Untitled Texas Attorney General Opinion ( 1941 )

c ..- THE /iTJ?ORNEY GENERAL OF THXAS Honorable George T. Thomaa County Attorney Howard County Big Spring, Texas Dear Sir: opinion no. o-3944 Re: If a person comes into Howard County from a dry county and pUrChaSeB a large quantity of liquor, in his own name and for himself, and starts back to the dry county with it, but is arrested before leaving How- ard County, but admits that he intends to take such whiskey back to the dry county where he lives and sell it, is he violating the terms of Article 666-4(a) Vernon's Annotated Penal Code? Your letter of February 18, 1943, requesting the opinion of this department on the question8 stated therein reads in part 88 follows: "Howard County is wet. If a person comes into Howard County from a dry County and purchases a large quantity of liquor, in his own name and for himself, and starts back to the dry county with it, but is arrested before leaving How- ard County, but admits that he intends to take such whiskey back to the dry county where‘he lives and sell it, is he violating the terms of Art. 666-4(a), reading as follows: "'(a) It shall be unlawful for any person to manu- facture, distill, brew, sell, poasesa for the purpose of sale,,import into this State, export from this State, transport, distribute, warehouse, store, solicit, or take orders for, or for the purpose of aale to bottle, rectify, blend, treat, fortify, mix or process any liquor in any wet area without first having procured a permit', and if he is violating the terms of such provision, uould he be guil",yof transporting liquor in a wet area without a Honorable George T. Thomas, page 2 (O-3944) permit, or would he be guilty of pome~rion of liquor for the purporer of 6ale without a permit, or both. "I a6k these quertionl becaure if the term 'tran6port1 a6 u6ed in the above article in given the 66~ construction a6 the 6em6 term when u6ed in Article 666-27a, which wa6, according to your opinion No. O-1882 to Eon, Bert Ford 'ehipment of liquor, a6 that term i6 ordinarily u6ed and uU%?rEtood, as where a person order6 liquor and it is de- livered to him either by common carrier or agent for the consignee or consignor', then such person would not be guilty under the transport provision of such article wheth- er he intended it for hi6 own consumption or for Bale, just so it belonged to him. "And on the question of 'pOEseS6 for purpose of sale', what would be the effect of such pereon having such posses- sion without a permit, for the pUrpO6e of sale, but had such pOSSeEBim only in Howard County, but intended to sell only in some other county, and the only real purpose of having and possessing the liquor in Howard County was for transport to such dry county, where it wa6 intended to be sold? "Further, under the same fact situation, would such person be guilty of a violation of Article 666~27a if he did not have in his possession the written statement re- quired by such act? In your opinion to Hon. Bert Ford, Opinion No. o-1882 it would appear that you construed such article to require such statement only when there was a 'shipment of liquor, as that term is ordinarily used and understood, as where a person orders liquor, and it is delivered to him either by common carrier or agent for the consignee or consignor irregardless of whe~therBuch liquor was intended for per6Ond coneump- tion by the person transporting the same, or by sale by such person. " . . 0 .R By virtue of subsection a, of Article 666-4, Vernon'6 Annotated Penal Code, it is unlawful for any person to transport liquor without having procured a permit. Except where a person has purchased liquor in a wet area, and if, at the time of his arrest, he was transporting same to his home for his own consumption, he would not be guilty of un- lawfully transporting the liquor, because of the provisions of Article 666-23(a), Vernon's Annotated Penal Code, which read6 a6 fOllow6: Honorable George T. Tho6la6,page 3 (O-3944) "(1) It 16 provided that any per6on who purchase6 al- coholic beverage6 for hi6 own coneumption may tranlport lam6 from a place where the sale thereof 16 legalto a place where the porre66lon thereof 16 legal." Article 666-15, Vernon*6 Annotated Penal Code, provide6 for the different type6 of permits, including thole allowing transportation a6 follows: "Carrier Permit, Private Carrier Permit, and Local Carb- age Permit." There are many Texas cases regarding the illegal transporta- tion of intoxicating liquors. However, we have been unable to find any case passing directly upon the question6 submitted in your inquiry. Under the fact6 stated in your letter, a6 quoted above, it is our opinion that the person mentioned therein has violated the terme of Article 666-4(a) of transporting liquor in a wet area without a per- mit provided he was not transporting the Eame to his home for hia own COnEumptiOn. It is our further opinion, under the facts stated, that such person would be guilty of pO6BeSSiOn of liquor for the purpose of sale without a permit. With reference to your eecond question regarding the posses- sion of .liquorfor the purpose of sale, it is stated in effect, that the person who was arrested in Howard County had such liquor in his pos- session sandstated that he had it for the purpose of sale but he intended to sell it in some other county and the only real purpose of having pos- session of the liquor in Howard County wa6 to transport such liquor to the dry 'countywhere it was intended to be sold. It is our opinion that it is immaterial where the liquor was intended to be sold so long as it WCLB his :purpoBeand .intentionto posse66 such liquor for the purpose of sale. We think that our answer to your first question necessarily answers this question. With reference to your third question, under the 6ame fact situation, you ask "would such a person be guilty of a violation of Article 666-27(a) if he did not have in his possession the written state- ment required by such Act?" We think that our opinion No. O-1882 ex- pressly Gan6wersthis question and we quote from the same as follows: "We think this section has reference to shipment of liquor, as that term is ordinarily used and understood, as whe:rea person orders liquor and it is delivered to him eliher by common carrier or agent for the consignee or Honorable George T. Thomae, page 4 (O-3944) consiepor. It 16 our OpiniOn that the Eame 16 not appli- cable to the altuation presented by your statement of factr." Your6 very truly APPROVED MAR 17, 1943 A!Pl'ORNEXGENERALOFTWAS Id Grover Sellers By /a/ Ardell Williams FIRST ASS:ISl!ANT Ardell Williams A!l'l'ORXNY GENEPAL ABSietant AU:mp:lm APPROVED OPINION COMMITTEE BY /s/ BUB CHAIRMAN