Untitled Texas Attorney General Opinion ( 1947 )

Hon. H. H. Smith Opinion No. V-88
County Attorney
carson county Re: Clarification of Article
Panhandle, Texas 666-27 (a), Vernon's Penal
Code, regarding transport-
ing alcoholic beverages.
Dear Sir:
Your letter of November 21, 1.946, requesting the opin-
ion of this department on the questions stated therein reads in
part s.6follows:
II
. . .
"(a). To what class or classes of transport-
ers does subsection (a) of the aforesaid Article
666-27, Penal code, apply? That is, does it apply
to public carriers, private carriers, or those trans-
porting for their own personal uss, or to all trans-
porters alike7
'l(b). Is it in violation of subsection (a) of
Article 666-27, Penal Code, for a person to trans-
port whiskey or other alcoholic beverage, for his
own personal consumption, from a place where the
sale thereof is legalto a place where the posses-
sion thereof is legal, without having in his pos-
session and available the statements required in
subsection (a), Article 666-27, above quoted?
"(c). Is there any limit as to the quantity of
whiskey or other alcoholic beverages which one might
transport before being required to have in his poS-
session and available the statements above referred
to? In other words, would the transportation of a
pint or a quart require the statement the same as
would a much larger quantity?"
Paragraph (a) of Article 666-27, Vernon's Penal Code,
provides:
.
Hon. H. H. Smith, Page 2 (V-88)
"It shall be unlawful for any person to trans-
port into this State or upon any public highway,
street, or alley in this state any liquor unless
the person accompanying or in charge of such ship-
ment shall have present and available for exhibition
and inspection, a written statement furnished and
signed by the shipper, showing the name and address
of the consignor and the consignee, the origin and
de&nation of such shipment, and such other infor-
mation as may be required by rule and regulation of
the Board. It shall be the duty of the person in
charge of this shipment while the same is being
transported, to exhibit such written statement to
the Board or any of its authorized representatives
or to any peace officer making demand therefor, and
it shall be unlawful for any person to fail or re-
fuse to exhibit the same upon such demand. Such
written statement shall be accepted by such repre-
sentative or officer as prims facie evidence of the
lawful right to transport such liquor." (Emphasis
added.)
In regard to your question (a), we think that a cor-
rect construction of Article 666-27 (a), Vernon's Penal Code, in
view of the parts which have been emphasized, supra, is that the
Legislature intended it to apply only to shipments or consign-
ments of liquor. Thus we are 'ofthe opinion that this Article
applies to common carriers, private carriers, or to any person
who is transporting for .another,and does not apply to a person
who is transporting liquor for his own personal consumption.
The language used in this Article precludes the possibility of
its application to a person who is transporting such liquor for
his own personal use, as in such case, there would obviously not
be a "shipper," nor would there be a "consignor" or "consignee."
In answer to your question (c), regarding the quantity
of whiskey or other alcoholic beverages which one might transport
before being required to have in his possession the statement pro-
vided for in Article 666-27 (a), Vernon's Penal Code, we wish to
say that after a careful search of the authorities, we are of the
opinion that, if there is a shipment or consignment as we have re-
ferred to above, the provisions of this Article must be complied
with regardless of the amount of liquor being so transported or
shipped. In this connection, see Fields v. State, 174 S.W.(2d)
733, which was an appeal from a conviction for the unlawful trans-
portation of intoxicating liquors on a highway under Article 666-
27 (a), Vernon's Penal Code. In this particular case, there was
involved twenty-three one-halfpintbottlesof whiskeyand six gallons
., .
Hon. H. H. Smith, Page 3 (v-88)
of wine, but the Court of Criminal Appeals in an opinion by
Judge Graves, stated:
'The sole ground of defense is that it is not
unlawful to transport liquor in this State unless
more than a quart is thus transported. We do not
think the statute is subject to such construction
. . . .t,
The above comments would cause your questions(b) to
be answered in the negative. However, we call your attention
to Article 666-4 (a), Vernon's Penal Code, which deals with un-
lawful transportation of liquor in a wet area without a permit,
and to Article 666-4 (b), Vernon's Penal Code, dealing with the
unlawful transportation of liquor in a dry area. Such sections
provide as follows:
.'"(a). It shall be unlawful for any person to
manufacture, distill, brew,~ sell, possess for the
purpose of sale,,import into this state, export from
the state, transport, distribute, warehouse, store,
solicit orders,for,take orders for, or for the pur-
pose of sale to bottle, rectify, blend, treat, forti-
fy, mix, or process any liquor in any wet area without
first having procured a permit of the class required
for such privilege."
"(b). It shall be unlawful,for any person in
any dry area to manufacture, distill, brew, sell,
posses% for the purpose