Untitled Texas Attorney General Opinion

~-256 THEATTORNEY GENERAL OF TEXAS PRICE DANIEL ATTORNEYGENERAL April 8, 1947 Hon. Augustinecelaya, Chairman Liquor Regulation Committee House of Rpresentatives Aus tin, Texas Oginion No. V-134 Re: Conatitutfonality or House Bill No. 118, 50th Legielature, re- latite tomthe sale or liquor to minors. ‘. Dear, Sir:, YOUi request ror an opinion upon the above subject matter i6 at3 r0ilows: “AS chairman 0r the Committee . on Li uor Regulation, I will appreorate an op Pnion as to the oonstitutionality or House Bill 118 and amendments. “1 am especially concerned ‘about the change in the law in tha.t the,author ha6 eliminated the word ‘knowingly’ from Artiole 666-26(b).” We have carefully examined Eouse Bill 118 or the 50th Ceglelature and likwtW3 the kit10 thereto aa ahown by eoml.ttee aneadmqit. T&r blfl purports.to a- mend Arti .ols 666-26 or the Penal. code Or &he State or Texas. This A.8 lnaocuratb and should be corrected ae in the re-droftad f&eadaeat lthlah we have taken the liberty to prepare and atteoh horrto. The purpose of the Bill is to omit ‘the word ‘knowingly’ iro8tI that part Of the Texas LiQuor COnt??Ol Aot whleh prohibits sale of certain liquors to pereons under 21 years 0r age. Under the proposed bill, sale to a minor would be an offense regardless of whether the seller had knowledge of such non-age. We note that you are neepecially concerned a- bout the ohangr in the law in that the author has elim- Bon. Augustine Celaya - Page 2 V-134 inated the word 'knowingly' from Artiole 666-26(b)." The elimination of the word 'knowingly' does not affect the validity of the act - it merely goes to the merits of the bill, and presents a question solely for the consideration of the Legislature. Corpus Juris Seoundum Volume 22, Seotion 30, announoes the general rule as follows: n* * *e On the other hand, the Legis- lature may forbid the doing of, or the fail- ure to do an act and make its commission or omission criminal without regard to the in- tent or knowledge of the doer, and if such legislative intention appears, the courts must give it effeot, and in such cases, the &i;E,of the inhibited act aonstitutes a and the moral turpitude or purity of the m;tive by which it was prompted, and knowledge or ignorance of its criminal char- acter, are immaterial circumstances on the question of guilt; such legislation is enA acted and is sustained;for the most part, on grounds of necessity, and is not viola- tive of the Federal Constitution. * * *e In Pappas v* State, 188 5, W. 52, the Supreme Court 0r Tennessee said: “It being clear that in statutory of- fenses a criminal intent or fraudulent in- tent is not always eassntial, it Is equally olear that whothor the soienter is a materi- al element of the crime or not must be deter- mined by the language used by the Legislature in defining the effe21se.w In Texas Liquor Control Board v. Duvall, 170 S. W, (26) 820, involving a cancellation of a permit for em- ploying a boy under eighteen years of age, it is said: "The prohibited act of employing a minor in a position fraught with tempta- tions that may lead to a life of dissipa- tion, is declared in unqualified terms, unrelieved by any language importing that knowledge of the age of the minor, or that either good faith or intent was an element Hon. Augustine Celaya - Page 3 v-134 of the offense. In authorizing the cancel- lation of a license for the sporadic sale of beer to a person under twenty-one years of age, the ,same Article of the statute in Subd. 1 (a), provides that such sale must be ‘know- ingly’ made; but with reference to the offense of greater enormity, that is, of employing a,minor in a business where he is constantly, day after day, exposed to a temptation that may result in his becoming an inebriate, no such qualifying language is found. “This construction of the statute is in line with that given similar statutes, not only by our courts but by courts of the coun- In Peacock v. Limburger 95 Tex. ,“Fi ‘z6eri W 764 our,Supreme Co&t - ing’eertiiiei queition, held that a ;a%?$ liquor to a minor constituted a breach of the dealer’s bond, whether the seller knew the fact of minority or not,* * *n Justice Williams of the Supreme Court, writing the opinion in Peacock vs. Limburger, 66 S. W. 764, said: “The statute in force when the sale was made (Rev. St. Art. 5060g; Aots 1893, p, 177) required a bond on condition that the dealer would not sell intoxicating liquors,. eta., to any person under the age of 21 years, * * * “The statute also gave to any person ag- grieved by the violation of the provisions of. the bond a right of action for $500.00, as lie quidated damages. A proviso was to the effect that ‘where the sale is made in good faith, with the belief that the minor was of age, and there is good ground for such belief, that will be a valid defense to any recovery on such bond.’ The act of 1887 contained no such proviso, and under its provisions it has been held by the Court of Appeals -- correctly we think -- that a sale of liquor to a minor constituted a breach of the bond, whether the seller knew the fact of minority or not. The reasons for the deoi-, sion are so fully and satisfactorily stated in the opinion of Judge Willson that a referenod to it without further discussion of the point there decided is suffioient. McGuire vs. Glass (Tex. App.) 15 S. W. 127.” Hon. Augustine Celaya - Page 4 V-134 SUMMARY House Bill ll8, 50th Legislature, with oorreoted aommittee amendment6 ,rllminating the word "knowingly" rrom the offense or the stile of 11 uor to'parsons under 21 ~years of age (Art* %66-26 V. P. 0.) is oonstitutional. Omission of the word "bowinglyn in defining the orrense does not affeot the validity,of the bill, going only'to the merits of the bill. Yours very truly ATTORNEY GENERALOF TEXAS &3ccL BYOcie J$iL.- l Speer 0S:lh:wb:mmo Assistant APPROVED APR 9, 1947 3i?.& esfL.2 ATTORNEY GENERAL