Part 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
Subchapter A. APPLICATION PROCEDURES
The Texas Alcoholic Beverage Commission (commission or TABC) adopts new §33.10, regulating the citizenship and legal status of applicants for alcoholic beverage licenses and permits, with changes to the proposed text as published in the November 16, 2007, issue of the Texas Register (32 TexReg 8243).
Texas Alcoholic Beverage Code (Code) §§6.03, 11.46(a)(11), 61.42(a)(5), 61.42(a)(8) and 109.53 as they relate to the requirement that an applicant for a TABC license or permit be a Texas citizen, or a Texas corporation have been found unconstitutional in Southern Wine and Spirits v. TABC, Cause No. A-06-CA-720-LY, in the United States District Court for the Western District of Texas, Austin Division, Final Judgment, May 29, 2007. TABC is enjoined from enforcing those provisions. This rule is adopted to conform the commission's citizenship requirements to the Final Judgment.
Code §1.07, relating to resident aliens was not specifically addressed and found unconstitutional in the Final Judgment, however by a logical extension, to the extent §1.07 relates to the residency and citizenship requirement of resident aliens, or persons otherwise lawfully residing and working in the United States, the legal status of an applicant is also clarified by adoption of this rule.
The commission has received one comment from an individual on the proposed rule text and comments from agency staff. Changes to the rule text were made as a result of the comments.
Comment: Concerning §33.10(b) the commenter states that it appears that the commission is requiring all out-of-state companies, including non-resident manufacturers, non-resident sellers, and agents for manufacturing tier companies to be legally incorporated in the State of Texas.
Response: The commission agrees to the comment in part and disagrees in part and has changed the rule text to reflect the comment. The intent of the commission is to ensure that all individuals and legal entities to whom a license or permit is issued are authorized to work or conduct business in this state. For purposes of legal entities this requires that the entity be subject to the legal authority of the commission to regulate their operations within the state and be subject to legal process within the state. The rule has been changed to reflect that an entity must be either formed by filing a certificate of formation in this state, or is authorized to transact business in this state as a foreign entity by registering as a foreign entity under the laws of the State of Texas.
Comment: Concerning §33.10(b) agency staff indicated that the rule failed to include additional exceptions to the applicability of the rule. The rule has been changed to include these exceptions.
The new rule is adopted under the authority of §5.31 of the Alcoholic Beverage Code (Code), which authorizes the commission to adopt rules necessary to carry out provisions of the Code.
Cross Reference: Section 5.31 of the Code is affected by the adoption of the new rule.
§33.10.Citizenship and Status.
(a) An individual who applies for a license or permit shall, at the time of filing the application, be a United States citizen or legally authorized to work in the United States. The commission will not issue a permit or license to a person that will cause the person to be in violation of the person's immigration status and/or result in them being illegally in the United States.
(b) No permit shall be issued to a corporation, partnership, firm, association, or other legal entity, other than an individual, unless the entity is formed by filing a certificate of formation or registered to transact business in this state. This requirement does not apply to:
(1) An entity holding a brewer's permit, and other licenses and permits as are necessary to the operation of the brewer's permit,
(2) A holder of an agent's, industrial or carrier's permit, or
(3) A foreign corporation that was engaged in the legal alcoholic beverages business in this State under charter or permit prior to August 24, 1935.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 30, 2008.
TRD-200802285
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: May 20, 2008
Proposal publication date: November 16, 2007
For further information, please call: (512) 206-3204
Chapter 402. CHARITABLE BINGO ADMINISTRATIVE RULES
Subchapter B. CONDUCT OF BINGO
The Texas Lottery Commission (Commission) adopts new 16 TAC §402.210 (relating to House Rules), without changes to the proposed text as published in the March 7, 2008, issue of the Texas Register (33 TexReg 1948).
The purpose of the new rule is to set out the minimum requirements for house rules informing players in detail of how a licensed authorized organization will conduct its bingo games. Specifically, the new rule requires licensed authorized organizations to develop and adhere to its house rules, ensure that the house rules are consistently applied, and made available to anyone upon request. The new rule also provides that the house rules shall not conflict with the Bingo Enabling Act or the Charitable Bingo Administrative Rules.
A public comment hearing was held on March 20, 2008. There were no members of the public present at the hearing. No written comments were received during the public comment period.
The new rule is adopted under Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 30, 2008.
TRD-200802282
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: May 20, 2008
Proposal publication date: March 7, 2008
For further information, please call: (512) 344-5012
The Texas Lottery Commission (Commission) adopts the repeal of §402.406, relating to Exemptions from Licensing Requirements, without changes to the proposal as published in the February 1, 2008, issue of the Texas Register (33 TexReg 827).
The Commission is repealing the rule because the rule is no longer necessary as the Bingo Enabling Act does not require organizations to obtain Commission approval of exempt status.
A public comment hearing was held on February 6, 2008. No comments were made at the hearing regarding the proposed repeal. No written comments were received during the public comment period.
The repeal is adopted under Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 30, 2008.
TRD-200802280
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: May 20, 2008
Proposal publication date: February 1, 2008
For further information, please call: (512) 344-5012
The Texas Lottery Commission (Commission) adopts the repeal of §402.705, relating to Compliance Review, without changes to the proposal as published in the February 1, 2008, issue of the Texas Register (33 TexReg 827).
The Commission is repealing the rule because during Chapter 402 rule review, the Commission determined that there was no reason to readopt the rule. The rule's subject matter is now covered in §402.715 (relating to Compliance Audit).
A public comment hearing was held on February 6, 2008. One person, representing the Bingo Interest Group, commented at the hearing in favor of the proposed repeal. No written comments were received during the public comment period.
Comment: We understand that the repeal is a clean-up, based on a rules review, and that it just basically leaves in place the compliance audit rules that were done earlier, which we supported, and that this is redundant material, so we support this repeal.
Agency Response: The agency agrees.
The repeal is adopted under Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 30, 2008.
TRD-200802281
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: May 20, 2008
Proposal publication date: February 1, 2008
For further information, please call: (512) 344-5012