                    THE    ATTORNEY    GENERAL
                              OF TEXAS



.nm MAnox                      August 29, 1988
ATMRNEY   OENERAL


   Honorable W. S. McBeath                       Opinion No.   JR-948
   Administrator
   Texas Alcoholic Beverage Commission           Re:    Authority of the
   P. 0. Box 13127, Capitol Station              Alcoholic Beverage Com-
   Austin, Texas 78711                           mission to prorate club
                                                 membership for purposes
                                                 of determining   permit
                                                 fees for a private club
                                                 registration permit
                                                 (RQ-1432)

   Dear Mr. McBeath:

        Your request    letter describes    the   along-standing
   practice   of   the   Alcoholic   Beverage   Commission    of
   "prorat[ing] each member's membership for that portion     of
   the year during which he or she was a member" for purposes
   of calculating the permit fee due from private clubs ~issued
   permits under chapter 32 of the Alcoholic Beverage      Code.
   you ask whether the Commission is "presently authorized    or
   required to continue" this practice.

        Section 32.02 of the      Alcoholic Beverage Code        provides
   in part:
                                  .
                (b) The permit fee shall be based on the
            hiuhest number    f m mbers in good standing
            during the year Tar zhich permit fee is to be
            paid according to the following rates:

              0   to   250--$ 750        651 to   750--82,250
            251   to   350--$1,050       751 to   850--$2,550
            351   to   450--$1,350       051 to   950--$2,850
            451   to   550--$1,650       951 to l,OOO--$3,000
            551   to   650--$1,950 Over l,OOO--$3 per member.

               (c) All fees collected pursuant to this
            section shall be deposited in the general
            revenue fund.




                                    p. 4784
Honorable W. S. McSeath - Page 2     LX-9481




           (d) No later than 90 days before the
        expiration of the year for which the permit
        fee is paid, the permit holder may submit an
        amended application with as much additional
        fee as is required under the amended return.
        (Emphasis added.)

        The commission's request as to the propriety of contin-
uing its practice         of prorating membership for determining
permit fees was apparently prompted by arguments of persons
in the State Auditor's office that permit          fees should be
based on the hiahe t n mber of members during the year
pursuant to subsectik         (E) of section 32.02, and not on a
DrOrated     UM3mberShi.D    ficure, the latter method    possibly
resulting in a loss-of rGvenue legally due to the state from
the permitting process.

     The commission   in its request letter        has advanced
arguments in support of its continuing the         proration of
membership method   of fee calculation, which      arguments we
summarize as follows:

     Prior to 1971, and prior to the codification in 1977 of
the Alcoholic Beverage Coded,.the Texas Liquor Control Act
provided that permits   of the sort issued to private   clubs
expired on the next August      31 following   the dates of
issuance.   Penal Code art. 666-13(a),      (repealed); art.
666-15e(6), (repealed).    At that time, article    666-15(b)
provided that if a fee was %ollected   for a portion of the
year" . . . "only the proportionate part of the fee levied
for such permit shall be collected.*q Also, article 666-15e,
applying specifically   to private club permits,     required
proration of private  club permit fees pursuant to article
666-15(b).

     In 1971, article 666-13(a) was amended to     provide  that
all permits expired one year from the date         of issuance.
Acts 1971, 62d Leg., ch. 65, 5 7, at 686. But      the proration
provisions of articles 666-15(b) and 666-15e,      cited above,
were not amended or repealed at that time.

     In 1977, the provisions of the Texas Liquor Control Act
were repealed and many of its provisions    codified as the
Alcoholic Beverage  Code. Acts   1977, 65th Leg., ch. 194.
The provision that all permits expire one year from the date
of issuance became,   at that time, section 11.09 of the
Alcoholic Beverage Code. The' proration provisions of former
articles 666-15(b) and 666-15e were, however, omitted   from
the new code. The revisor's note, appearing after section
11.71 of the Alcoholic    Beverage Code, states that the




                               p. 4785
Honorable W. S. McBeath - Page 3   (JM-948)




proration provisions were omitted in the code because    the
1971 amendment providing that permits expire one year from
the date of issuance made the proration provisions obsolete.

     The commission argues that "since 1962, some nine years
prior to the 1971 amendments and fifteen years before      the
codification of the Texas Alcoholic Beverage Code," it has
followed the practice     of prorating memberships    for fee
determination purposes.     It argues, in effect,    that the
proration provisions,    which were not repealed until    1977
with the adoption of the Alcoholic Beverage Code, have auth-
orized its practice of prorating membership and that since
those provisions were *'substantive," their omission from the
Alcoholic Beverage Code was due to an error of the revisors.
In light of provisions in the code, in the act adopting    it,
and in the Government Code, to the effect that the Alcoholic
Beverage Code was only non-substantive revision      of prior
law, the commission    argues, in effect, that the proration
provisions, being substantive,    constitute still subsisting
law authorizing    the    commission*s  membership   proration
practice.  See, Alto. Bev. Code 5 1.01(a); Acts 1977, 65th
Leg., ch. 194, 5 7, at 558; Gov't Code g 323.007(b).       The
commission also argues that the long-standing practice      of
the commission, based on its construction of the provisions
discussed above, supports such construction, particularly in
view of the non-intervention of the legislature over that
time, citing,   inter alia    Stenhens COUntv  v. Hefner,  118
Tex. 397, 16 S.W.2d 804'(Tex. Comm'n App. 1929, opinion
adopted).1

     We disagree with the commission's position.  "The rule
that a departmental   ruling adhered to through    years of
administering a statute will be given weight, only applies
to statutes    of   doubtful   construction.l'   ~A11
Associated Retail Credit Men of Austin, 41 S.W.!d 45Um(Tez:
Comm'n App.  1931).   We do not find that the provisions
governing calculation  of club membership for purposes   of
assessing a permit fee have ever supported the construction
placed on them by the commission in adopting its proration
method of calculating the number of members, and thus, the
amount due for the permit fee.




     1. The commission    notes that separate  substantive
amendments to the Liquor Control Act in 1977 left the
proration provisions unchanged. Acts 1977, 65th Leg., ch.
453.




                             p. 4786
Honorable W. S. McBeath - Page 4    (JX-948)




       The provisions  for issuance of private    club permits
were first adopted    in 1961, and that legislation made the
substantially identical provision,     that calculation of the
fee is based on "the highest number of members         in good
standing during the year," as is currently made in section
32.02 of the Alcoholic Beverage Code. Acts 1961, 57th Leg.,
ch. 262, § 1, at 560. We believe that even in 1961, when
the proration provision of repealed article 666-15(b) was in
effect, the proration provision had no applicability to the
calculation of a club's membership.       Article 666-15(b)  on
its face provided only for proration of the fee where a fee
was collected    for a portion   of a year. We believe      the
commission's adoption of a practice in 1962 of proratina the
nEmberShiD   was unwarranted by any logical reading of the
controlling provisions,    particularly   since the provision
which is now section 32.02 cf the code has provided       since
its inception in 1961 that the fee "shall be based on the
hiahest number of members."

     We do concede that not all of the     provisions   of the
Alcoholic Beverage  Code are models of     clarity.     Section
32.16 provides, for example:

           No private club registration permittee may
        allow its averaae membership to exceed that
        authorized by its permit.   (Emphasis added.)

     It would appear somewhat anomalous to have provided  in
section 32.02 that the permit fee is based on the hiahest
number of members, but in section 32.16 that a permittee may
not allow its averaae membership to exceed that authorized
by the permit. However, section 32.16 is not applicable   to
the fee calculation under section 32.02. It appears,   rath-
er, to operate in conjunction with section 32.17, subsection
(a)(S), which provides  that a permit may be cancelled    or
suspended on a finding that the permittee club has violated
any provision of the code.    EiSSalso  section 1.05 of the
code providing criminal penalties for a violation of a pro-
vision of the code.)

     We also concede that the fee assessment      provisions
themselves present certain administrative difficulties   for
the commission.. Subsection (b) of section 32.02 indicates
on its face that "[t]he permit   fee shall be based on the
hiahest number of members in good standing during the year
for which the permit fee is to be paid." A permit    expires
one year after the date it issued. Alto. Bev. Code 5 11.09.
However, since the fee is payable in advance at the time of
the application  for a permit or renewal permit     (section
11.35), the calculation  of the fee "based on the highest



                              p. 4787
,


    Honorable W. S. McBeath - Page 5   (JM-948)




    number of members . . . during the year for which the permit
    fee is to be paid" is necessarily        only an estimate.
    Subsection (d) of section 32.02, providing      for "amended
    applications" no later than ninety days before a permit's
    expiration, somewhat but not entirely mitigates the problem
    of assessing a fee based on the highest number of members
    during the year since the membership cannot be ascertained
    with certainty until the nn8 of the year in question.    The
    commission has informed us that it has found the subsection
    (d) amendment procedure insufficient for determining  actual
    amounts due on permit fees under subsection (a), because the
    membership might change after submission    of the amended
    application, and because the procedure     led to frequent
    overpayment of fees.   Amounts overpaid,  once deposited   in
    the general revenue fund, could not be reimbursed    without
    legislative action. Tex. Const. art. VIII,     9 6.  Similar
    administrative problems exist under the present procedure.

         The commission informs us that, instead of following
    the subsection   (d) amendment procedure, it has relied on
    routine audits of licensees once accurate membership figures
    are available at the end of the permit year. However,    the
    method of calculation     used, even in such audits,     for
    determining club membership for purposes of fee assessment
    has apparently been the membership proration method referred
    to above rather than one determining the hiahest number of
    members during the year pursuant to the language          in
    subsection (b).2

         But again, even granting that the fee assessment
    provisions present  administrative difficulties,  we do not
    believe that those provisions    are or have been ambiguous
    such that the board was warranted       in construing    the
    requirement of section 32.02(b), that the fee "shall be
    based on the highest number of members,"    as authority  to
    base the fee determination on a prorated membership figure.




         2. Please note that we do not address, because you do
    not raise, any issues with respect to the operation of the
    amendment  procedure  provided  for in subsection     (d) of
    section 32.02 or with respect to the commission's   practice
    of determining additional fees due by use of a routine audit
    rather than the amendment procedure.




                                 ~7.4788
Honorable W. S. McBeath - Page 6     (JM-948)


                                                                    .-,


                       SUMMARY

           The Alcoholic Beverage Commission is not
        authorized to prorate private club membership
        for purposes  of determining  the permit   fee
        under Alcoholic Beverage Code section   32.02.
        Under section 32.02, the permit fee is based
        on the hj,g&&    number of members    in good
        standing during the year for which the permit
        fee is to be paid, rather than on a prorated
        membership figure.              .




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LCUMCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




                              p. 4789
