Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Honorable R. O. Oswalt County Attorney Wilberger County Vernon, Texas

Dear Sir:

Opinion No. 0-5400 Re: Illegality of transportation of beer from Oklahoma to Texas without having Texas beer tax stamps of fixed thereto and related matters.

Your request for opinion has been received and carefully considered by this department. (We quote from your request as follows:

"On the 2st day of June, 1943, the voters of Wilberger County voted on the question of whether or not the sale of beer should be prohibited in Wilberger County, which resulted in favor of the prohibition of the sale of beer in said County. The Commissioners find order putting said election in effect because effective July 7, 1943.

Wilberger County is a border county to the state of Oklahoma, and in which State beer may be purchased legally.

"Article 667-23 (C) requires that beer imported into this state shall have the Tax Stamp affixed and cancelled, etc.

"Please advise whether or not it would be unlawful for resident of Wilberger County, Texas, to go to the State of Oklahoma and purchase a case of beer for his own personal use, and transport the

*2

Honorable R. O. Oswalt, page 2

same to wilberger County, Texas, without having Texas tax stamp affixed to the carton and eancollod?"

Artiole 667-23, Vernon's Annotated Texas Penal Code, reads in part as follows: "Art. 667-23, Deer tax; stamps "(a) There is hereby levied and asseased a tax at the rate of one Dollar and twenty-four Cents ( $\$1.24$ ) per barrel on all beer sold, stored, dis. tributed, transported, or held for the purpose of sale in this state whether manufactured in or im. ported into this state. Said tax shall be paid and ovidened by plecing stamps, which the state Treasurer is berein authorized to provide in the denominations required, on each original package as defined in this article; provided, further that at the time said stamp is affixed the person affixing the stamp shall with indelible ink or stamp oancel the same by plecing the date and the licensee's full name or initials upon said revenue stamp. "(b) It is the purpose and intent of this Act to require the tax to be paid and the stamp ovideneing same to be affixed on the first sale, distribution, storage, or transportation and at the source, to the ond that it will preclude any person ovading the payment of this tax. Any person in possession of beer that has not been atemped in accordance with the provisions hereof shall be held to be in violation of this Article and liable for the taxes herein provided and the penalties for such violation. "(c) On beer imported into this state the duty of payment of the tax and affixing and eancolling the stamp as required herein shall rest primarily upon the importer, and it is hereby deolerod to be unlawful to import beer into this state unless and until said tax has first been paid and the stamp

*3 Honorable R. O. Oswalt, page 3 evidencing such payment has been first affixed and eanoalled as required by this Act. . . . " (f) It shall be unlawful to transport to destinations in this state any beer upon which tax has not been paid and such payment evideaceed by atampe affixed and eanoalled as required by law. - - " (Underscoring ours)

Article 667-26, Vernon's Annotated Texas Penal Code, reads in fart as follows: "Art. 667-26. Fenalty "Any person who violates any provision of this Article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Twenty-five ( $\$25.00$ ) Dollars nor more than Five Hundred ( $\$500.00$ ) Dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.

$$\text{".}·\text{. . ."}$$

The case of McChristy v. State, Texas Court of Criminal Appeals, 134 E. W. (2d) 295, holds among other things that the penalty provided in Article 667-26, V. A. P. C., applies to the offense of possessing beer in an unstamped container in violation of Article 667-23, V. A. P. C.

It is our opinion under the facts stated the transportation and importation of unstamped beer (without having the proper Texas beer tax atamps affixed to the containers) from Oklahoma to Texas would be in violation of Article 667-23, V. A. P. C., supra, and subject to the penalties provided by said article and by Article 667-26, V. A. P. C. It would also be a violation of law for the wilberger County citizen to possess in Texas such unstamped beer under the facts stated. In this connection, see McChristy v. State, supra.

The fact that the wilberger County citizen imported, transported and possessed the unstamped beer for his own

*4

Honorable R. O. Oswelt, page 4

personel use as a beverage would not be a lawful defense to the charge of unlewful importation, transportation or possession of unstamped beer. Suoh a defense would be pertinent however if the citizen was merely charged with unlawful possession of beer for the purpose of sale in dry territory.

Very truly yours ATTORITY GENERAL OF TEXAS

By (a) Wm. J. Fanning Assistant

WJF:db/JCP

APPROVED (II. 23, 1943 (a) Gerald C. Mann

ATTORNEY GENERAL OF TEXAS

APPROVED OPINION COMMITTEE BY B. W. B. CHAIRMAN