Untitled Texas Attorney General Opinion

Gerald C. Mann
Hon. Bert Ford Opinion NO. o-ho63
Administrator,
Texas Liquor, Control Re: Under the facts ,submitted can a
Board complaint legally be filed and tried
Wstin, ~Texas in thee dry area where the offense
takes place within’ another county which
“is a wet area but ,wlthin 400 yards of
the dry area county line? And a re-
Dear Sir: lated ,question.
Your letter of March 11, 1943, supplementing your let-
ter of February 23, 1943, regarding the above mentioned ques-
tions reads in part as follows:
II. . . .
“The facts are as follows, to-wit:
“Defendant was arrested in Howard County, a
wet area, but within four hundred yards of the
Mitchell County Line, Mitchell County being a dry
area. An inspector of the Texas Liquor Control
Board filed a complaint in Mitchell County ,against
the, defendant ‘charging him with the transportation
of liquor in a wet area without the proper permit.
Wection 4(a), Article 1, Texas Liquor Con-
trol ilct reads as follows:
“IIt shall be unlawful for any person to manu-
facture, distill., brew, s,ell, possess for the pur-
pose of sale, import into this State, export from
the State, transport; distribute, warehouse, store,
solicit, or take orders for, ‘or for the purpose of
sale to bottle, rectigy, blend, treat, fortify, mix,
or process any liquor in any wet area without first
having procured a permit. t
“Qrticle 190 of the Court of Criminal Proced-
ure reads asfollows:
‘Ilg, offense committed on the boundary of any
two counties, or within four hundred yards thereof,
may be prosecuted and punished in either county.’
“Your valued opinion is requested on the fol-
lowing matters:
- I
Hon. Bert Ford, page 2 (oA063)
"1. Can the above mentioned complaint which
was filed in Mitchell County, a dry area, be le-
gally tried in the said county, charging that the
offense took place in the adjoining County of Howard
a wet area, but within four hundred yards of Mitcheli
County line.
“I refer you to the case of Talley versus State,
147 S.W. 255, which would indicate that the law must
have the same application in both counties and under
the above stated facts and law quoted it is doubtful
that the law does apply the same in a wet area as in
a dry area.
“2. If the above mentioned complaint cannot be
legally tried in Mitchell County, then could a com-
plaint be legally filed and tried in Mitchell County
County under the same fact situation as outlined
above, but, instead of charging defendant with trans-
porting liquor without a permit, but charging him
with violating Section 27(a) of Article I, Texas
Liquor Control Act which reads as follows:
“‘It shall be unlawful for any person to trans-
;;,rzepto this State or upon any public highway,
or alley in this State any liquor unless the
person’accompanying or in charge of such shipment
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 destina-
tion of such shipment, and such other information as
may be required by rule and regulation of the Board.
It shall be the duty of the person in charge of such
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 offi-
cer making demand therefor, and it shall be unlawful
for any person to fail or refuse to exhibit the same
upon demand. Such written statement shall be ac-
cepted by such representative or officer as prima
facie evidence of the lawful right to transport such
liquor. I
“In the above fact situation we might further
add that the defendant possessed neither a permit or
written statements as contemplated by the Texas Li-
quor Control Act. ”
. -
Hon. Bert Ford, page 3 (0-4063)
Paragraph (b) of &rticie 666-4, Vernon’s Annotated
Penal Code provides:
“It shall be unlawful for ;any person in any
dry area to manufacture, ,distill, ,brew, sell, pos-
sess for the purpose of sale, import into this
State, export from the State, transport, distrib-
ute, warehouse,‘store, soliait or take orders for,
or for the purpose of sale to bottle, rectify,
blend, treat, fortify, mix, or process any liquor,
distilled spirits, whiskey, gin, brandy, wine, rum,
beer or ale.”
Article 66&23(a), Vernon’s Annotated Penal Code pro-
Vi.des in part:
"(1). It is provided that any person who pur-
chases alcoholic beverages for his own consumption
may transport same from a ,place where the sale
thereof is legal to a place where the possession
thereof is legal.
*,
“(2). Possession of more than one quart of
liquor in a dry area shall be prima facie evidence
that it is possessed’ for the purpose of sale. As
F;nded Acts 1937, 45th Leg., 1st C.S., S.B. #20,
.
“(3). It is provided that it shall be lawful
for the holders of Carrier’s and Private Carrier’s
Permits to transport liquor from one wet area to
another wet area where in the course of such trans-
portation it is neoessary or convenient to cross a
dry area.
” , . ., . ”
It will be noted that under paragraph (a), Article
666-4 to transport any liquor in any wet area without first hav-
ing procured a permit is unlawful. It will be further noted
that under paragraph (b)~, 4rticle 666-4 that it is unlawful to
transport any liquor, distilled spirits, whiskey, gin, brandy,
wine, rum beer or ale in a dry area. It is our opinion that
titicle 6&6-23(a), supra, is a defensive statute designed to af-
ford one accused of transporting liquor in violation of para-
graph (b), Article 666-4, a complete defense against the charge
so made. In other words upon the accused making proof that he
was transporting alcoholjc beverages for his own consumption
from a point of purchase to a given destination, his innocence
would be established. Also where a holder of a carrier’s permit
Hon. Bert Ford, page 4 Co-4O63b
or a private carrier’s permit was charged or accused of trans-
porting liquor in violation of paragraph (b) of Article 666-4,
upon the accused making proof that he was transporting liquor
from one wet area to another wet area where, in the course of
said transportation, it was necessary or convenient to cross a
dry area would be a complete defense against the charge so
made. We do not think that the offense of transporting liquor
in a wet area without a permit and the offense of transporting
liquor in a dry area are the same offenses. Therefore, it is
our opinion that your first question should be answered in the
negative and is so answered. (See the cases of Talley,v.
State, 147 S.W. 255 and Lancaster v. State, 147 S.W.(2) 476.)
In other words, before the party mentioned could be prosecuted
in Mitchell County for an offense committed in Howard County
but within four hundred yards of the county line, the offense
that the accused was charged with would have to be the same in
both counties.
With reference to your second question, we direct your
attention to our opinion No. O-1882 construing paragraph (a) of
Article 666-27, Vernon’s Annotated Penal Code. We quote from
this opinion as followst
“We think this section has reference to shipment
of liquor, as that term is ordinarily used and under-
stood, as where a person orders liquor and it is de-
livered to him either by common carrier or agent for
the consignee or aonsignor. It is our opinion that
the same is not applicable to the situation presented
by your statement of facts.”
We think that the above mentioned opinion (No. O-1882)
answers your second question. As this opinion was addressed to
you we are not enclosing a copy of the same.
Yours very truly
APPROVED MAR17, 1943
/s/ Grover Sellers KTTORNEY
GENERAL
OF TEXAS
FIRST ASSISTANT
ATTORNEY GENERAL By /s/ Ardell Williams
Ardell Williams, Assistant
APPROVED:OPINION COMMITTEE
BY: BWB, CHAIRMAN
AW:mp:wb