Untitled Texas Attorney General Opinion ( 1939 )

/ , v Karoh f!S, 1939 Honorable Homer L. w38 County Attorney Shs&lsr County ~‘tieeler, Texas &ear Slr: opinion no. o-431 Re; Is A rervant or esployee of a wine and beer retailer su'b- jeot to the penalties provided lo the Liquor Control hot for selling beer to an intoxloated person? Your request for an opinioh CD. the abok stated questIon has been reoelved by this offioe. Artials 667-19 of the Penal Code reado In part as follows: “The Board or Administrator shall have the power and authority to oanosl the license of any person authorized to sell beer after notioe and hearing as herein provided upon finding that the llocasa’c has: 1. Ii a Retailer: (a) Knowingly sold beer to an p&son under tha 8T.e of twenty-one (8.l f years; or (b) Sold beer to any person showlne evidence or lntoxlcatlon; or (a) Sold beer during any hours when suah sale war forbidden by law; or . . . . . . . . ..I . Honorable Homer L. Uoaa, rbrch 25, 1939, page 2 -Any a*:t 0r omlaalon or c0mmlaalon enum- erated herein as cause for the cancellation or auapenalon of any type or lloenae shall also be a violation of this Act and subject to the pen- alties provided ln Section 26 of thla Article, provided, however, the penalty ror the making or any ralae or untrue statements in any appllcatl0n ror licneaea or In any statement, report, or other instrument to be filed with the Boerd and which is required to be awofn to shall be as la provided in Section 17 (a) - (2) of Article 1 oi this Act.” Article 667-26 of the Penal Coda provides, in part: “Any person who violates any provision of this Article shall be deemed guilty of a mi&Mneaoor and upon conviction shall be unlshed ,by a rloe of not leas than Twenty-five P#eS.OO) Dollars nor more than ylve Hundred (&OO.OO) Dollars or by imprisonment in the county jail for not xore than one year, or by both such fine and lmprlaonmcnt.n Section R and Section H of Xrtlele 667-l of tha Penal Code reads as follows: n . ..(b) The term “beer* means a malt beverage eontalnlng one-hali of one per cent or more of alcohol t& volume and not more than four (4) ger cent of alcohol by weight, and shall not be inelusive of any beverage deblgnated by label or otherwise by any ottfer name than beer. . ..(h) The tek *person” shall mean and rerar to any natural person or aaaoclatlon of natural poraona, trustees, receiver, partnership, car-. poratlcn, organltatlon, or the zanager, aPent, aervcnt, or employee of any of them.” - Fe must bear in mind that the proeeedlnga for the caneellatlon or suspension of any t:,ve of license under Section 2 of the Texas Liquor Control Act la ofaa olvll nature rather than a orlmlnal prooeedlng, and that a crlm- Xionorebla Scmer L. Moss, Perch 25, 1969, pe2e 2 ina procedl~ end a proceeding for eancellatlon or aua- pension or aoj tppe oC lleenae under Article 667-19 of the Penal Code am reparate and dlatlnct proceedings. !7owavar, any of the arlta of omission or ccamiasioB enrrnrsratod in ,irtiale 669-19 aupra, as cause for.the cancallatlon or cua- pension of any type of llcenao la also made a erlmlnal orrenae subject to tha penalties provided in 669-26 or the Penal Coda by the apeclflcationa of Article 667-19 ot the Penal Code. Takhg into conal4eratlon the tern ‘person* as defined by Sectlon 8, Article 669-l and the language used in Article 667-26 ot the Penal Code, we must conclude that any parson comln(l vlthln tha.deflnltlon set forth in Section H, Article 66701 of the Penal Coda, who ~lclatea any o? the provlalona ot Article 669-19 of the Penal Cede would be aub- jact to the prosecution under the statute subject to the penaltlea prsaorlbed by Xrtlcle 669-26 of the Penal Code. In vl.ew ot the forego&u&g statute, you are reapect- fully advised that it la the opinion of this department that any eervant or enployae of a n4ne and beer retailer who sells beer to au lntorlcated person is subject to proaeoutlon under Articles 667-19 and 667-26 of the Penal Code. .- Truatlce that the fortgoing answers your inquiry, we rs.naln Yours very truly ‘ATTORupT~GKICXhLOY TEXAS ‘By @4ucd& Ardell l%lllama ’ Xaalatant a\?:: bbb