CHAPTER 103. ILLICIT BEVERAGES
ALCOHOLIC BEVERAGE CODE
TITLE 4. REGULATORY AND PENAL PROVISIONS
CHAPTER 103. ILLICIT BEVERAGES
Sec. 103.01. ILLICIT BEVERAGES PROHIBITED. No person may
possess, manufacture, transport, or sell an illicit beverage.
Acts 1977, 65th Leg., p. 505, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.02. EQUIPMENT OR MATERIAL FOR MANUFACTURE OF ILLICIT
BEVERAGES. No person may possess equipment or material designed
for, capable of use for, or used in manufacturing an illicit
beverage.
Acts 1977, 65th Leg., p. 505, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.03. SEIZURE OF ILLICIT BEVERAGES, ETC. A peace officer
may seize without a warrant:
(1) any illicit beverage, its container, and its packaging;
(2) any vehicle, including an aircraft or watercraft, used to
transport an illicit beverage;
(3) any equipment designed for use in or used in manufacturing
an illicit beverage; or
(4) any material to be used in manufacturing an illicit
beverage.
Acts 1977, 65th Leg., p. 505, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.04. ARREST OF PERSON IN POSSESSION. A peace officer
may arrest without a warrant any person found in possession of:
(1) an illicit beverage;
(2) any equipment designed for use in or used in manufacturing
an illicit beverage; or
(3) any material to be used in manufacturing an illicit
beverage.
Acts 1977, 65th Leg., p. 505, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.05. REPORT OF SEIZURE. (a) A peace officer who makes
a seizure under Section 103.03 of this code shall make a report
in triplicate which lists each item seized and the place and name
of the owner, operator, or other person from whom it is seized.
One copy of the report shall be verified by oath.
(b) The verified copy shall be retained in the permanent files
of the commission or other agency making the seizure. The copy is
subject to inspection by any member of the legislature or by any
authorized law enforcement agency of the state.
(c) One copy of the report shall be delivered to the person from
whom the seizure is made.
(d) A peace officer who makes a false report of the property
seized commits a felony punishable by confinement in the Texas
Department of Criminal Justice for not less than two years and
not more than five years.
(e) A peace officer who fails to file the reports of a seizure
as required by this section commits a misdemeanor punishable by a
fine of not less than $50 nor more than $100 or by confinement in
jail for not less than 10 nor more than 90 days or by both. The
commission shall insure that the reports are made by peace
officers.
Acts 1977, 65th Leg., p. 505, ch. 194, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 5222, ch. 954, Sec. 1,
eff. Aug. 29, 1983.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 25.008, eff. September 1, 2009.
Sec. 103.06. BEVERAGE DELIVERED TO COMMISSION. Any alcoholic
beverage, its container, and its packaging which has been seized
by a peace officer, as provided in Section 103.03 of this code,
may not be replevied and shall be delivered to the commission for
immediate public or private sale in the manner the commission
considers best.
Acts 1977, 65th Leg., p. 506, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.07. BEVERAGE OF ILLICIT MANUFACTURE OR UNFIT FOR
CONSUMPTION. (a) The commission may not sell alcoholic
beverages seized by a peace officer, as provided in Section
103.03, that are unfit for public consumption or are of illicit
manufacture.
(b) Alcoholic beverages are unfit for public consumption if:
(1) the manufacturer or wholesaler of the beverages determines
that the beverages are inappropriate for sale to a consumer;
(2) the beverages are damaged; or
(3) the code date affixed by the manufacturer to the beverages
has expired.
(c) If the commission determines that seized alcoholic beverages
are unfit for public consumption or are of illicit manufacture,
the commission shall destroy the alcoholic beverages.
Acts 1977, 65th Leg., p. 506, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Amended by:
Acts 2005, 79th Leg., Ch.
1182, Sec. 8, eff. June 18, 2005.
Sec. 103.08. SALE OF BEER. (a) Any beer, its container, or its
packaging which is seized under the terms of this chapter shall
be disposed of in accordance with this section.
(b) On notification that beer has been seized, the commission
shall promptly notify a holder of a general, local, or branch
distributor's license who handles the brand of beer seized and
who operates in the county in which it was seized. If the beer
was seized in a dry area, the commission shall notify either the
general, local, or branch distributor who handles the brand
operating nearest the area or the manufacturer brewing the beer.
The commission and the distributor or manufacturer shall jointly
determine whether the beer is in a salable condition.
(c) If the beer is determined not to be in a salable condition,
the commission shall immediately destroy it. If it is determined
to be in a salable condition, it shall be offered for sale to the
distributor or manufacturer. If offered to a distributor, the
beer shall be sold at the distributor's cost price less any state
taxes which have been paid on the beer, F.O.B. the distributor's
place of business. If the beer is offered to a manufacturer, it
shall be sold at the manufacturer's cost price to its nearest
distributor, less any state taxes which have been paid on the
beer, F.O.B., the nearest distributor's place of business. In
either case, the storage or warehousing charges necessarily
incurred as a result of the seizure shall be added to the cost
price.
(d) If the distributor or manufacturer does not exercise the
right to purchase salable beer or to purchase returnable bottles,
containers, or packages at their deposit price within 10 days,
the commission shall sell the beer, bottles, containers, or
packages at public or private sale as provided in this chapter.
Acts 1977, 65th Leg., p. 506, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.09. SALE OF LIQUOR. (a) Any liquor, its container, or
its packaging which is seized under the terms of this chapter
shall be disposed of in accordance with this section.
(b) On notification that liquor has been seized, the commission
shall promptly notify a holder of a wholesaler's permit, a
general class B wholesaler's permit, or a local class B
wholesaler's permit who handles the brand of liquor seized and
who operates in the county in which it was seized. If the liquor
was seized in a dry area, the commission shall notify the
wholesaler who handles the brand seized who operates nearest the
area. The commission and the wholesaler shall jointly determine
whether the liquor is in a salable condition.
(c) If the liquor is determined not to be in a salable
condition, the commission shall immediately destroy it. If it is
determined to be in a salable condition, it shall first be
offered for sale to the wholesaler notified at the wholesaler's
cost price F.O.B. its place of business, plus any storage or
warehousing charges necessarily incurred as a result of the
seizure.
(d) If the wholesaler does not exercise the right to purchase
salable liquor, containers, or packages at the price specified in
this section within 10 days, the commission shall sell the
liquor, container, or packages at public or private sale, as
provided in this chapter.
Acts 1977, 65th Leg., p. 506, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.10. EXERCISE OF DISCRETION IN CASE OF MISTAKE. The
preceding sections of this subchapter shall not be construed as
preventing the commission from exercising its discretion if
illicit alcoholic beverages are seized as the result of an
accidental shipment or other reasonable mistake. Under those
circumstances, the commission may issue orders and make
disposition of the alcoholic beverages as it finds just and
reasonable.
Acts 1977, 65th Leg., p. 507, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.11. PROCEEDS FROM SALE. (a) The proceeds from the
sale of seized alcoholic beverages, their containers, and their
packaging shall be placed in escrow in a suspense account
established by the commission for that purpose, pending the
outcome of the forfeiture suit provided for in this chapter.
(b) Proceeds in escrow which are not forfeited to the state as a
result of the suit shall be refunded to the alleged violator.
Should the state illegally seize and sell any alcoholic
beverages, the person legally entitled to possession of the
beverages at the time of the seizure may recover from the state
the fair market value of the beverages seized and sold, with the
reimbursement paid out of the proceeds held in escrow from the
sale and, if the funds in escrow are not sufficient, from the
confiscated liquor fund.
Acts 1977, 65th Leg., p. 507, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.12. CEILING PRICES DURING EMERGENCY. If the federal
government provides a method by which illicit alcoholic beverages
or other property belonging to or forfeited to the state is sold
at ceiling prices during a national emergency, the commission may
comply with federal law or regulations in the sale or disposal of
the beverages or property, even to the extent of partially or
wholly abrogating provisions of this code that are inconsistent
with the federal law or regulations.
Acts 1977, 65th Leg., p. 507, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.13. BONDING OF SEIZED VEHICLES PENDING SUIT. Any
person with an ownership or a security interest in a vehicle that
has been seized under Section 103.03 may recover possession of
the vehicle pending suit for forfeiture by executing a bond with
surety equal to double the appraised value of the vehicle. The
bond shall be approved by the officer who made the seizure and
shall secure the return of the vehicle to the custody of the
seizing officer on the day of trial of the forfeiture suit.
Acts 1977, 65th Leg., p. 507, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.14. INSTITUTION OF SUIT FOR FORFEITURE. (a) The
attorney general or the county or district attorney in the county
in which a seizure is made shall institute a suit for forfeiture
of the property or the proceeds in escrow from any sale of
illicit beverages, or both, when notified by the commission or by
the seizing officer that a seizure has been made under Section
103.03 of this code.
(b) The forfeiture suit shall be brought in the name of the
State of Texas against the property or the proceeds in escrow, or
both, and shall be brought in a court of competent jurisdiction
in the county in which the seizure was made.
Acts 1977, 65th Leg., p. 508, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.15. NOTICE OF FORFEITURE SUIT. (a) Notice of the
pendency of a suit for forfeiture under this chapter shall be
served in the manner prescribed by law on any person in
possession of the property at the time of seizure.
(b) If no person was in possession at the time of seizure or if
the location of anyone who was in possession is unknown, notice
of the suit shall be posted for 20 consecutive days immediately
preceding the date of the suit at the courthouse door in the
county in which the seizure was made.
Acts 1977, 65th Leg., p. 508, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.16. FORFEITURE OF A SEIZED VEHICLE. (a) In a suit for
forfeiture of a vehicle seized under Section 103.03 of this code,
the state shall have the burden of proving that the vehicle was
used to transport an illicit beverage and that all intervenors
under Subsection (b) of this section, if any, knowingly violated
some provision of this code.
(b) Any person with an ownership or security interest in the
vehicle may intervene in the suit for forfeiture to establish his
rights. An intervenor under the provisions of this section has
the burden of proving that he has a valid ownership or security
interest in the vehicle.
(c) If the state fails to prove that the vehicle was used to
transport an illicit beverage, the court shall render judgment
returning the vehicle to the owner.
(d) If the state proves that the vehicle was used to transport
an illicit beverage and that all intervenors, if any, knowingly
violated some provision of this code, the court shall render
judgment forfeiting the vehicle to the state.
(e) If the state proves that the vehicle was used to transport
an illicit beverage but fails to prove that any intervenor
knowingly violated some provision of this code, the court shall
render judgment delivering possession of the vehicle to the
innocent intervenor with the highest priority to possession of
the vehicle.
Acts 1977, 65th Leg., p. 508, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.17. FORFEITURE OF OTHER SEIZED PROPERTY. (a) In any
suit for forfeiture of proceeds in escrow from a sale of illicit
beverages or of property other than vehicles, or both, seized
under Section 103.03 of this code, the state shall have the
burden of proving that:
(1) the alcoholic beverages were illicit;
(2) the equipment is designed to be used on or is used in
manufacturing an illicit beverage; or
(3) the material is to be used in manufacturing an illicit
beverage.
(b) If the state fails to prove the facts necessary for
forfeiture, the court shall render judgment returning possession
of the property or of the proceeds in escrow to the owner or the
person in possession at the time of seizure.
(c) If the state proves the facts necessary for forfeiture, the
court shall render judgment forfeiting the property or the
proceeds in escrow, or both, to the state and ordering disposal
in accordance with the provisions of Section 103.20 or Section
103.18(c) of this code.
Acts 1977, 65th Leg., p. 508, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.18. INTERVENTION BY SECURED CREDITORS. (a) In any
suit for forfeiture of proceeds in escrow from any sale of
illicit beverages or of property other than vehicles, or both,
seized under Section 103.03 of this code, any person who has a
security interest in any of the seized property may intervene to
establish his rights.
(b) An intervenor under the provisions of this section shall
have the burden of proving that he has a valid security interest
in the property and that he had no knowledge that the property in
which he has a security interest had been used or was to be used
in violation of this code at the time the security interest was
created.
(c) If an intervenor under this section establishes a security
interest and a lack of knowledge of unlawful use of the property,
the court, in the judgment forfeiting the property, shall issue
an order of sale directed to the sheriff or any constable of the
county in which the property was seized. The order shall command
the sheriff or constable to conduct a sale at the courthouse door
of all or part of the property, whichever the court considers
proper, in the same manner as personal property is sold under
execution.
(d) The proceeds of a sale under Subsection (c) of this section
shall be applied first to the payment of the costs of suit and
the expenses incident to the sale. After the costs of suit and
expenses of sale have been approved by the court that tried the
suit, any remaining proceeds shall be applied toward payment of
creditors secured by the property, according to their priorities.
After all secured creditors are satisfied, any remaining proceeds
shall be paid to the commission to be allocated in accordance
with the provisions of Section 103.23 of this code.
(e) If all intervenors under this section fail to establish a
valid security interest or lack of knowledge of unlawful use of
the property, the court, in the judgment forfeiting the property,
shall order disposal of the property in accordance with the
provisions of Section 103.20 of this code.
Acts 1977, 65th Leg., p. 509, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.19. TRANSFER OF SECURITY INTERESTS. All security
interests in property sold under this chapter shall be
transferred to the proceeds of the sale.
Acts 1977, 65th Leg., p. 509, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.20. DISPOSITION OF FORFEITED PROPERTY. (a) The
commission may sell property, other than proceeds in escrow,
forfeited to the state at a public or private sale in the manner
the commission considers best.
(b) If in the opinion of the commission or the administrator the
property is needed for the use of the commission, the commission
may retain and use the property until it is no longer needed, at
which time it shall be sold in accordance with Subsection (a) of
this section.
Acts 1977, 65th Leg., p. 509, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.21. BILL OF SALE TO PURCHASER. When executing a sale
under this chapter, the commission or the sheriff or constable
shall issue a bill of sale to each purchaser of property. The
bill of sale shall convey a valid and unimpaired title in the
property to the purchaser.
Acts 1977, 65th Leg., p. 509, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Sec. 103.22. COSTS OF FORFEITURE SUITS. The commission is
entitled to recover from the proceeds of a forfeiture sale all
costs of a forfeiture suit brought under this chapter, including:
(1) all usual court costs, including the cost of serving
process;
(2) expenses of the forfeiture sale; and
(3) reasonable attorney's fees.
Acts 1977, 65th Leg., p. 510, ch. 194, Sec. 1, eff. Sept. 1,
1977.
Amended by:
Acts 2005, 79th Leg., Ch.
1182, Sec. 9, eff. June 18, 2005.
Sec. 103.23. ALLOCATION OF PROCEEDS OF SALE. Proceeds from a
forfeiture sale and proceeds in escrow which are forfeited to the
state in a forfeiture suit shall be disposed of by depositing 35
percent of the proceeds in a separate fund in the state treasury
designated as the confiscated liquor fund and depositing 65
percent of the proceeds in the general revenue fund. The
confiscated liquor fund may be appropriated to the commission to
defray the expenses of accumulating evidence pertaining to
violations of this code; assembling, storing, transporting,
selling, and accounting for confiscated alcoholic beverages,
containers, devices, and property; and any other purposes deemed
necessary by the commission in administering and enforcing this
code. Any unexpended balance in the confiscated liquor fund at
the end of a biennium shall remain in the fund subject to further
appropriation for the same purposes.
Acts 1977, 65th Leg., p. 510, ch. 194, Sec. 1, eff. Sept. 1,
1977.