Untitled Texas Attorney General Opinion ( 1947 )

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THEATTORNEY GENERAL
OF TEXAS
PRICE DANIEL
ATTORNEYGENERAL
April 8, 1947
Hon. Augustinecelaya, Chairman
Liquor Regulation Committee
House of Rpresentatives
Aus tin, Texas Oginion No. V-134
Re: Conatitutfonality or
House Bill No. 118,
50th Legielature, re-
latite tomthe sale or
liquor to minors.
‘.
Dear, Sir:,
YOUi request ror an opinion upon the above
subject matter i6 at3 r0ilows:
“AS chairman 0r the Committee . on
Li uor Regulation, I will appreorate an
op Pnion as to the oonstitutionality or
House Bill 118 and amendments.
“1 am especially concerned ‘about
the change in the law in tha.t the,author
ha6 eliminated the word ‘knowingly’ from
Artiole 666-26(b).”
We have carefully examined Eouse Bill 118 or
the 50th Ceglelature and likwtW3 the kit10 thereto aa
ahown by eoml.ttee aneadmqit. T&r blfl purports.to a-
mend Arti .ols 666-26 or the Penal. code Or &he State or
Texas. This A.8 lnaocuratb and should be corrected ae
in the re-droftad f&eadaeat lthlah we have taken the
liberty to prepare and atteoh horrto.
The purpose of the Bill is to omit ‘the word
‘knowingly’ iro8tI that part Of the Texas LiQuor COnt??Ol
Aot whleh prohibits sale of certain liquors to pereons
under 21 years 0r age. Under the proposed bill, sale
to a minor would be an offense regardless of whether
the seller had knowledge of such non-age.
We note that you are neepecially concerned a-
bout the ohangr in the law in that the author has elim-
Bon. Augustine Celaya - Page 2 V-134
inated the word 'knowingly' from Artiole 666-26(b)."
The elimination of the word 'knowingly' does
not affect the validity of the act - it merely goes to
the merits of the bill, and presents a question solely
for the consideration of the Legislature.
Corpus Juris Seoundum Volume 22, Seotion 30,
announoes the general rule as follows:
n* * *e On the other hand, the Legis-
lature may forbid the doing of, or the fail-
ure to do an act and make its commission or
omission criminal without regard to the in-
tent or knowledge of the doer, and if such
legislative intention appears, the courts
must give it effeot, and in such cases, the
&i;E,of the inhibited act aonstitutes a
and the moral turpitude or purity of
the m;tive by which it was prompted, and
knowledge or ignorance of its criminal char-
acter, are immaterial circumstances on the
question of guilt; such legislation is enA
acted and is sustained;for the most part,
on grounds of necessity, and is not viola-
tive of the Federal Constitution. * * *e
In Pappas v* State, 188 5, W. 52, the Supreme
Court 0r Tennessee said:
“It being clear that in statutory of-
fenses a criminal intent or fraudulent in-
tent is not always eassntial, it Is equally
olear that whothor the soienter is a materi-
al element of the crime or not must be deter-
mined by the language used by the Legislature
in defining the effe21se.w
In Texas Liquor Control Board v. Duvall, 170 S.
W, (26) 820, involving a cancellation of a permit for em-
ploying a boy under eighteen years of age, it is said:
"The prohibited act of employing a
minor in a position fraught with tempta-
tions that may lead to a life of dissipa-
tion, is declared in unqualified terms,
unrelieved by any language importing that
knowledge of the age of the minor, or that
either good faith or intent was an element
Hon. Augustine Celaya - Page 3 v-134
of the offense. In authorizing the cancel-
lation of a license for the sporadic sale of
beer to a person under twenty-one years of
age, the ,same Article of the statute in Subd.
1 (a), provides that such sale must be ‘know-
ingly’ made; but with reference to the offense
of greater enormity, that is, of employing
a,minor in a business where he is constantly,
day after day, exposed to a temptation that
may result in his becoming an inebriate, no
such qualifying language is found.
“This construction of the statute is in
line with that given similar statutes, not
only by our courts but by courts of the coun-
In Peacock v. Limburger 95 Tex.
,“Fi ‘z6eri W 764 our,Supreme Co&t -
ing’eertiiiei queition, held that a ;a%?$
liquor to a minor constituted a breach of
the dealer’s bond, whether the seller knew
the fact of minority or not,* * *n
Justice Williams of the Supreme Court, writing
the opinion in Peacock vs. Limburger, 66 S.W. 764, said:
“The statute in force when the sale was
made (Rev. St. Art. 5060g; Aots 1893, p, 177)
required a bond on condition that the dealer
would not sell intoxicating liquors,. eta., to
any person under the age of 21 years, * * *
“The statute also gave to any person ag-
grieved by the violation of the provisions of.
the bond a right of action for $500.00, as lie
quidated damages. A proviso was to the effect
that ‘where the sale is made in good faith,
with the belief that the minor was of age, and
there is good ground for such belief, that will
be a valid defense to any recovery on such bond.’
The act of 1887 contained no such proviso, and
under its provisions it has been held by the
Court of Appeals -- correctly we think -- that
a sale of liquor to a minor constituted a breach
of the bond, whether the seller knew the fact
of minority or not. The reasons for the deoi-,
sion are so fully and satisfactorily stated in
the opinion of Judge Willson that a referenod
to it without further discussion of the point
there decided is suffioient. McGuire vs. Glass
(Tex. App.) 15 S.W. 127.”
Hon. Augustine Celaya - Page 4 V-134
SUMMARY
House Bill ll8, 50th Legislature, with
oorreoted aommittee amendment6 ,rllminating
the word "knowingly" rrom the offense or the
stile of 11 uor to'parsons under 21 ~years of
age (Art* %66-26 V. P. 0.) is oonstitutional.
Omission of the word "bowinglyn in defining
the orrense does not affeot the validity,of
the bill, going only'to the merits of the bill.
Yours very truly
ATTORNEY
GENERALOF TEXAS
&3ccL
BYOcie J$iL.- l
Speer
0S:lh:wb:mmo Assistant
APPROVED
APR 9, 1947
3i?.& esfL.2
ATTORNEY
GENERAL