Hon. Bert~Ford

Administrator Texas Llquo? ControlBoard Austin, Texas

Dear Sir: OpinionNO. 0-1882~ Re: Right of lnaivlaualto pin-chase' liquor for own'

use lri

wet county and transport the same to his home Fn dry county.
This will acknowledge receipt of your letter of January 22, 1940, inwhich you submlt for an oplnlon of this department the~.questlons:

"Under the law Is it pertilsslble f~or a person living in Collln County/which Is a dry county, to ~drlvehis automobile toDallas County,which Fs a wet county, and.there purchasewhiskey or other intoxicatingliquor for his own personal use, and haul the sameback to his home in Collln Coiinty, under Section 23 (a)~,' Article I, of the Texas Liquor ControlAct, and not be guilty of a law violation?

"In such case is Lt necessary for him to have Fn his. possessionwhile hauling such liquor 3 written statementrequired~bySection 27 (al, Article I, of the TelZas Liquor ControlAct? In this connectionwe call your attention to Sectidn 4 (,b), Article I',

TexaP Liquor ControlAct, which prohibits the transportation of liquor in a dry Wea,,and to Section 23 (a),which provides that
a person who purchases alcoholic beverages for hLs own consumptionmay transport same from a place where the sale thereof is legal to a placewhere the possession thereof is legal; ardalso Section 27 (a),Article I,which provides that It shallbe unlawful for any person to transpprt upon any public hlghway, street or alley, any'lfqu6r unless the person in charge of such shipment shall have l&his possession, present and available, a written statement signed by the shippergiving certain lnformation."Hon. Bert Ford, page 2 o-1882

Paragraph (b) ofArticle 666-4 of the Penal Code reads:
"(b)

. It shallbe unlawful for any person In any dry area to manufacture,distill, brew, sell, possess for the purpose of sale, import Into this State, export from the State, transport, distribute,warehouse, store, solicit or take orders for, or for the purpose of sale to bottle, rectify,blend, treat, fortify,mix, or process any liquor,distilled spirits,whiskey, gin, brandy,wine, rum, beer or ale."

Thus it is clearly seen that it Is not unlawful to possess llluor In a dry area but t$e offense Isthe possession of~llquor for the purpose of sale

. An informationcharging that defendant possessedwhiskey does not charge an offense when not charging that thewhiskey was possessed for the purpose of sale. Alexander vs. State, 113 SW 2nd 545.

It then becomes necessary to determinewhether or not the word "transport",used in the above quoted articlewould prevent the purchaser of the liquor, under the facts statedby you, from transporting the same to his home in a dry county.

Paragraph (1) of Article 666-23a, of the Penal Code reads:
"(1). It Isprovided tha,t any person who purchases alcoholicbeverages for his own consumption may transport same from a placewhere the sale thereof is legal to a place where the possession thereof is legal."

We conclude that suchprovision, next hereinabove quoted, is a defensive statutedesigned to afford one accused of transporting liquor in violation of paragraph (b) of Article666-4, supra, a completedefense against the charge so made. In otherwords, upon the accused making proof that he
was transportingalcoholicbeverages for his own consumption from a point of purchase to a given destination, his innocence would be established.

It is to be~noted,however, that the defense afforded by the hereinabovequoted section is followedby paragraph (2) of the same articlewhich reads:

"(2)

. Possessionof'more than one'quart of liquor in a dry area shallbe prima facie evidence that It ispossessed for the purposesof sale."Bon. Bert Ford, page 3 o-1882

We must necessarily conclude that the mere possession and~transportation of liquor, under the facts presentedby you, does not render the one inpossession thereof guilty of
an offense. As pointed out, the possession of more than one quart by any person within a dry area is prima facie evidence of Itspossession for the purpose of sale. Natiurally, proof by the accused of itspossession for his own use and not for the purpose of salewould be a matter of defense.

We next turn our attentlon to the proposition of whether or not it is necessary for one transporting liquor, under the provisions of paragraph (l), Article 666~23a, supra, to,have a written statementrequired by paragraph (a),Article 666-27 of the Penal Code. Such section reads:

"(a). It shallbe unlawful for any person to transportinto this State or upon any public highway, street, or alley in this State any liquor unless the person accompanying or in charge of such shipment shall have present and available for exhibitionand inspection,a written statement furnished and signedby the shipper, showing the
name and address of the consignor and the consignee, the origin and destination of such shipment,and such other informationas may be required by rule and regulation of the Board. It shallbe the duty of the person in charge of such shipmentwhile the same isbeing transported, to exhibit such written statement to the Board or any of its authorized representatives or to any peace officermaking demand therefor,and it shallbe unlawful for any person to fail or refuse to exhibit the same upon such demand. Such written statement shall be accepted by such representative or officer as prima facie evidencz of the lawful right to transport such liquor.

We th.inkthis section has reference to shipment of liquor, as that term is ord~inarily used and understood, as where a person orders liquor and it Is delivered to him either by common carrier or agent for the consignee or consignor. It is our opinion that the same is not applicable to the situationpresentedby your statement of facts.Hon. Bert Ford, page 4 0-1882

Yours very truly

ATTORNEYGENERAL OF TEXAS

,Bys/LloydArmstrong Lloyd Armstrong Assistant

LA:AW:wc

s/Gerald C. Mann Approved Opinion CommitteeBy s/BWB Chairman