Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS ATTORNEY GENERAL Honorable John T. Eutshison County Attorney Lamay County Paris, Texas Dear Sir: Opinion No. 0-7480 Be: Which Articles of the Penal Code govern punishment for possession of illisít unstamped beer, dis- tilled spirits, liquor, vine and vine. and vincus liquors, and malt liquor containing alcohol in excess of 4% by volume?

This acknowledges receipt of your letter of recent date, which reads: "I should be very grateful if you will advise me as to whether punishment for possesaking illisít unstamped liquor or beer in est out in section 41 of Article 666, Penal Code or whether the punish- ment for said offence is not out under section 21, sub-section 7, Article 666, Penal Code." Article 666-3a, V.A.P.O., provides in part: "Aleccholic Beverage! shall mean aiechol and any beverage sontaining more than one half of one per cent by volume which is capable of use for beverage pur- poses, either alone or other diluted. "Illisith Beverage! shall mean and refer to any alcoholie beverage . . possessed . . . in violation of this Act, or on which any tax imposed by the laws of this State has not been paid and the tax stamp af- fixed thefotor . . ."

Article 666-17, V.A.P.O., provides in part: "(12) It shall be unlawful for any person to have in his possession . . . any illisít beverage."

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Honorable John F. Futhbison - Page 2

As to 1111e1t unstamped beer:

Artie1e 667-1, V.A.P.O., providea in part:

"(b) The term 'beer' means a malt beverage containing one half of one per cent or more of aleohol by volume and not more than four per cent of aleohol by veight, and shall not be inclusive of any beverage designated by label or otherwise by any other name than beer."

Artie1e 667-23 V.A.P.C., providea in part:

"(b) Any person in possession of beer that has not been atamped in accordance with the provisions hereof shall be held to be in violation of this Article and liable for . . . the penalties for such violation."

Artie1e 667-26, V.A.P.O., providea:

"Ocaviation upon oriminal prosecution for any violation of this Article shall require assessment of penalty or penalties as provided in Section 41, Article 1 (Article 666) of this Act." (Words in parentheses added).

Article 666-41, V.A.P.O., providea:

"Any person who violates any provision of the Act for which a specific penalty is not provided shall be deemed guilty of a misdemeanor and upon conviction be punished by fine of not less than $\backslash$ 100 $andnotmorethan$ \ $1000$ , or by imprisonment in the County jail for not more than one year, or by both such fine and imprisonment. "The term 'specifie penalty' as used in this Section means and refers only to a penalty which might be imposed as a result of a criminal conviction."

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Roperable John 9. Eutobigea - Page 3

Since we find no speolfie penalty for a violation of Arliele 667-23, it is the opiaion of this department that the pumishment for the possession of 1111 eilt unstamped beer is controiled by Article 666-41. See also MeGhriaty v. State, 134 s. W. (2d) 295, revered on other grounds in 145 s. W. (2d) 872.

As to 1111eit uastamped distilled spirits, liquor, vina and vinous liquor and malt liquor sontaiaing alcohol in exoes of four per cent by veight:

Article 666-3a, V.A.P.O., provides in part: "Distilled spirits' shall mean aioohol, spirits of vina, whileey, rum, brandy, gin, and any liquor produced in whole or in part by the procese of distillation, including all dilutions and mixtures thereof. "Liquor' shall mean any aieoholic beverage containing aieohol in exoes of four per centum by veight, unle as otherwise indieated. "Wine and vinous liquor' shall mean the produet obtained from the aieoholic fermantation of juice of sound ripe grapes, fruits, and berries.

Article 666-21, V.A.P.O., provides in part: "There is hereby levied and imposed on the first sale in addition to the other fees and taxes levied by this act the following: "(a) A tax . . . on each gallon of distilled apirits. "(b) A tax . . . on each gallon of vinous liquor that does not sontain over fourteen per cent of aieohol by voluwe. "(c) A tax . . . on each gallon of vinous liquor containing more than fourteen per cent and not more than treaty-four per cent of aieohol by volume. "(d) A tax . . . on each gallon of artificial carbonated and natural sparkling vinous liquor.

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Eonorable foth 7. Butchison - Page 4

" (e) a tax . . . on each gallon of vinous liquor containing a!cohol in excess of four per cent by veight. "f) a tax . . . on each gallon of malt liquor con- taining a!oohol in excess of four per cent by veight. "The tax herein paid shall be paid by affixing a stamp or stamps on each bottle or container of liquor. "Any person, persons, or association who violates any portion of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $\backslash$ 100 $normorethan$ \ $1000$ , or by imprisonment in the county jail for not less than thirty days nor more than one year."

Thus, Article 666-21 deals solely with taxes and stamps on distilled spirits, liquor, ot cetera, and that Article also provides specific punishment for violation of its provisions. It is, therefore, the opinion of this department that the punishment for possession of illicit ansteaped distilled spirits, liquor, vime and vinous liquor, and malt liquor containing a!oohol in excess of four per cent by veight, is controlled by Article 666-21. See also McGhriaty v. State, cited supra.

We trust that the foregoing fully answers your questions.

WES 12d