Direct Shipping Bill’s New Offense Reaches Out-Of-State Wine Shippers

The text as introduced · 3,990 words

89R2231 MPF-D

By: Flores
S.B. No. 246

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 14.051 to read as follows:

Sec. 14.051. 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 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 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 as

defined by Section 1.04.

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, 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 or served 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;

(7) mixed beverage permit authorized to deliver

alcoholic beverages under Section 28.1001; [ or ]

(8) private club permit authorized to deliver

alcoholic beverages under Section 32.155 ;

(9) distiller's and rectifier's permit;

(10) winery permit; or

(11) brewer's license .

SECTION 7. Section 57.02(b), Alcoholic Beverage Code, 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, 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, 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, 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, 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 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 permit under this code;

(3) deliver malt beverages to the same consumer on 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 as defined by

Section 1.04.

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 permit or a consumer delivery

permit under this code.

SECTION 14. Section 107.04, Alcoholic Beverage Code, is

amended to read as follows:

Sec. 107.04. DELIVERY OF MALT BEVERAGES IN DRY AREA. (a)

Except as provided by Subsection (b), a [ A ] common carrier may not

deliver malt beverages in a dry area unless the malt beverages are

consigned to a general distributor's licensee who has previously

stated that the licensee intends to transport the malt beverages to

a licensed place of business in a wet area. A common carrier who

transports malt beverages to a distributor in a dry area shall

comply strictly with this section and Section 107.02.

(b) A common carrier may deliver malt beverages to an

ultimate consumer located in a dry area as authorized by Section

62.123, 63A.08, or 74.12.

SECTION 15. 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 54, Chapter 54A, or

Section 107.07 [ of this code ].

SECTION 16. Section 107.06(c), Alcoholic Beverage Code, is

amended to read as follows:

(c) This section does not apply to :

(1) the importation or transportation of military malt

beverages consigned to a military installation ; or

(2) [ to ] the importation of malt beverages as

authorized under Chapter 63A or Section 107.07.

SECTION 17. Section 107.07(f), Alcoholic Beverage Code, is

amended to read as follows:

(f) Except as provided by Chapter 54, Chapter 54A, or

Chapter 63A, any person in the business of selling alcoholic

beverages in another state or country who ships or causes to be

shipped any alcoholic beverage directly to any Texas resident under

this section is in violation of this code.

SECTION 18. Section 14.05(d), Alcoholic Beverage Code, is

repealed.

SECTION 19. This Act takes effect September 1, 2025.