Honorable 0. N. Humphreys 

Acting Administrator 

Opinion M-227 

Texas Liquor Control Board 

Sam Houston 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 by an 

official opinion, a series of twenty-two questIoni relating 

to the legality or lllega~lty. 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 boundaiies. 

> The initial question which yolk have presented Is stated 

as follows: 

“Question 1 0 Is It unlawful for an employee 

of .a commercial airline to sell liquor or beer, 

which liquor or beer was not manufactured by the 

process of distillation and does not contain dlstilled spirits, to a passenger inside an airplane 

which airplane is owned by such commercial airline 

and 1s in the air above the State of Texas and is 

In route from a point 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 we will 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, we will 

consider further that liquor or beer not manufactured by a 

process of distillation and not containing distilled spirits 

Includes any intoxicating alcoholic beverage manufactured by 

(or containing alcohol manufactured by) fermentation or other 

means without regard to whether such beverage is commonly designated liquor, beer, malt liquor, wine or by some other 

nomenclature. 

Under the Twenty-First Amendment to the Constltutlon of 

the United States, the states have broad regulatory powers over 

liquor traffic. The Twenty-First Amendment has in fact largely 

relieved the states of the limitations set by the Commerce and 

Supremacy clauses of the Constitution of the United States, Insofar as regulations pertaining to traffic in Intoxicating 

liquors Is concerned e On the 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 PaEk Co., 304 U.S. 518, 82 L.Ez. 1502, 58 S-09 

(1941) Hostetter v. Idlewlld Liquor Corp 

2d 350; 84 S Ct 1293 (19b4). Dept 

377 U.S. 324, 12 L-Ed. 

e of Alcihollc Beverage Control 

v. Ammdx Wardhoise, 378 U.S.‘124 12 L Ed 2d 743 84 S Ct lb57 

lgb3) Johnson v, Yellow Cab T&sit 60.: 321 U’.S. 381, 68 L.Ed. 

14, 64 3 Ct 622 (1944 . Epstein v. Lordi, 261 F.Supp, 921 (D.C. 

N,J., 1966), ‘affirmed, 6 3 Ct lOb’(1967r 15 C.J.S, 739, Commerce, Set, 99; 48 C.J.S. 1~4,‘Intoxicatin~ Liquors, Sec. 33. 

The sovereign states possess jurisdiction of the air space 

above their territories and may exercise police powers therein 

except where the same have been granted to or assumed or preempted by the federal government D 2 C,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, and authorities 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. The committee 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 whom was referred the bill (H,R. 

8384) to amend the 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 

pass D 

,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 n. over a State nose Deculiar and 

extremely tEoublesome problem; of enforcement 

which are not present when such crimes take 

place on the ground. When a criminal moves the 

scene of his ectlvlty to an aircraft In flight 

he is able to take advantage of practical and 

physical difficulties that may seriously impair effective apprehension and prosecution, 

particularly If the offense Is one against the 

law of a State 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 

a particular act occurred In the airspace over 

that State -- and in some cases, under State law, 

It would be necessary to prove that the offense 

waa committed over a particular county In the 

- 1092 - 
Honorable 0. N. Humphreys, page 4 M- 227 

State e It Is obvious that such proof may be 

very difficult and often impossible If the 

offense la comml- ,,Lsr:on Jo - a’ jet aircraft traveling 

at 600 miles per hour at an altitude of 30,000 

feet. 

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

bt Id 

pyov%d 

h b th F d 1 dStt 1 

;oF ~~~ls~mentef~?th~nsameaa~t ,aYde In 

addition to the State criminal 1a.w: 

“As is well known, the Federal Government 

does not ,provlde a general crltilnal code for all 

crimes commltt d I th a es. 

the province oef th: va%oEs gtates. 

hat 1s 

However, 

criminal codes of the States are at times SUDplemented by Federal law In fields where the‘ 

Federal Government has responsibilities. 

“We wish to emphiisize that it is not our lntent to divest the States of any jurisdiction 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. 

“One difficulty here ‘Is that the State above 

which the- crime may have been committed is often 

not the State in which. the aircraft lands o The 

second State has 3jo jurisdiction, and cannot even 

arrest the criminal a If the State over whose 

territory the crime occurred Is disposed to act, 

it first ‘must collect the evidence necessary to 

establish that a crime 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 a Federal law, the offender could 

be taken Into custody by Federal law-enforcement 

agents when the aircraft lands and criminal prosecution Instituted. 

“This, we want to make clear, does not 

any State jurisdiction but would only supp T-T@ emen 

t*-” 2 U S 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 a state, 

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 some acts or 

omissions occurring fn the airways, but that penal laws relating 

to liquor are in some mysterious 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 

0 e D minimum standards 0 D ~ to provide adequate1 for national 

security and safety in air commerce.” ,49 U.S.C, 1921(a)(6), 

Pursuant to such authority the following regulation has 

been issued by the Administrator: 

7 “Section 121.575 - Alcoholic Beverages 

“(a) No person may drink any alcoholic 

beverage aboard an aircraft unless the certificate holder operating the aircraft has 

served that beverage to him, 

- 1094 = 
Honoi+ble 0. N. Humphreys, page 6 M-227 

“(b) No certificate holder may serve 

any alcoholic beverage to any person aboard 

any of Its aircraft if that person appears 

to be Intoxicated. 

,. “(c) No certificate holder may allow 

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 

,I person to comply with paragraph (a) of this 

’ section, or any disturbance caused by a peraon who appears to be Intoxicated aboard any 

of Its aircraft.’ 

It Is argued on behalf of interested airlines that the 

above quoted provision reflects an authorization 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, we note 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 by state penal 

laws. Aaaumlng arguendo that the administrative regulation 

should be read as a departure 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 by the United States Congress, but must fall, since 

an administrative agency cannot enact policy Inconsistent with 

policy provided by the Congress, 

The Federal 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 acts 
Honorable 0. N. Humphreys, page 7 M-227 

or omissions in flight which should be considered unsafe, 

At other times both State and Federal Governments have bben 

directly concerned with defining and enumerating acts or 

omissions which should be considered illegal or prohibited. 

We are not here concerned with the issue of whether certain 

acts are compatible with the minimum standards of safety set 

by the Federal Government, but rather we are concerned with 

the issue of whether the acts In question are legal under 

state penal law which 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 made subject to license, 

aa a general rule all persons who engage In the 

business of selling Intoxicating liquors, or who 

m&ke such selling a part of their business, or 

who follow a business 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 o Q - sell, 

Import 9 export, transport, distribute, warehouse, store, possess, fir 7 possess for the 

purpose of sale 0 0 0 ally Ilquor in this State, 

0 a 0 provided that the right or privileges 

so to do are granted by any provision of this 

.Act o o o Any act fif the nature described 7 

,done by any person-which is not granted inthis Act is hereby declared to be unlawful.” 

A similar 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. 

A reading 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 a manner as 

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

has been specifically authorized by the 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 make it clear 

that the act was to extend to aircraft. See, for example, 

Article 666-15(12) (which, we recently 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, no permit 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 and authorities cited, 

your first question Is therefore answered Wthe affirmative 

-- I.e., It Is presently unlawful for an employee 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 by the legislature; sales In the airspace above 

the state are subject to state laws ; and there Is presently 

provided no license or permit by which sales of lntoxlcatlng beverages aboard aircraft may be legally conducted In 

Texas D 

Your second and third questions are stated as follows: 

“Question 2 0 Is It unlawful for an employee of a commercial 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 a passenger 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 a point outside of Texas? 

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

“Question 3. Is it unlawful for an employee of a commercial alrline to sell liquor 

or beer, which liquor or beer w;?‘iisii ot manufactured 

brtherocess of distillation and does not contain distilled solrits. to a oasseneer 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 a point outside of Texas to a point in Texas?” 

(Emphasis added. ) 

Questions 2 and 3 are answered in the affirmative 

pursuant to the discussion and authority cited in answer 

to the first question. The reach of Texas Penal Laws is 

co-extensive with state borders, and, the appllca billty of 

such laws would therefore not be affected by the point of 

origin or point of destination of an airflight. 

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 3 is ‘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 a wet area 

or dry area and as to how the precise alcoholic beverage involved Is manufactured or chemically composed, the .sise of 

the paokage in which it Is contained, eta, The precise provisions of the Act which might be violated by any 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 3 is ‘yes’ 

would the State have to prove that the offense 

oocurred in a certain county for the purpose 

of establishing venue for prosecution?” 

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

Article 

provides: 

13.17, Vernon ‘8 Code of Crimlna 1 Procedure 

M- 227 

“An offense committed on board a vessel 

which is at the time upon any navigable water 

within the boundaries of this State, may be 

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 no provision 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 

a sale 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~e ie 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’t be 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 an employee of a commercial airline to sell distilled 

spirits by the drink to a passenger 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 two points In 

Texas?” 

This question Is answered in the affirmative pursuant to 

the diSCuSBion and authority cited in answer to the first question 

posed e 

- 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, means any 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 

human consumption on the premises where sold. 

"(b) It shall be unlawful 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 be necessary 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 7 Is 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 a commercial airline to 'possess lnBide an airplane, which airplane Is owned by 

such commercial airline and Is in the air above 

the State of Texas and Is on a flight in route 

between two points In Texas, a quantity of liquor 

or beer from which was taken liquor or beer that 

was sold to a passenger while such airplane was 

on such flight? 

-1100- 
Honorable 0. N. Humphreys, page 12 M- 227 

“Question 9. IS It unlawful for an employee of a commercial alrllne to possess lnside an airplane, which airplane IS owned by 

such commercial airline and Is on the ground 

at an air terminal In County X of the State of 

Texas, a quantity of liquor or beer from which 

was taken liquor or beer that was sold to a 

paBsenger Inside such airplane when such alrplane was In the air above the State of Texas 

In route from a point In Texas to the air terminal In County, X of the State of .Texas? 

“Question 10. Is it unlawful for an employee of a commercial airline to possess lnaide an a+rplane, which airplane Is owned by 

such commercial airline and la on the ground 

at an air terminal in County X of 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 a point outside of Texas to the 

air terminal In County X of the State of Texas?” 

The above 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 a wet 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. A conviction based on &uch jury fln&lng would be 

sustained. Brooks v. State, 7 S.W.2d 768 (Tex. Crlm. 1940); 

Morrison v. State, 230 S.W.2d 08 (Tex. Crlm. 1950).” However, 

no act of poseession of Intoxicants is Illegal per se unaer 

‘Texas law and It is necessary for a presumption of illegal 

purpose to be drawn by’the fact flndin body in order to sustain a conviction. Walton v. State, 1 if 3 S.W.2d 203, 204 (Tex. 

Grim. 1942); De Hart v. State, 36 S.W.2d 168 (Tex. Grim. ~1931); 

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

Piper v. State, 34 S.W .2d 283 (Tex. Crlm. 1930). Proof of 

Drier salea would be sufflcent to establish a Drlma facie case 

bf~posses~lon for the purpose of sale but a jury 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 an accused Is being 

prosecuted for unlawful possession of liquor 

or beer for the purpose of sale In a wet area 

without a permit or license, Is evidence of a 

recent prior unlawful sale of alcoholic beverages by the accused In a dry area admissible 

to prove the Intent of the accused to unlawfully 

sell the liquor or beer In question in a wet 

area without a permit or license. 

"Question 12. Where an accused Is being 

prosecuted for unlawful possession of liquor 

or beer 'for the purpose of sale in a dry area, 

Is evidence of a recent prior unlawful sale of 

alcoholic beverages by the accused In a wet 

area without a permit or license admissible to 

prove the intent of the accused, to unlawfully 

sell the liquor or beer in question in a dry 

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 an unlawful 

intent or purpose, such as an intent to sell 

unlawfully, all competent evidence tending to 

show the commlaBlon of the offense by accused 

or calculated to throw light on the 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. 

3 1102- 
Honorable 0. N. Humphreys, page 14 M- 227 

“The facts admissible In evidence include 

unlawful sales bye accused on recent occasions; 

the ordering or receiving of, or stocking 

ip’with, lntoxlcatlng liquors In quantities 

larger than accused himself might reasonably 

consume; /;ind 7 the indebtedness of. accused for 

large pur%aa& of liquor . . . Evidence Is also 

admissible to show the condition, appointments, 

fixtures and surroundings of the room or place 

where the liquors were kept . . ,‘I 

The general rules which pertain to the admissiblllty of 

evidence which reflect crimes committed by the’accused other 

than the crime for which he Is on trial are relevant. See 

McCormick on Evidence (West Hornbook Ed. 1954) pps. 326-333 

for a more thorough dlsousalon than is here provided. 

Pursuant to the above discussion, questions eleven and 

twelve are answered in the affirmative. Proof of a prior illegal sale would be admissible to show Intent, motive, scheme, 

etc ., If kept within reasonable llmlts within point of time 

without regard to whether such Illegal sale oocurred in a wet 

or dry area. Possession for the purpose of sale will constltute the offense, without proof of whether the Intent is to 

Bell in a dry or a wet area. 

Your question number thirteen. is stated as follows: 

“Question 13. Is It unlawful for an em-, 

ployee of a commercial airline company to pos-~ 

Be88 in a storage area at an air terminal, which 

storage area has been rented by the commercial 

airline company, a quantity of liquor or beer 

which Is to be placed on board an aircraft where 

it is to be sold to passengers on board the aircraft while the aircraft is in flight?” 

As was stated In response to questions eight, nine and 

ten, mere possession of intoxicating liquor or beer Is not 

per se Illegal under Texas law and If merely being transported 

under. a carrier’s permit the possession described would be 

legal; otherwise, the purpose of possession would depend upon 

the’ Inference drawn from the evidence by the fact finding body. 

We observe 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 by an employee of a commercial alrline company In a storage area at an air terminal, which storage area has been rented or 

leased or Is owned by such commercial airline 

company, may such liquor or beer be deemed to 

be ‘stored’ within the meaning of Sections &(a) 

or 4 b) of Article I of the TexaB Liquor Control 

Act I Article 666-4, sec. (a>l and sec. (b) of 

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 by an employee 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 

a question of fact. 

‘Your questions numbers fifteen, sixteen and seventeen are 

atated as follows: 

“Question 15. Is It unlawful for an employee of a commercial airline company that~ is 

a bona fide common carrier engaged in Interstate 

commerce to sell a container of liquor that contains less than six ounces of liquor to a passenger 

Inside an airplane, 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.yd is In route between two points In Texas? 

“Question 16 o Is It unlawful for an employee of a commercial airline company that is 

a bona fide common carrier engaged In Interstate 

commerce to sell a container of liquor that contains less than six ounces of liquor to a passenger 

inside an airplane, 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 

a point In Texas? 

"Question 17. Is It unlawful for an employee of a commercial airline company thatls 

a bona fide common carrier engaged in Interstate 

commerce to sell a container of liquor that contalna less than six ounces of liquor to a passenger 

,;2 In an airplane, 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 a point In Texas to a point outside 

of Texas?" 

: These questions are answered In the affirmative pursuant 

to.'the discussion and authorities cited in connectlo: with 

questions one, two, and three. 

In addition, 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. Where an employee of a commercial airline company that la a bona fide common 

carrier engaged In Interstate commerce sells a 

container of liquor that contains leas than six 

ounces of liquor to a passenger Inside an airplane, 

which airplane 1s owned by such commercial alrline company and is in the air above the State of 

Texas at the time of the sale, may the remaining 

) 

,.,. qcontainers of liquor that contain less than six 

ounces of liquor and are In the possession of such 

employee Inside such airplane, be seized under a 

proper search warrant on the 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)?" 

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"'Hono ra b le 0 . 

Article 

N. Humphreys, page 17 

666-17(15) provides in part: 

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"(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 a six (6) ounce 

e the minimum 

AS a bona flde'common carrier of persons engaged fin lnterstate commerce, the airlines may be 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 + 

In answer 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 

~,the State 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 

*by the State under a proper search warrant, Questlon 18 is 

therefore answered In the afflrmatlve, 

Your questlons numbers nineteen, twenty and twenty-one 

relate to the sufficiency of a complaint 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: 

"A search warrant may issue 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 ~ 

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

“Search wa’rrants may be Issued by any 

magistrate upon the affidavit of a credible 

person, setting forth the name or 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 ,a8 may be to the provisions of Title 6 of the Code of Criminal 

Procedure . . .I’ 

Article 18.09, Vernon’s Code of Criminal Procedure, 

provides In part: 

“A warrant to search any place suspected 

to be one where . . . Implements are kept for 

the purpose of aiding In offenses may be Issued 

by a magistrate on written sworn complaint, 

setting forth: ‘~ * .’ 

“1 . A description of the place BUSpeCted; 

2. A description of the kind of property 

alleged to be concealed at such place, or 

the kind of implement kept; 

3. The name, 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. When It is alleged that Implements are 

kept at a place 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 

. 

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

5. Such other facts as may be required by 

Article 18~01 to establish probable cause.” 

Article 18.01, Vernon18 Code of Criminal Procedure, provides: 

“A ‘search warrant’ IB a written order, 

issued by a magistrate, and directed to a peace 

officer, comnrandlng him to search for personal 

property, and to seize the same and bring, It 

before such magistrate; or it Is a like written 

order, commanding a peace 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, 

?‘No search warrant shall Issue for any purpose In this State unless a sworn complaint therefor 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 name of 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 

haB good 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. 

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

4. It must be signed by the affiant bJ: 

writing his name or 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, an application for a search warrant for a violation 

of the liquor laws must Include ,a showing oft 

probable cause. For such purpose, probable 

cause consists of such facts and circumstances 

%a would reasonably induce the belief that 

accused Is guilty of a liquor law violation 

or that a criminal 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 The existence 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 may sufficiently establish probable cause by setting forth the 

evidentlary facts on which the application 

is based . . . An Application 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 an employee of a commercial airline comvny to sell 

any type of alcoholic beverage inside an airplane 

that is owned by such commercial airline company, 

and is In the air above the State ,of Texas, would ’ 

a complaint or.affidavit of a passenger who purchased such alcoholic beverage as a result of 

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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 a magistrate 

to Issue a search warrant for the search of such 

airplane and a seizure, as a result 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 

19 Is ‘yes’ would such complaint or affidavit 

of the passenger who purchased an alcoholic beverage Inside an airplane In the air above the 

State of Texas as a result of an unlawful 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 a commercial airline company to 

sell any type of alcoholic beverages Inside an 

airplane that Is in the air above the State of 

Texas, would a complaint prepared by a passenger, 

who purchased 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 an arrest 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, we assume 

that in both questions nineteen and twenty the affidavit isimade 

by a credible 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. 

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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 when the 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). 

To establish 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 made that the aircraft was within the 

State, etc.) 

Ques.tlon twenty-one is answered In the affirmative, as It 

apparently relates to a complaint 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 a warrant of arrest, or to support a criminal 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 22 O Where a commercial airline 

charges a passenger for a ride on one of its 

airplanes and thereafter when the passenger 18 

Inside the airplane in air above the State of 

Texas an employee of such commercial airline 

serves a glass 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?” ‘, 

We are unable to give an unqualified answer to this question 

either in the affirmative or negative. Depending upon the circumstances presented In the particular case, a court 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 

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,. 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 a part of the service given 

to passengers and no “sale” took place, 

SUMMARY 

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It Is presently unlawful for an employee 

of a commercial 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 a warrant) 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 a warrant) 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, 

An unlawful sale may be properly alleged as 

an evidentlary fact In an affidavit for the lssuante of a Bearoh warrant (and may be 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 by the defendant, anywhere In Texas, may 

be shown as evldentlary on the question of the purpose of the possession. 

Y&i% very trllly, 

C, MARTIN 

rney General of Texas 

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Honorable 0. N. Humphreys, page 24 

Prepared by Larry 3. Craddock 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. V. Geppert 

Harold Kennedy~ 

John Banks 

Robert La++tlmore ' 

A. J'. Carubbl, Jr.. 

Executive Assistant 

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