Untitled Texas Attorney General Opinion ( 1949 )

THEATTORNEY GENERAL
OF TEXAS
Ausniu aa. TEXAS
PRICE DANIEL
ATTORNEYGENERAL
Oc6ober 27, R949
Hon. Bob Long, Opinion No. V-939
District Attorney
Travis County Rc: The lsgality of consumisq
Austin, Texas liquor at a club reoerved
for members and their
guests by a qxemb4r tkere-
of between the houro of two
and three o”clock a.m. uder
submitted facts.
Your request for an optnion read@ in part as followso
‘*I&. Jones is a member of a private
club with down-town club room#. The club is
opea 60 members only, except tbet tbd! mem-
bers may bring invited guests wt4b t&m, and
80 me alse is allowed in tbe club, The otob
members are charged annual duee,, exe@ for
?hasfirst twenty members, that joined the chzb,
All new members are admitted 20 the club only .
upon the ree ommendaticnc&et least one present
member a
“‘TM club does not have a liguo~ permit
or beer 11cenee, end does not sell intoxioat~
, Ptquor OF alcoholic bevweges of any k&d0 A
xrmnbe~ in good stem&g g@oe to tlae club et
approx8matolp two o’clock ama OEITueedq
morning, He takes to the club with hkn~a quart
of liquor, He plaoes the liquor cm the tab& sad
orderes G&ager Ale and ice and a glass from tb0
manager of t&s club, for which he pays the c&b
for tie ice and GdDgeo Ale. The membo+ mOloa
his own drinks and QOMSXIM~the liquor on the
premises, The member s+ays there and Herr
seve+aI drinks of ltquo~ between ths hours ok
bvo o&&Rocka.m. end fthee o’oloek a.ma 08 the
Twedag morn$ng fn the cBu&”
Hon. Bob Long, Opinion No. V-939, Page 2
Based upon the above facts you present for our dater-
mini&ion the following quastionz
‘Questiont Did the consumption of the
liquor by the member in the private club of
which he was a member in good standing be-
tween the hours of two o”clock a,m. and three
o’clock a.m. on Tuesday morning take place
in a public place within the meaning of Sub-
division (1) of Section 4(a) of Art. I of the Tex-
as Liquor Control Act I , ” or did the consump-
tion of the ltquor by the member take p&ace in
a private p&e0 and/or private club?O
We assume that the facts and question presented relate
to the prosecution or defense of some contemplated action in
the district or inferior courts of Travis County rather than to
some hypothetical situation, and is therefore a proper request
for the Attorney General to consider under Article 4399, V.C.S,
Artiole 666-4 (6) (l), Vexnon”s Penal Code provides that:
/ “It shall be unlawful for any person to
consume: any alcoholic beverage in any public
place, or for any person to possess any alcoholic
beverage in any public place for the purpose cf
consuming the same in such public place, at any
time on Sunday between the hours of I.:15 a,m.
and 1~00 o”elock pm,, an,d on all other days at
any time between the hours of 12~15a.m. and
7200 o”clock a.m. m
Neither the Texas Liquor Control Act nor the cases de-
cided under such Act have defined what is meant by the term *pub-
lic place 1O1No definition of such term was announced in the recent
case of Suburban Club, Inc, v, State, 222 S,W,2d 321, (Tax, Civ.
App., 1949, error ref. n.x.e.). Such being true we must look to
those cases dealing with the meaning of “‘public place” as used in
various other statutes to determine if the term is capable of an
exact and standard definition, or whether it BB a flexible term de-
pendentupon the particular fact@ and circumstances in @@ah indi-
vidual situation.
In the early cases of State v, Alvex, 26 Tex, 155 1861) and
Parker v, State, 26 Tex, 204 (mbL) both of which involve 6 the quea-
tion of what constituted a public place in contemplation of the gam-
ing laws, it was recognized that the question was an issue of fact to
be decided by the juPy under proper instructions from the Court.
b the letter case the cpurt tersely rtated thats
Hon, Bob Long, Opinion No. V-939, Page 3
“Whether a place is a public place or
not, o s is a question of fact, or a mixed ques-
tion of law and fact, and is always proper to
bo submitted to the jury, under the instruction
of the Court.*
The hurt in the Ptrktr Case, pointed out “that a pub-
lic place does not mean a place devoted solely to the uses of the
public, but means a place which is, in point of fact, public as
distinguished from private,” and further, that “a place may be
public during some hourm of the day, and privaUe during other
hours.“’ Also, in determining whtther a particular place is pub-
1%~or private in a given situation it is necessary and proper to
coneidtr the object of the particular statute under consideration
and tke end sought thereby, Parktr v. State, supra.
Subsequent case8 %nvolv%ngthe ismt of public place
where it has been ltft undefined by tht statute have rtcognined
the rule that it is a question of fact. Murchison v. State, 5 S.W.
508, (Tex. Cr%m. 1887), involving a conviction for intoxication in
a publ%c plact%January v. State, 146 SW. 555, (Tex. Crkn. 1912),
%nvolv%nga cenviction for intoxication In a public place; Grant vc
&& 27 SW. 127, (Tex. Grim 1894), %nvolv%ngthe question ‘of
whether a clubroom was a public plact within the statute prohibti-
tag ambg with cards; Huf&nua v. St&t, 92 S.W. 419, (Tax. Crbn.
,1906f , %nvolv%nga complaint wtfh rtftrtnce to uat of oboctne Im-
hue t in a public place; Punh v. St&t, ll7 S.W. 817, (Ttx. Crkn.
19099 , &volv%ng Maxication in a public plact.
The above ctsta clearly reflect that there is no etandard
def%n%tionof a *public place” wbtre %t%anot defisred in the part%+
ular statute, Furthermore, them cast6 emphasize that it is ntctt-
sary to consfder the dtfferent cfrcumstancts presenttd in each fact
s%tuaNon %ndetermining the question of fact as to whether the par-
ticular place is %nfact ““publ%cQP’Being a question of fact, it dots
not necessarily follow that the club %nqueshfon is not a “‘public
place* within the meaning of the 16quor lawm mertly because it is
a private club open only to members and #e%r %uv%ted guests. A
determination of the fesue w%U &aped u)oaa all the facts and cir-
eumstanees surrounding the operation ef tht dub, and the Attornty
General cannot advise ytu that the dub %Sor %anot a public place
w$th%nthe mtan%nngof the liquor laws bocauot that issue it for the
jury to dec%da under proper iastruetf~r fz?amthe cturt.
Whtther a place ia a “;lublk place’
w%Mn the mtan%ng of tht Texas L.i’quor Control
Hon. Bob Long, Opinion No. V-939, Page 4
Act (Art. 666-l et seq., V.P.C.) 6s a question
of fact to be determined by the jury under
propef inshuctions from the court.
Very tpuly yours,
ATTORNEY GENERALOFTEXAS
ceizLd=J~~O
BY Charles D. Mathews,
Executive Assistant
CDM:v
APPROVED:
z?CL 2&
ATTORNEYGENERAL