Honorable Paul Spillman 

County Attorney 

Collingsworth County 

916 West Avenue 

Wellington, Texas 79095 

Dear Mr. Spillman: 

Opinion NO. M-1160 

Re: Interpretation of the 

phrase "knowingly make 

available" an alcoholic 

beverage to a minor as 

contained in Article 

666-17 (14) (b), Vernon's 

Penal Code. 

You have requested an opinion of the Attorney General of 

Texas in reference to the following presented question: 

"I would like to have the interpretation of 

the words -- knowingly make available to -- 

as the same'are used in Article 666-17 (14- 

B) of the Vernon Penal Code of the State of 

Texas. " 

You further presented two (2) hypothetical fact situations 

or examples involving the presence of a minor in an automobile 

containing alcoholic beverages in the possession of an adult. 

We will confine this opinion to the question presented as our 

conclusion will, in all probability, assist you in analyzing 

the fact situations. 

Article 666-17, Subdivision (14) (b) is a provision of the 

Texas Liquor Control Act and was enacted in its present form in 

~1969 (61st Leg. R.S., 1969, ch. 38, p. 80). It provides as 

follows: 

"It shall be unlawful to purchase an 

alcoholic beverage for or give, or knowingly 

make available, an alcoholic.beverage to a 

person under the age of twenty-one (21) years 

unless the purchaser, person making available, 

or giver is the parent, legal guardian, adult 

husband or adult wife of the person for whom 

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Honorable Paul Spillman, page 2. (M-1160) 

the alcoholic beverage is purchased, made 

available, or to whom it is given. A 

person who violates a provision of this 

paragraph is guilty of a misdemeanor and. 

upon conviction is punishable by a fine 

of not less than One Hundred Dollars 

($100) nor more than Five Hundred Dollars 

($500)." (Emphasis added). 

Your inquiry actually raises two questions, to-wit: (1) 

what is meant by "knowingly making available" an alcoholic 

beverage to a minor, and (2) is knowledge of the age of the 

minor an element of the offense of knowingly making available 

an alcoholic beverage to a minor? 

The word "knowingly", when used as a part of the statutory definition of a criminal offense, has been stated to 

have-no single fixed meaning. Finn v. United States, 256 F.2d 

304 (4th Cir. 1958). In most instances its meaninq rests upon 

the character of the offense charged. State v. Contreras, 253 

A.2d 612 (R.I.Sup. 1969); R. D. Lowrance, Inc. v. Peterson, 

185 Neb. 679, 178 N.W.2d 277 (1970). "Knowinqly" in the criminal sense has been stated to mean that a person, knowing 

about what he is doing, does so wilfully, intentionally and 

understandingly. Commonwealth v. Althenhaus, 317 Mass. 270, 

57 N.E.2d 921,(1944); Rose v. State Board of Registration for 

the Healing Arts, 397 S.W.2d 570 (Mo.Sup., 1965); United States v. Martinez, 73 F.Supp. 403 (M.D.Pa. 1947); United States v. 

Smith, 249 F.Supp. 515 (S.D.Idaho 1966); Standard Oil Co. of 

Texas v. United States, 307 F.2d 120 (5th Cir. 1962). 

"Knowingly' is sometimes used as synonymous and in conjunction with "wilfully". Garza v. State, 47 S.W. 983 (Tex. 

Crim. 1898) ; Good v. Commonwealth, 155 Va. 996, 154 S.E. 477 

(1930); People v. Odom, 19 Cal.App.Zd 641, 66 P.2d 206 (1937); 

Lamb v. State, 293 P.2d 624 (Okla.Crim. 1956); State v. Booton, 

85 Idaho 44, 375 P.2d 536 (1962); United States v. Molin, 244 

F.SUDD. 1015 (D.Mass. 1965). It has also been used in the 

sensyof "intentionally". .Cheffer v. Eagle Discount Stamp Co., 

156 S.W.2d 591 (Mo.Sup. 1941); Commonwealth v. Sarricks, 161 

Pa.Sup. 577, 56 A.2d 323 (1948); United States v. Loveknit 

Mfg. Co., 90 F.Supp, 679 (N.D.,Tex. 1950). 

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Honorable Paul Spillman, page 3. (M-1160) 

"Available" has a general, common meaning -- capable of 

being made use of, or accessible. Nemo v. State, 178 Misc. 

34 N.Y.S.2d 40 (1942): Brown v. State, 200 

286, 

Miss. 881, 27 So.2d 

838 (1946); Garrison.Independent School District V. McDuffie, 

414 S.W.2d . . .._.I 492 (Tex.Civ.App. 1967, error ref. n.r,.e.); Duncan v. 

Unitei 1 States, 368 F.2d 98 (5th Cir. 1966). 

"Knowingly" appears to be the key word in the statute under inquiry. This word has been stated to describe a conscious 

and deliberate quality which negates accident, inadvertance, 

mistake, or other innocent 

man, 102 F.Supp. 87 (S.D.Ca 

Misc. 314, 136 N.Y.S.2d 688 

392, 240 N.E.2d 595 (1968); 

Dalel, 280 F.Supp. 938 (N.D 

test 294 F.2d 168 (5th Cir. 

315 F '.2d 407 (5th Cir. 1963 

reason. United States v. Schneiderlif. 1951) ?eople v. Cre a", 206 

by, 

State v. 

-Ill. 1968); Popeko v. United Sta1961); Fromberg, Inc. v. Thornhill, 

1. "Knowingly", when used in a 

criminal statute, imports culpable intent as a necessary element of the offense. Erby v. State, 181 Tenn. 647, 184 S.W.2d 

14 (1944); People v. McHugh, 271 App.Div. 135, 63 N.Y.S.2d 319 

(1946); State v. Kelley, 225 La. 495, 73 So.2d 437 (1954); 

Graves v. United States, 252 F.2d 878 (9th Cir. 1958); Felton v. 

United States, 96 U.S. 699 (1878). 

. 

From any analysis of the decisional authority above and in 

response to the first portion of your inquiry, in order to be 

convicted of the offense of making an alcoholic beverage available to a minor under Article 666-17, Subdivision (14) (b), 

the alcohol must be made accessible to,the minor. In addition, 

and most importantly, the person charged must have, with a culpable motive, intentionally and deliberately, placed an alcoholic 

beverage where it is accessible to the minor with the intent that 

the minor partake of the beverage. The use of the word "knowingly " in a criminal statute narrows the scope of the enactment by 

exempting innocent or inadvertent conduct from its proscription. 

Landry v. Daley, supra. "Knowingly" imports something more 

than carelessness and signifies guilty knowledge, evil or bad 

intent. People v. McHugh, supra. The statute would not cover 

a situation in which the alcoholic beverage was made accessible 

to the minor "unwittingly", "unconsciously", or through accident, 

carelessness, or mistake. 

For example, in Simpson v. State, 151 S.W. 303 (Tex.Crim. 

1912), the minor testified that he was at a gathering at which 

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Honorable Paul Spillman, page 4. (M-1160) 

the defendant was present. He and the defendant went outside 

of the yard gate where the defendant picked up a bottle of 

whisk 

a dis Y' 

took a drink, and placed it by a ost. 

ante and the minor picked up the bo i tle 

He stepped back 

and took a drink 

of whisky from it. The Court reversed the conviction stating 

there was no evidence the defendant gave the minor any intoxicating liquor or told him where it could be found. 

In Ethridge v. State, 141 S.W. 89 (Tex.Crim. 1911), the 

appellant was convicted for "knowingly" giving and delivering 

intoxicating liquor to a minor. The minor was in a group of 

adults who were drinking the liquor. When the bottle was placed 

on the ground, the minor picked it up and took a drink from the 

bottle. The court had before it the testimony of the minor that 

"no one told me not to drink the whisky, nor did they in any 

manner try to stop me; they did not have time; I was too quick 

for them". The minor further testified that the defendant "did 

not give his permission for me to drink it". The Court reversed 

the conviction for insufficient evidence. 

The second portion of your inquiry concerns use 'of the word 

"knowingly" in connection with "knowledge" of the minority of 

the person to whom the alcoholic beverage is made available. In 

order,to constitute the offense of knowingly making available an 

alcoholic beverage to a minor, the evidence must show, not only 

the minority, but knowledse of that fact on the part of the accused. Ear&t v. State,-201 S.W. 

State, 72 S.W. 169 (Tex.C 

175 (Tex.Crim: 1918); Gray v. 

rim. 1897). Henderson v. State, 38 S.W. 

a mTex.Crim. 1897); People v. Shapiro, 4 N.Y.Zd 597, 152 

N.E.2d 65 (1958); Smith v. State, 115 S.W.2d 412 (Tex.Crim. 

1938). Mere proof of the age of the minor by the State is insufficient. Gray v. State, supra; Earnest v~. State, supra; 

Smith v. State, supra. 

"Knowingly" as used in the statute under consideration does 

not involve absolute knowledge or intent. United States v. Weisman,.83 F.2d 470 (2nd Cir. 1936). 

TState, 8 Md.App. 

The Court stated in Greenway 

194, 259 A.2d 89 (19691, in dealing with 

the subject of knowledge of a fact, that a defendant cannot 

deliberately shut his eyes so that he would not have knowledge 

of what otherwise be obvious to his view. He may be placed on 

notice of the apparent minority of the person to whom the alcoholic beverage is made available and be required to call for 

-5657- 
Honorable Paul Spillman, page 5. (M-1160) 

inquiry. Rosen v. United States, 161 U.S. 30 (1896); Iberville 

Land Co. v. Amerada Petroleum Corporation, 141 F.2d 384 (5th 

Cir. 1944) . 

"Knowingly" has been stated to mean such information as 

would cause a person of ordinary prudence to make further inquiry. Feldman v. South Carolina Tax Commission, 303 S.C. 49, 

26 S.E.2d 22 (1943); cf., American Express Co. v. Commonwealth, 

171 Xy. 1, 186 S.W. 887 (1916). In State v. McCormick, 56 

Wash. 469, 105 P. 1037 (1909), a Washington Code provided that 

every person who shall "knowingly" sell or give a minor intoxicating liquors without the written consent of his parent or 

guardian shall, on conviction, be fined, etc. The Court held 

that an instruction that the sale was made knowingly within 

such statute if defendant's bartender knew, or in the exercise 

of reasonable prudence, should have known that his customer was 

a minor at the date of the alleged sale, corectly defined the 

term "knowingly". 

Factors that may be taken into consideration and proved by 

the State to show that a defendant should have known that he 

was making an alcoholic beverage available to a minor are evidence of age, appearance of the minor, size of the minor, and 

years known by the defendant. Sears v. State, 34 S.W. 124 (Tex. 

Crim. 1896). Also, the State may show the minor informed the 

defendant of.his age some time prior thereto. 

State, 176 S.W. 331 (Tex.Crim. 1943). The State =-F- may 8 ow the 

minor furnished the defendant with identification showing him 

to be under twenty-one. Slawson v. State, 276 S.W.2d 811 (Tex. 

Crim. 1955). The State may use the testimony of a third person that the minor did not appear to him to be twenty-one years 

of age, but the third person may not testify as to the effect 

of the minor's appearance on others. Ferguson v. State, 95 

S.W. 111 (Tex.Crim. 1900). 

SUMMARY, 

In order to be convicted of "knowingly," 

~,making an alcoholic beverage available to 

a minor under Article 666-17, Subdivision 

(14) (b), Vernon's Penal Code, a defendant 

must, with awareness and a culpable motive 

have intentionally and deliberately, placed 

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Honorable Paul Spillman, page 6. (M-1160) 

said alcoholic beverage where it is accessible to the minor with the intent that 

the minor partake of the alcoholic beverage. 

Further, the person making available the 

alcoholic beverage must have known that the 

recipient was a minor or had such information from his appearance or otherwise 

as would lead a prudent person to believe that such person was a minor, and 

if followed by inquiry must bring knowledge of that fact home to him. 

y General of Texas 

Prepared by Jay-Floyd 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Gordon Caes 

Harriet Burke 

Lonny Zwiener 

David Longoria 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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