made under the license for at least five years
from the date of sale. These records shall be made available on
request for inspection by the commission or any other appropriate
state agency.
(c) The commission shall establish rules requiring the
holder of an out-of-state brewery direct shipper's license to
periodically file reports providing the commission with such
information as the commission may determine is needed to more
efficiently and effectively enforce the state laws applicable to
the license holder.
Sec. 63A.06. LIABILITY FOR AND PAYMENT OF TAXES. (a) Sales
made by the holder of an out-of-state brewery direct shipper's
license shall be considered to have been made in the State of Texas
for delivery in the State of Texas.
(b) The holder of an out-of-state brewery direct shipper's
license shall be responsible for paying the following state taxes
related to sales and deliveries made under this chapter:
(1) excise taxes on the malt beverages sold, payable
at the same rate and in the same manner as if the licensee were a
Texas brewer located in Texas; and
(2) state sales and use taxes all payable at the same
rate and in the same manner as if the licensee were a Texas brewer
located in Texas.
(c) An ultimate consumer who purchases malt beverages from
the holder of an out-of-state brewery direct shipper's license
under this chapter shall be considered to be purchasing the malt
beverages from a Texas licensee and shall not be charged the
administrative fee for personal imports set forth in Section
107.07.
Sec. 63A.07. RESALE PROHIBITED. A consumer purchasing malt
beverages from the holder of an out-of-state brewery direct
shipper's license may not resell the malt beverages, and any such
malt beverage that is resold is an illicit beverage.
Sec. 63A.08. DELIVERY AREAS. Malt beverages shipped under
this chapter may be delivered to persons located in a dry area.
Sec. 63A.09. LABEL APPROVAL NOT REQUIRED. If the holder of
an out-of-state brewery direct shipper's license has satisfied all
federal label approval requirements for a particular brand of malt
beverages, then no further label approval shall be required by the
commission.
Sec. 63A.10. RULES. The commission shall adopt rules and
forms necessary to implement this chapter.
Sec. 63A.11. PENALTY FOR SHIPPING WITHOUT LICENSE. Any
person who does not hold an out-of-state brewery direct shipper's
license who sells and ships alcohol from outside of Texas to an
ultimate consumer in Texas commits on first offense a Class B
misdemeanor, on second offense a Class A misdemeanor, and on third
offense a state jail felony.
SECTION 13. Chapter 74, Alcoholic Beverage Code, is amended
by adding Section 74.12 to read as follows:
Sec. 74.12. DIRECT SHIPMENT TO CONSUMERS. (a) The holder
of a brewpub license may ship to an ultimate consumer, including an
ultimate consumer located in a dry area, malt beverages sold by the
license holder to the ultimate consumer under Section 74.01(a)(2).
Delivery must be by the holder of a carrier or consumer delivery
permit.
(b) All malt beverages shipped to an ultimate consumer by
the holder of a brewpub license must be in a package that is clearly
and conspicuously labeled showing that:
(1) the package contains malt beverages; and
(2) the package may be delivered only to a person
described by Subsection (c).
(c) Malt beverages shipped by the holder of a brewpub
license may not be delivered to any person other than:
(1) the person who purchased the malt beverages;
(2) a recipient designated in advance by the
purchaser; or
(3) a person at the delivery address who is 21 years of
age or older.
(d) Malt beverages may be delivered only to a person who is
21 years of age or older and only after the person accepting the
package:
(1) presents valid proof of identity and age; and
(2) personally signs a receipt acknowledging delivery
of the package.
(e) The holder of a brewpub license may not:
(1) sell or ship malt beverages to a minor; or
(2) deliver malt beverages to a consumer using a
carrier that does not hold a carrier's permit or a consumer delivery
permit under this code.
SECTION 14. Section 107.05(b), Alcoholic Beverage Code, is
amended to read as follows:
(b) This section does not apply to the transportation of
liquor into the state as authorized by Chapter 54A or Section 107.07
[of this code].
SECTION 15. Section 14.05(d), Alcoholic Beverage Code, is
repealed.
SECTION 16. This Act takes effect September 1, 2021.