Case Information

*1 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, 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, the State, import into this State, export from

transport; distribute, warehouse, store,

solicit, for, ‘or for the purpose of sale to bottle, rectigy, fortify, mix, or process any liquor 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: *2 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 offense in the said county, charging that the

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- liquor without a permit, but charging him with violating Section 27(a) of Article Liquor Control Act which reads as follows: I, Texas

“‘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- and it shall be unlawful cer making demand therefor, 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 for, or for the purpose of sale to bottle, rectify, 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- .des in part: Vi

"(1). It is provided that any person who pur- chases alcoholic beverages for his own consumption may transport thereof same from a ,place where the sale

is legal to a place where the possession thereof is legal. *,

“(2). Possession of more than one quart of in a dry area shall be prima facie evidence that it is possessed’ for the purpose of sale. As F;nded Acts 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 from one wet area to another wet area where in the course of such trans- portation it is neoessary or convenient

dry area.

” , . ., . ”

It will be noted that under paragraph (a), Article 666-4 to transport any liquor 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. is a defensive statute designed to af-

titicle 6&6-23(a), supra, ford one accused of transporting of para- graph (b), Article a complete defense against the charge In other words upon the accused making proof that he so made. was transporting alcoholjc beverages for his own consumption from a point of purchase to a given destination, his innocence Also where a holder of a carrier’s permit would be established. *4 Hon. Bert Ford, page 4 Co-4O63b

or a private carrier’s permit was charged or accused of trans- liquor of paragraph (b) of Article 666-4, upon the accused making proof that he was transporting from one wet area to another wet area where, in the course of said transportation, it was necessary or convenient dry area would be a complete defense against the charge so made. We do not think that the offense of transporting in a wet area without a permit and the offense of transporting 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 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.

the same is not applicable to the situation presented by your statement of facts.”

We think that the above mentioned opinion (No. O-1882) As this opinion was addressed to answers your second question. you we are not enclosing a copy of the same.

Yours very truly APPROVED MAR 17, 1943

/s/ Grover Sellers KTTORNEY GENERAL OF TEXAS FIRST ASSISTANT By /s/ Ardell Williams

ATTORNEY GENERAL

Ardell Williams, Assistant APPROVED: OPINION COMMITTEE

BY: BWB, CHAIRMAN

AW:mp:wb