Honorable 0. N. Humphreys

Acting Administrator Opinion M-227 Texas Liquor Control Board SamHouston State Office Building Austin, Texas 78711 Re: Twenty-two questions relating to the legality or Illegality of sale, service, ,and possession of alcoholic beverages by commercial airlines or employees thereof, within the State of Texas and the air space over territory within state Dear Mr. Humphreys: boundaries. Your office has recently submitted, to be answered byan official opinion, aseries of twenty-two questIoni relating to the legality or lllega~lty. of sale, service, and possession of alcoholic beverages bycommercial airlines or employees thereof, within the State of Texas and the air space over territory within state boundaiies.

> The initial question which yolkhave presented Is stated as follows:

“Question 10 Is It unlawful for an employee of .acommercial airline to sell liquor or beer, which liquor or beer wasnot manufactured bythe process of distillation and does not contain dlstilled spirits, to apassenger inside anairplane which airplane is owned bysuch commercial airline and 1s in the air above the State of Texas and is In route from apoint In Texas to another point In Texas?”



### -low-. ,

Honorable 0. N. Humphreys, page 2 M-227

It Is well settled that an employee assisting lnan illegal act Is equally guilty with his principal and both may be Indicted and punished, Consequently, for the purposes of our answer to your first and subsequent questions wewill consider the employee’s liability, If any> to be co-extensive with the liability, If any, of the airlines. In answering your first and subsequent questions, wewill consider further that liquor or beer not manufactured bya process of distillation andnot containing distilled spirits Includes any intoxicating alcoholic beverage manufactured by (or containing alcohol manufactured by) fermentation or other meanswithout regard to whether such beverage is commonly designated liquor, beer, malt liquor, wine or by someother nomenclature. Under the Twenty-First Amendmentto the Constltutlon of the United States, the states have broad regulatory powers over liquor traffic. TheTwenty-First Amendmenthas in fact largely relieved the states of the limitations set bythe Commerceand Supremacy clauses of the Constitution of the United States, Insofar as regulations pertaining to traffic in Intoxicating liquors Is concerned e Onthe other hand, the Twenty-First Amendment does not Increase the territorial jurisdiction of the states and does not empower the states to prohibit, Impose conditions on, or regulate, the liquor traffic In territory which Is under the exclusive lurlsdlctlon of the Federal novernment. Collins v. Yosemite PaEkCo., 304U.S. 518, 82L.Ez. 1502, 58S-09 (1941) Hostetter v. Idlewlld Liquor Corp 2d 350; 84 SCt 1293 (19b4). Dept 377U.S. 324, 12L-Ed. eof Alcihollc Beverage Control v. AmmdxWardhoise, 378U.S.‘124 12LEd2d743 84SCt lb57 lgb3) Johnson v, Yellow CabT&sit 60.: 321U’.S. 381, 68L.Ed. 14, 643 Ct 622 (1944

. Epstein v. Lordi, 261 F.Supp, 921 (D.C. N,J., 1966), ‘affirmed, 63Ct lOb’(1967r 15C.J.S, 739, Commerce, Set, 99; 48C.J.S. 1~4,‘Intoxicatin~ Liquors, Sec. 33. The sovereign states possess jurisdiction of the air space above their territories and mayexercise police powers therein except where the samehave been granted to or assumed or preempted by the federal government D 2C,J.S. 903, Aerial Navigation, Sec. 3, and authorities there cited. Likewise, state statutes regulating the operation of aircraft have been held constitutional as within the police power of the state, and as not violating the commerce clause of the federal constitution, 2 C,J S.

-1091-. .

Honorable 0. N. Humphreys, page 3 M-227 :
905, Aerial Navigation, Se@, 8, andauthorities there cited.

: Congress claims only concurrent jurisdiction with the states to regulate the legality or Illegality of acts performed while in flight over a state’s territory. Thecommittee report which accompanied the most recent amendment of the penal provisions of the Federal Aviation Act of 1958 (49 U.S,$. 1472) makes this very clear, Said report reads In’ part:

“‘The Committee of Interstate and Foreign Commerce, to whomwas referred the bill (H,R. 8384) to amendthe Federal Aviation Act 

### of 1958 to provide for the application of Fgderal :’ criminal 

### law to certain events occurring on board aircraft in air commerce, having considered the same, report .favorably thereon with amendments and recommend that the bill as amended do passD

,I Q/r7n the case of crimes committed in the airsnace-oiler States of the United States. most of ihe acts with which this legislation -Ions of the laws .of one or., more of such St*, However, crimes committed .,, ,, iace over aState nose Deculiar and n. extremely tEoublesome problem; of enforcement which are not present whensuch crimes take place on the ground. Whenacriminal moves the scene 

### of his ectlvlty to an

### aircraft In flight he is able to take advantage of practical and physical difficulties that mayseriously impair effective apprehension and prosecution, particularly If the offense Is one against the law of 

### aState rather than against Federal law, Furthermore, in the 

### case of offenses against State law, State ofi%cials are often faced with an inauperable task In trying to establish that aparticular act occurred In the airspace over that State -- and in some

### cases, under State law, It would be necessary to prove that the offense 

### waacommitted over 

### a particular county In the

-1092-Honorable 0. N. Humphreys, page 4 

### M-227

State e It Is obvious that such proof maybe very difficult and often impossible If the offense la comml-Jo - ,,Lsr:on a’jet aircraft traveling at 

### 600 miles per hour at analtitude of 30,000 feet.

“The offenses pu~nlshable under this leglslation would not replace any State jurisdiction 

### bt Id pyov%d h bth Fd 1 dStt 1

;oF ~~~ls~mentef~?th~nsameaa~t ,aYdeIn addition to the State criminal 1a.w:

“As is well known, the Federal Government does not ,provlde ageneral crltilnal code for all crimes commltt dI th aes. the province oefth: va%oEs gtates. hat 1s However, criminal codes of the States are at times SUDplemented byFederal law In fields where the‘ Federal Government has responsibilities.

“Wewish to emphiisize that it is not our lntent to divest the States of anyjurisdiction they :+ow,bave. Thia leglslatlon merely seeks to give the.:,Federal Government. concurrent jurisdiction with the States In certain areas
. . n

II

. . .

“The\‘present law‘relating to crimes aboard aircrayt In flight follows the normal rule, which 1s~that the offense is dealt with under the law of the State where the offense occurs.

“Onedifficulty here ‘Is that the State above which the-crime mayhave been committed is often not the State in which. the aircraft lands o The second State has 3jojurisdiction, and cannot even arrest the criminal a If the State over whose territory the crime occurred Is disposed to act, it first ‘mustcollect the evidence necessary to establish that acrime has been committed within Its jurisdiction. This evidence, however, Is hard to gather when the witnesses on board the air-



### -1093-Honorable 0. N. Humphreys, page 

### 5 M-227

craft disperse after landing. Assuming that an Indictment Is returned in the flrst’state, there ,ls still the question of extradition and not all crimes are extraditable D

“In contrast, If the crime also Involved violation of aFederal law, the offender could be taken Into custody by Federal law-enforcement agents whenthe aircraft lands and criminal prosecution Instituted.

“This, wewant to makeclear, does not any State jurisdiction but would only supp emen T-T@ t*-” 2US Code and Administrative News

### (87th Cong., lsi Sees& 1961) 

### 2563. (Emphasis added. ) In view of this clear declaration of legislative policy that state and federal penal laws are to operate concurrently in the airspace over the states, it would take an equally clear exception from this general policy to allow commercial airlines to perform with Immunity while In-flight over astate, such acts with regard to Intoxicating liquors as would otherwise be defined as criminal under state law. Otherwise, the general policy would control, and It could not be held that estate penal laws apply only piecemeal, to define ascrimes someacts or omissions occurring fn the airways, but that penal laws relating to liquor are in somemysterious special category, That portion of the Federal Aviation Act of 

### 1958 which sets up the office of Federal Avfatfon Administrator provides, Inter alla, that he shall promote air safety “by prescribing 0eDminimumstandards 0D~to provide adequate1 for national security and safety in air commerce.” ,49U.S.C, 1921(a)(6), Pursuant to such authority the following regulation has been issued bythe Administrator:
7 “Section 121.575 - Alcoholic Beverages

“(a) Noperson maydrink any alcoholic beverage aboard anaircraft unless the certificate holder operating the aircraft has served that beverage to him,

-1094=Honoi+ble 0. N. Humphreys, page 

### 6 M-227

“(b) Nocertificate holder mayserve any alcoholic beverage to any person aboard any of Its aircraft if that person appears to be Intoxicated.

,. “(c) Nocertificate holder mayallow any person to board any of Its aircraft if that person appears to be Intoxicated.

“(d) Each certificate holder shall, within five days after the Incident, report to the administrator the refusal of any ,Iperson to comply with paragraph (a) of this ’ section, or any disturbance caused byaperaonwhoappears to be Intoxicated aboard any of Its aircraft.’ It Is argued onbehalf of interested airlines that the above quoted provision reflects anauthorization from the Federal Aviation Administrator to fe,derally certificated airlines that would supersede state liquor laws. Such an interpretation cannot be supported under recognized canons of construction which are applied to statutory and admlnlstratlve provlslona. In this regard, wenote that the provieion doea not on lta face purport to depart from the general pdllcy which would allow state and federal penal laws to operate concurrently in the air space above the states. It 

### should therefore be harmonized with general policy by reading the authorization to regulate sale and service of liquor which flrat meets the conditions Imposed bystate penal laws. Aaaumlng arguendo that the administrative regulation 

### should beread as adeparture from general policy, and as providing Immunity to the alrllnea from state penal laws, the provision would not stand as an exception to the general policies provided for bythe United States Congress, but must fall, since anadministrative agency cannot enact policy Inconsistent with policy provided bythe Congress, TheFederal Congress In directing the Federal Aviation Admlniatrator to Issue safety regulations, - the Federal Aviation Administrator In issuing such regulations, - and the Texas Legislature in enacting Subdivision 5, Article 

### 46c-6, Vernon’s Civil Statutes (the provision of the Texas Aeronautics Act adopting federal safety regulations), - were eabh directly concerned with defining and enumerating actsHonorable 0. N. Humphreys, page 7 M-227

or omissions in flight which should be considered unsafe, At other times both State andFederal Governments have bben directly concerned with defining andenumerating acts or omissions which should be considered illegal or prohibited. Weare not here concerned with the issue of whether certain acts are compatible with the minimumstandards of safety set by the Federal Government, but rather weare concerned with the issue of whether the acts In question are legal under state penal lawwhich applies concurrently with federal penal law In the airspace over the State of Texas. In 48 C.J.S. 236, Intoxicating Liquors, Set, l?l, the rule of construction generally applied to state legislation reglilatlng alcoholic beverages is stated as follows:

“Where the sale of Intoxicating liquors Is not prohibited, but is madesubject to license, aa a general rule all persons whoengage In the business of selling Intoxicating liquors, or who m&kesuch selling apart of their business, or whofollow abusiness which customarily Includes such selling, must procure a license D

. .‘I Article 666-4, Vernonfs Penal Code, provides In part:

“It shall not be unlawful to oQ-sell, Import9export, transport, distribute, warehouse, store, possess, fir 7 possess for the purpose of sale 000allyIlquor in this State, 0a0provided that the right or privileges so to doare granted byany provision of this .Act oo oAnyact fif the nature described 7 ,done byany person-which is not granted inthis Act is hereby declared to be unlawful.”
Asimilar prohibition against the unlicensed sale, etc, of “beer” appears In Article 667-3, Vernon’s Penal Code. Moreover, the legislature would hardly have bothered to provide for licenses under which various intoxicating beverages could lawfully be sold, etc, If it was Intended that such beverages could lawfully be sold without a license. Areading of the entire Texas Liquor Control Act clearly indicates that Texas follows the general rule stated above and beverages of Intoxicating alcoholic content were only to be commercially dealt with In this State fn such amanner as

-1096-Honorable 0. N. Humphreys, page 8 M-227

has been specifically authorized bythe Texas legislature -- I.e., by licensees acting under the control and supervision of the Texas Liquor Control Board. Several provisions of the Texas, Liquor Control Act which directly relate Its coverage to aircraft makeit clear that the act was to extend to aircraft. See, for example, Article 666-15(12) (which, werecently discussed In Attorney General’s Opinion M-26 (1967)), which authorizes the Texas Liquor Control Board to Issue a carriers permit to federally certificated airplane lines to transport liquor a See also Article 666-17(15) which Is quoted and discussed infra in connection with our answer to your fifteenth, sixteenth and seventeenth questions. Although the legislature has provided for permits authorizing carriage or transportation of liquor by commercial airplane lines, nopermit or license has been authorized, which would allow the sale or service of alcoholic beverages aboard airlines while In-flight over the State. Pursuant to the above discussion andauthorities cited, your first question Is therefore answered Wthe affirmative

-- I.e., It Is presently unlawful for anemployee of a commercial airline to sell liquor or beer In the air above the State of Texas since such traffic In Intoxicating liquors Is permitted within this state only as has been specifically authorized bythe legislature; sales In the airspace above the state are subject to state laws; and there Is presently provided no license or permit bywhich sales of lntoxlcatlng beverages aboard aircraft maybe legally conducted In TexasD Your second and third questions are stated as follows:

“Question 20 Is It unlawful for an employee of acommercial airline to sell liquor or beer, whjch liquor or beer was not manufactured by the process of dlstlllatlon and does not contain distilled spirits, to apassenger Inside an airplane, which airplane is owned by such commercial airline and Is In the air above the State of Texas at the time of the sale and Is In route from a point In Texas to apoint outside of Texas?

-1097-Honorable 0. N. Humphreys, page 9 M-227

“Question 3. Is it unlawful for anemployee of acommercial alrline to sell liquor or beer, which liquor or beer w;?‘iisii ot manufactured brtherocess of distillation and does not contain distilled solrits. to aoasseneer inside an airplane, which airplane his owned~by such commercial airline and Is in the airabove the State of Texas at the time of-fie sale and is in route from apoint outside of Texas to apoint in Texas?” (Emphasis added. ) Questions 2and 3are answered in the affirmative pursuant to the discussion andauthority cited in answer to the first question. The reach of Texas Penal Lawsis co-extensive with state borders, and,the appllca billty of such laws would therefore not beaffected by the point of origin or point of destination of anairflight. In connection with your fourth question you have cited numerous provisions of the Texas Liquor Control Act. Your question Is then stated as follows:

“Question 4. If your answer to either Question 1, Questlon 2, or Question 3is ‘yea’ which’ of the foregoing provlalons of the Texas

. Liquor Control Act have been violated?” There are numerous provisions In the Texas,Liquor Control Act pertaining to ‘ Illegal sales, illegal possession for the purpose of sale, illegal transportation, etc., and offenses are further categorized as to whether they occur in awet area or dry area andas to howthe precise alcoholic beverage involved Ismanufactured or chemically composed, the.sise of the paokage in which it Is contained, eta, The precise provisions of the Act which might be violated byany given sale would’have to be determined largely upon the particular facts and circumstances of the individual case. Y&r fifth question Is stated as follows:

“Question 5. If your answer to either Question 1, Question 2, or Question 3is ‘yes’ would the State have to prove that the offense oocurred in acertain county for the purpose of establishing venue for prosecution?”

-1098-Honorable 0. N. Humphreys, page 10

Article provides: 13.17, Vernon‘8 Code of Crimlna1Procedure M-227

“Anoffense committed on board avessel which is at the time upon any navigable water within the boundaries of this State, maybe prosecuted in any county through which the vessel is navigated in the course of her voyage, or in the county where the voyage commences or terminates *” (Emphasis added.) There Is noprovision which would slmllarly set venue for crimes committed aboard moving aircraft, although a‘parallel venue provision might prove essential to effective prosecution in some situations. For example, it might prove extremely difficult to prove with particularity the county over which asale of lntoxicatlhg beverages occurred. However, crimes committed aboard moving aircraft must currently be prosecuted under the general penal venue statute, Art. 13.26, Vernon’s Code of Criminal Procedure, which provides that:

“If venu~eie not specifically stated, the proper eounty for the proseoution of offenses is that in which the offense was committed.” Your fifth qUeStiOq.iB, therefore, anawered in the aft flrmative, and venue mue’tbe established In the county where the offenee oharged oacured in order to.prosecute 

### for either an illegal sale or an illegal posseeaion. Your sixth question is stated as follows:

“Question 6. Is it unlawful for anemployee of a commercial airline to sell distilled spirits by the drink to apassenger inside an airplane, which airplane Is owned by such commercial airline and Is in the air above The State of Texas and IB in route between twopoints In Texas?” This question Is answered in the affirmative pursuant to the diSCuSBion and authority cited in answer to the first question posede

-1099-Honorable 0. N. Humphreys, page 11 M-227

In addition the legislature has directly prohibited sale of liquor by the drink. Code, provides in part: Article 

### 666-3, Vernon's Penal

t(a) The term 'open saloon' as used In this Act, meansany place where any alcoholic beverage whatever, manufactured In whole or in partby means of th process of di till ti

liquor compo:ed or compoundEd lnapa$‘of ed spirits, IS sold or offered for sale for beverage Purposes by the drink or In broken or unsealed containers, or ar lyce where any such liquors are sold or offered for sale for humanconsumption on the premises where sold. "(b) It shall beunlawful for any person, whether as principal, agent, or employee, to operate or assist In operating, or to be directly or Indirectly interested In the operation of any open saloon In this state." (Emphasis added.) Your seventh question Is stated as follows: "Question 7. If your answer to Question 

### 6 Is syes' would it benecessary to prove that the offense occurred In a,certaln county in the State of Texas in order to establish venue for the purpose of prosecution?" Question 7Is answered in the affirmative. Venue must be established in order to prosecute for the illegal sale. See Article 

### 13.26, Vernon88 Code of Criminal Procedure, which has been herein quoted in connection with our answer to Question 

### 5. Your questions eight, nine and ten are stated as follows: "Question 

### 8. Is It unlawful for an employee of acommercial airline to 'possess lnBide anairplane, which airplane Is owned by such commercial airline and Is in the air above the State of Texas and Is onaflight in route between twopoints InTexas, aquantity of liquor or beer from which was taken liquor or beer that was sold to apassenger while such airplane was onsuch flight?

-1100-Honorable 0. N. Humphreys, page 12 M-

### 227

“Question 9. IS It unlawful for anemployee of acommercial alrllne to possess lnside anairplane, which airplane IS owned by such commercial airline and Is on the ground at anair terminal In County Xof the State of Texas, aquantity of liquor or beer from which was taken liquor or beer that was sold to a paBsenger Inside such airplane whensuch alrplane was In the air above the State of Texas In route from apoint In Texas to the air terminal In County,Xof the State of.Texas?

“Question 10. Is it unlawful for an employee of acommercial airline to possess lnaide ana+rplane, which airplane Is owned by such commercial airline and la on the ground at anair terminal in County Xof the State of Texas, a quantity of liquor or beer from which was taken liquor or beer that was Bold to a passenger Inside such airplane when such alrplane was In the air above the State of Texas in route from apoint outside of Texas to the air terminal In County Xof the State of Texas?” Theabove queatlone describe very strong cases of stantial evidence tending to establish possession In a

_ _ __. clrcumdry area for the purpose of sale of liquor or beer or possesslon In awet area of liquor or beer for the purpose of sale ;;+f;- out a permit of the class required for such privilege I would be so even though the airline held a carrier’s permit under Prticle 

### 666-15(12) because the Acts above set out constltute something more than the transporting authorized by such permit. The past course of action described strongly Indicates that possession Is for the purpose of sale and proof of such past course of action would be sufficient to support a jury finding that the Intent of the accused was to unlawfully sell In the future the liquor or beer faund In his possession. Aconviction based on &uchjury fln&lng would be sustained. Brooks v. State, 

### 7S.W.2d 

### 768 (Tex. Crlm. 1940); Morrison v. State, 230S.W.2d 

### 08 (Tex. Crlm. 1950).” However, noact of poseession of Intoxicants is Illegal per se unaer
‘Texas law and It is necessary for apresumption of illegal purpose to be drawn by’the fact flndin body in order to sustain aconviction. Walton v. State, 1

### 3S.W.2d 203, 204 (Tex. if Grim. 1942); DeHart v. State, 36S.W.2d 168 (Tex. Grim. ~1931);

-llOl-Honorable 0. N. Humphreys, page 13 M-227

Piper v. State, 34S.W.2d 283 (Tex. Crlm. 1930). Proof of Drier salea would be sufflcent to establish aDrlma facie case bf~posses~lon for the purpose of sale but ajury or other finder of fact would not be obligated to convict on such evidence.
Your questions eleven and twelve are stated as follows:

"Question 11. Where anaccused Is being prosecuted for unlawful possession of liquor or beer for the purpose of sale In awet area without apermit or license, Is evidence of a recent prior unlawful sale of alcoholic beverages bythe accused In adry area admissible to prove the Intent of the accused to unlawfully sell the liquor or beer In question in awet area without apermit or license. "Question 12. Where anaccused Is being prosecuted for unlawful possession of liquor or beer 'for the purpose of sale in adry area, Is evidence of arecent prior unlawful sale of alcoholic beverages by the accused In awet area without apermit or license admissible to prove the intent of the accused, to unlawfully sell the liquor or beer in question in adry area?" The law Is stated at 48 C.J.S. 477, Intoxicating Liquors, Sec. 346b, Insofar as Is here pertinent as follows:

"In a proseoution for keeping or possessing Intoxicating liquors with anunlawful intent or purpose, such as an intent to sell unlawfully, all competent evidence tending to show the commlaBlon of the offense byaccused or calculated to throw light onthe lawfulness or unlawfulness of his possession or on the Intent with, or purpose for, which the liquors were kept or possessed, including evidence of matters before /dr anterior to the time of 7

. . . the offenze iB admissible, provided Tt is not too remote and is kept within reasonable limits in point of time.

31102-Honorable 0. N. Humphreys, page 14 M-227

“The facts admissible In evidence include unlawful sales byeaccused on recent occasions; the ordering or receiving of, or stocking ip’with, lntoxlcatlng liquors In quantities larger than accused himself might reasonably consume; /;ind 7the indebtedness of.accused for large pur%aa& of liquor

. . . Evidence Is also admissible to showthe condition, appointments, fixtures and surroundings of the room or place where the liquors were kept

. . ,‘I Thegeneral rules which pertain to the admissiblllty of evidence which reflect crimes committed bythe’accused other than the crime for which he Is on trial are relevant. See McCormick onEvidence (West Hornbook Ed. 1954) pps. 326-333 for amore thorough dlsousalon than is here provided. Pursuant to the above discussion, questions eleven and twelve are answered in the affirmative. Proof of aprior illegal sale would beadmissible to show Intent, motive, scheme, etc ., If kept within reasonable llmlts within point of time without regard to whether such Illegal sale oocurred in awet or dry area. Possession for the purpose of sale will constltute the offense, without proof of whether the Intent is to Bell in adry or awet area. Your question number thirteen. is stated as follows:

“Question 13. Is It unlawful for anem-, ployee of acommercial airline company to pos-~ Be88in astorage area at anair terminal, which storage area has been rented bythe commercial airline company, a quantity of liquor or beer which Is to be placed onboard anaircraft where it is to be sold to passengers onboard the aircraft while the aircraft is in flight?” Aswas stated In response to questions eight, nine and ten, mere possession of intoxicating liquor or beer Is not per se Illegal under Texas lawand If merely being transported under. acarrier’s permit the possession described would be legal; otherwise, the purpose of possession would depend upon the’ Inference drawn from the evidence bythe fact finding body. Weobserve that the question Is not limited by stating that subsequent sales will take place In Texas. In order for such pos-

-1103-.

Honorable 0. N. Humphreys, page 15 

### M-227

session for the purpose of sale to constitute an offense, the possession must be for the purpose of sale In Texas. Your question number fourteen Is stated as follows:

“Question 14. Where liquor or beer Is possessed byanemployee of acommercial alrline company In astorage area at anair terminal, which storage area has been rented or leased or Is owned by such commercial airline company, maysuch liquor or beer be deemed to be ‘stored’ within the meaning of Sections &(a) or 4b) of Article I of the TexaB Liquor Control Act Article 

### 666-4, sec. (a>land sec. (b) of I Vernon‘8 Texas Penal Code)? Question fourteen Is answered in the affirmative, unless the airplane line has been Issued a “Carrier Permit” by the Texas Liquor Control Board, pursuant to Article 666-15(12) Vernon’s Penal Code, and the storage is In furtherance of such permit. Whether such storage byanemployee of the airplane line Is In furtherance of such permit, or is stored or possessed for the purpose of making Illegal sales in Texas, is aquestion of fact.

‘Your questions numbers fifteen, sixteen and seventeen are atated as follows:

“Question 15. Is It unlawful for anemployee of a commercial airline company that~is abona fide commoncarrier engaged in Interstate commerce to sell a container of liquor that contains less than six ounces of liquor to a passenger Inside anairplane, which airplane is owned by such commercial airline company and is in the air above the State of Texas at the time of the sale a.ydis In route between two points InTexas?

“Question 

### 16o Is It unlawful for anemployee of acommercial airline company that is abona fide commoncarrier engaged In Interstate commerce to sell acontainer of liquor that contains less than six ounces of liquor to apassenger inside anairplane, which airplane Is owned by such commercial airline company and is in the air

-1104-HQnorable 0. N. Humphreys, page 

### 16 : M-

### 227

above the State of Texas at the time of the sale and is in route from a point outside of Texas to apoint In Texas? "Question 17. Is It unlawful for anemployee of acommercial airline company thatls abona fide commoncarrier engaged in Interstate commerce to sell acontainer of liquor that contalna less than six ounces of liquor to apassenger ,;2 Inanairplane, which airplane is owned by such commercial airline company and Is In the alr above the State of Texas at the time of the sale and Is In route from apoint In Texas to apoint outside of Texas?"

: These questions are answered In the affirmative pursuant to.'the discussion andauthorities cited in connectlo: with questions one, two, andthree. Inaddition, the legislature has directly prohibited the retail sale of any liquor produced In whole or In part by the process of distillation, In containers of less than one-half pint, and has prohibited the retail sale of malt and vlnous liquor in containers of less than six 

### (6) ounces. .z Vernon's Penal Code. Article 666-17(15),

Your question number eighteen iB stated as follows: "Question 

### 18. Wherean employee of a commercial airline company that la abona fide common carrier engaged In Interstate commerce sells a container of liquor that contains leas than six ounces of liquor to apassenger Inside anairplane, which airplane 1s owned bysuch commercial alrline company and is in the air above the State of Texas at the time of the sale, maythe remaining )

,.,. q containers of liquor that contain less than six ounces of liquor andare In the possession of such employee Inside such airplane, be seized under a proper search warrant onthe theory that such remaining containers of liquor are possessed for the purpose of sale In Texas In violation of Section, 17 (15) of Article I of the Texas Liquor Control Act (Article 

### 666-17, (15) of Vernon's Texas Penal Code)?"

-1105-

‘/.

3% "'Honorable 0

.

Article N. Humphreys, page 17

666-17(15) provides in part: M-227

"(15) It shall be unlawful for any person to Import, change, sell, offer for sale, barter, exor possess for the purpose of sale any liquor the container of which contains less than one-half (3) pint; provided however, that In the case of malt or vinous liquor asix 

### (6) ounce e the minimum

ASa bona flde'common carrier of persons engaged fin lnterstate commerce, the airlines maybe authorized by the,Texas Liquor Control Board to transport liquor In containers 

### of less than one-half (3) pint, but not for sale, use or consumption In .Texaa + Inanswer to question 18, you are advised that once It becomes apparent that the malt, ,,ls destined for sale, use, vlnous or spirituous liquor distribution, or consumption within ~,theState of Texas or lf the~authorlzation provided forln the underscored portion of Article 666-17(15), quoted next above, has not been obtained from the Texas Liquor Control Board, then the beverage would be illicit beverage and subject to seizure *bythe State under a proper search warrant, Questlon 

### 18is therefore answered In the afflrmatlve, Your questlons numbers nineteen, twenty and twenty-one relate to the sufficiency of acomplaint or affidavit for the Issuance of search warrants, Statutory provisions directly ,pertlnent to the questions presented are set out below. Article 

### 666-20, Vernon08 Penal Code, provides in part: "Asearch warrant mayissue under Title 

### 6 of the Code of Crfmlnal Procedure for the purpose of seizing and destroying any alcoholic beverage possessed, sold, transported, e * 0 kept, or stored in violation of this Act e u~



### -1106-. .

Honorable 0. N. Humphreys, page 18 M-227

“Search wa’rrants maybe Issued byany magistrate upon the affidavit of acredible person, setting forth the nameor description of the owner or person’ In charge of the premises to be searched, or stating that his name and description are unknown, the address or description of the premises and.showing that the described premise is a place where some specified phase or phases of this act are being viola ted.

“Except as herein provided the application, issuance, and execution of any such warrant and all proceedings relative thereto shall conform as near ,a8maybe to the provisions of Title 6of the Code of Criminal Procedure

. . .I’ Article 18.09,Vernon’s Code of Criminal Procedure, provides In part:

“Awarrant to search any place suspected to be one where

. . . Implements are kept for the purpose of aiding In offenses maybe Issued byamagistrate onwritten sworn complaint, setting forth: ‘~ *

.’

“1

. Adescription of the place BUSpeCted; 2. Adescription of the kind of property alleged to be concealed at such place, or the kind of implement kept; 3. Thename, If known, of the person supi posed to have charge of such place, where

It Is alleged that It is under the charge *, of any one;

4. WhenIt is alleged that Implements are kept at aplace for the purpose of aiding in the commiaslon of the offenses, the particular offense for which such imple- ,-ments are designed must be set forth; and

. -1107: ‘

.

:. .

Honorable 0. N. Humphreys, page 19 M- 227

5. Such other facts as maybe required by Article 18~01 to establish probable cause.” Article 18.01, Vernon18 Code of Criminal Procedure, provides:
“A ‘search warrant’ IBawritten order, issued byamagistrate, and directed to a peace officer, comnrandlng himto search for personal property, and to seize the sameand bring, It before such magistrate; or it Is a like written order, commanding apeace officer to search a suspected place where it Is alleged stolen property Is commonly concealed, or Implements kept for the purpose of being used In the commlsslon of any designated offense, ?‘Nosearch warrant shall Issue for any purpose In this State unless a sworn complaint there

### for shall first be filed with the Issuing maglstrate setting forth sufficient facts to satisfy the magistrate that probable cause does In fact exist for Sta issuance.” Article 15.05, Vernon’s Code of Criminal Procedure, provides :

“The complaint shall be Bufficlent, without regard to form, if It have these substantial requlsites:

“1* It must state the nameof the accused, If known, and if not known, must give some reasonably definite description of him.
2. It must show that the accused has comj. mitted some offense against the laws of the State, either directly or that the afflant haBgood reason to believe, and does believe, that the accused has comml,tted such offense.
3. It must state the time and place of the commission of the offense, as,deflnltely as can be done by the afflant.

-1108-. .

Honorable 0. N. Humphreys, page 20 M-227

4. It must be signed bythe affiant bJ: writing his nameor affixing his mark, ,

Provisions of this nature are discussed In 48 C.J.S. 617, Intoxicating Liquors, Sec. 393c, Insofar as here pertinent as follows:

“Under the various constitutional and statutory provisions protecting against unreasonable searches and seizures, anapplication for asearch warrant for aviolation of the liquor laws must Include ,ashowing oft probable cause. For such purpose, probable cause consists of such facts and circumstances %awould reasonably induce the belief that accused Is guilty of a liquor law violation or that acriminal violation of the liquor laws Is being committed on the premises sought to be searched or that property subject to forfeiture is located on the premises sought to be searched. ,I Theexistence of probable cause does n&‘d&nd on the facts actually dlsclosed on the search, but on the showing made on the application for the warrant

. . . II

. . .

“The application maysufficiently establish probable cause by setting forth the evidentlary facts onwhich the application is based
. . . AnApplication which merely allege6 legal conclusions is Insufficient

.‘I Your questions numbers nineteen, Wenty and twenty-one are stated as follows:

“Question 19. If It is unlawful for anemployee of acommercial airline comvny to sell any type of alcoholic beverage inside anairplane that is owned bysuch commercial airline company, and is In the air above the State ,ofTexas, would ’ acomplaint or.affidavit of apassenger whopurchased such alcoholic beverage as a result of

-1109-., .

Honorable 0. N. Humphreys, page 21 M-227

such unlawful sale of such alcoholic beverage setting forth the details of the sales transaction provide sufficient probable cause for amagistrate to Issue a search warrant for the search of such airplane anda seizure, as aresult of such search, of any alcoholic beverages In possession of any employee of such commercial airline that are found on such airplane?

“Question 20. If your answer to Question 19Is ‘yes’ would such complaint or affidavit of the passenger whopurchased analcoholic beverage Inside anairplane In the air above the State of Texas as aresult of anunlawful sale of such alcoholic beverage, setting forth the details 

### of the sales transaction, be insufficient if it failed to state the County in which the sale took place?

“Question 21. If it is unlawful for an employee of acommercial airline company to sell any type of alcoholic beverages Inside an airplane that Is in the air above the State of Texas, would acomplaint prepared byapassenger, whopurchased such alcoholic beverages as a result of such unlawful sale of such alcoholic beverages, setting forth the details of the unlawful sales transaction, be Insufficient to support the Issuance of anarrest warrant, or to support a criminal prosecution, If such complaint failed to state the County in which the unlawful sale took place?” While question twenty Is somewhat ambiguous, weassume that in both questions nineteen and twenty the affidavit isimade byacredible person and in addition to setting forth the details of the unlawful sales transaction, the affidavit further states c that liquor Is possessed by the airline company for the purpose ,of making Illegal sales .In Texas. Question nineteen is answered in the affirmative in accordance with the applicable statutes quoted above and the discussion In connection with our answers to questions eight, nine, and ten, and questions eleven and twelve above.

-1110-Honorable 0. N. Humphreys, page 22 M-227

Questlon twenty Is answered In the negative.. It is annecessary for the complainant to allege the‘precise Texas County where the unlawful sale occurred whenthe unlawful sale Is alleged as an evidentlary fact only (which tends to establish a present violation of the law prohibiting the possession of liquor for the purpose of sale within the jurisdiction of the magistrate). Toestablish probable cause for the warrant to issue the complainant should In his affldavlt identify the sale as one taking place over the State (as by stating that the sale took place between two-<Texas points, or that the sale took place after an announcement had beei madethat the aircraft waswithin the State, etc.) Ques.tlon twenty-one is answered In the affirmative, as It apparently relates to acomplaint which would be used to Initiate a prosecution of the employee for making an illegal sale. Such a complaint must specify the County in which the sale occurred in order to confer jurisdiction uaon the magistrate of such county to Issue awarrant of arrest, or to support acriminal prosecution. However, If the Import of this question Is directed to a charge of possessing liquor for the purpose of sale, and the prior sale Is merely evidentlary on the question of whether the liquor is possessed for the purpose of sale, then this question is answered In the negative, for, the reasons stated in answer to question 20. Your final question Is stated as follows: “Question 22O Wherea commercial airline charges a passenger for aride on one of its airplanes and thereafter whenthe passenger 18 Inside the airplane in air above the State of Texas anemployee of such commercial airline serves aglass of liquor to such passenger free of charge, does such transaction constitute a sale of liquor by such employee of the commercial airline to such passenger?” ‘, Weare unable to give anunqualified answer to this question either in the affirmative or negative. Depending upon the circumstances presented In the particular case, acourt or jury could either find that the charge of serving alcoholic beverages was added Into the price of the airline ticket and an indirect



### c
-llll-. . ..

,.Honorable 0. N. Humphreys, page 23 M-227

“sale” took place in violation of the law or that the drinks were in reality actually free as apart of the service given to passengers andno “sale” took place, SUMMARY ------- It Is presently unlawful for anemployee of acommercial airline to sell lntoxlcatlng alcoholic beverages In the air above the State of Texas. If the sale of Intoxicating alcoholic beverages takes place in the air space over state territory, state law is applicable and such sale is Illegal without regard to the point of destination or point of origin of the airflight. Venue for the purpose of prosecut lng offenses (and jurisdiction for Issuance of awarrant) must be laid In the county where the offense charged “’ occurs. In the aase of prosecution for illegal possession for the purpose of sale, venue (and jurisdiction for issuance of awarrant) is within any county where Intoxicating alcoholic beverages are possessed for the purpose of illegal sale. In the case of prosecution for an illegal sale, venue for trial (and jurisdiction for the issuance of a warrant of arrest) Is in the county where the sa,le occurred, Anunlawful sale maybe properly alleged as an evidentlary fact In anaffidavit for the lssuante of a Bearoh warrant (and maybe proved In a prosecution) for possession for the purpose of lllegal sale, since such a prior sale would show lntent, motive, scheme, etc. In prosecution8 for posseeslon of liquor for the purpose of sale, a prior sale bythe defendant, anywhere In Texas, may be shown as evldentlary onthe question of the purpose of the possession. Y&i% very trllly,

C, MARTIN rney General of Texas

-1112-. .

Honorable 0. N. Humphreys, page 24

Prepared byLarry 3. Craddock Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W.V. Geppert Harold Kennedy~ John Banks Robert La++tlmore ' A. J'. Carubbl, Jr.. Executive Assistant

-1113-

_ . .’ : M-227 .,~

:

..