Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OFTEXAS AUSTIN GROVERSELLERS ATTORNEY GENERAL ~!onor&le D. :y. Durkhaltcr; County Attorney, 'IhrockmortonCounty Throckmorton, Texas Dear Sir: at forour opinion, in which you sub ving i5terprgtation of .the Texas Isq e&ions are restated as follows: . , h a casa should~the judge,instruct e transportation must be fo&the to be unlawful? a prosecutioh for unlawful transpor- tation of intoxicating li:;uor15 a dry ares, is'the ownership of the li.;uormaterial? In other vzords, does it make any difference rhather or not one~.ov.ns ,any interest in the liquor being transported by dim, as regards criminal liability7 The prohibitory ;:rovisionsof the stvtute raIiiVWIt to :;uurproblems are contained in Section 4 (b) of the Texas Liquor Cbntrol Act (Yor50n's ,inilotated ?cnal Code, .irtv 666-4 (b): Rurkhaltar, Page 2 Ronorablo 1).\;'. n It shall be unlawful for any person in any dry area to mrnufncturo, distill, brew, sell, pos- scss for the ;;ur;oseof ~618, l?port into this State, px?ort from the St.:te,trcnsl:ort,distribute, ware- house, store, solicit or take orders l'os,or for the purpose of sale tn bottle, rectify, bl-lnd, treat, fortify, nix, or Izocnss any~liquor, dis- tilled spirits, whi&key, gin, brandy, wine, rum, beer or ale." Xe hav3 carefully examined the entire statute, in- cluding the various exceptions availoblo as defenses to the quoted nection, ant;we fail to find any provision ::'lzatsvor to require either allsgation, ;~roofor instruction by the Court .thattransportation of prohibited liquor must be for the purpose of sale in orsor to sustain a conviction for such transportation in a dry area. In our opinion the holding of the Court of Criminal i~ppu~ls in the case of Crowloy v. iitate, 472, followed fin a long lino .92 Tex. Cr. R. 103, 242 S. ‘ii'. of decisions by that 'court,is controlling. Whilu.it is true ,that tha Court had under consideration 5.5 the-Crowley case the state-wide prohibition act as it existed,v;henthe.oRlnion was.rendered, tho 1ent;uageem;rloyedby the Legislature is sub-. stantially tha same in the present statute as it relates to dry ar as within the state. See also Stringer v. State, 92 Tex. Cr. R. 46, 241 S. Vi. 159; Porester v. State, 94 Tex.,Cr. R. 295, 250 S. X. 1027. You are therefore respectfully advised that the answers to each of ~the first two questions proQoundep by you . .ere in the negative. , In ansv;orto your third question, your attention is invited to Section 23a, Subdivision 1 of the statute (Vernon's Annotated Fenal Code, Art. 666-23a,.Subdivision 1); "It is provided that any person who purchases alcoholic bevoragas tor,i!is0~5 consum:jtionmay trens::ortsame from a plucc*v!herethe sale thereof is legal to a plsce where the :jossessionthareof is leSa1." This section affords a defense to be tiaely inter- post&by the accused a:l$icable under the facts of the case, honorable I).VV'.Eurkhalter, Page 3 end it is not skessary to be negativad in tha state's plead- WI* Absent evidence raising the issue, it is, of course, improper to ificludeit in tho Court’? charge0 Violetions of the Texas Liquor Control i&t cons- titut'c? aiSCi6in6E0lOE3. Szct:.on41 of the act provides the yen- alty for i11oga.j. transportation of liquor condomned by Section 4 (b), or ;,rticlo666-4 (b) supra. (Vernon's Fenal Code, iirt. 666-41.) In miadamaanor cases it is ~011 settled that all : parties participati~~;in~,an.'offensa are principal offenders end may be prosacuted 3nd ~:unlsh=das such. 'Therefore, the mere fact.that liquor baing transported does not belong to the perapn trans:jortingit cannot loGally affect his guilt or innocence or enable him to escape the penal consoquonces for such Qansportation, . . Yours very truly ATTCRNxY GENERA4 OF TEXAS , BlV:b .. , ,