Honorable Paul Spillman

County Attorney Collingsworth County 916West Avenue Wellington, Texas 79095

Dear Mr. Spillman: Opinion NO. M-1160

Re: Interpretation of the phrase "knowingly make available" an alcoholic beverage to aminor as contained inArticle 666-17 (14) (b),Vernon's Penal Code.

You have requested an opinion of theAttorney General of Texas in reference to the following presented question:

"Iwould like to have the interpretation of thewords -- knowingly make available to -- as the same'are used inArticle 666-17 (14- B) of theVernon Penal Code of the State of Texas."

You further presented two (2)hypothetical fact situations
or examples involving the presence of aminor 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 aprovision of the Texas Liquor Control Act andwas enacted in its present form in ~1969 (61stLeg. R.S., 1969, ch. 38, p. 80). It provides as follows:

"It shall be unlawful topurchase 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 forwhom

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the alcoholic beverage ispurchased, made available, or towhom it is given. A person who violates aprovision of this paragraph is guilty of amisdemeanor and. upon conviction ispunishable 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 ismeant by "knowingly making available" an alcoholic beverage to aminor, and (2)is knowledge of the age of the minor an element of the offense of knowingly making available
an alcoholic beverage to aminor?

The word "knowingly", when used as apart 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 (4thCir. 1958). Inmost instances itsmeaninq 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, 185Neb. 679, 178N.W.2d 277 (1970). "Knowinqly" in the criminal sense has been stated tomean that aperson, knowing about what he is doing, does sowilfully, intentionally and understandingly. Commonwealth v. Althenhaus, 317Mass. 270, 57N.E.2d 921,(1944); Rose v. State Board of Registration for theHealing 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 (5thCir. 1962). "Knowingly' is sometimes used as synonymous and in conjunction with "wilfully". Garza v. State, 47S.W. 983 (Tex. Crim. 1898); Good v. Commonwealth, 155Va. 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, 56A.2d 323 (1948);United States v. Loveknit Mfg. Co., 90 F.Supp, 679 (N.D.,Tex.1950).

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"Available" has a general, common meaning -- capable of being made use of, or accessible. Nemo v. State, 178Misc. 34N.Y.S.2d 40 (1942): Brown v. State, 200 286, Miss. 881, 27So.2d 838 (1946); Garrison.Independent School District **V.** McDuffie, 414 S.W.2d error ref. n.r,.e.);Duncan v.
.. .._.I 492 (Tex.Civ.App. 1967, 1States, 368F.2d 98 (5thCir. 1966). Unitei "Knowingly" appears tobe 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, 136N.Y.S.2d 688 392, 240N.E.2d 595 (1968); Dalel, 280 F.Supp. 938 (N.D 

## test 294 F.2d 168 (5thCir. 315F'.2d407 (5thCir. 1963reason. United States v. Schneiderlif. 1951) ?eoplev. Crea", 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 anecessary element of the offense. Erby v. State, 181 Tenn. 647, 184 S.W.2d 14 (1944); People v.McHugh, 271App.Div. 135, 63N.Y.S.2d 319 (1946); State v. Kelley, 225 La. 495, 73 So.2d 437 (1954); Graves v. United States, 252 F.2d 878 (9thCir. 1958); Felton v. United States, 96 U.S. 699 (1878).

. From anyanalysis of the decisional authority above and in response to the first portion ofyour inquiry, **in** order tobe convicted of the offense ofmaking an alcoholic beverage available to aminor 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 theword "knowingly" in a criminal statute narrows the scope of the enactment by exempting innocent or inadvertent conduct from itsproscription. 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 inwhich 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 hewas at a gathering atwhich

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the defendant was present. He and the defendant went outside of the yard gate where the defendant picked up abottle of whisk adisY' took adrink, and placed itby a ost. ante and the minor picked up theboitle He stepped back and took adrink ofwhisky from it. The Court reversed the conviction stating there was no evidence the defendant gave theminor 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 aminor. 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 adrink from the bottle. The court had before it the testimony of the minor that "no one told me not to drink thewhisky, nor did they in any manner try to stop me; they did not have time; Iwas tooquick for them". The minor further testified that the defendant "did not give his permission forme to drink it". The Court reversed the conviction for insufficient evidence.

The second portion of your inquiry concerns use 'oftheword "knowingly" in connection with "knowledge" of the minority of the person towhom the alcoholic beverage ismade available. In order,to constitute the offense of knowingly making available an alcoholic beverage to aminor, 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, 38S.W.
amTex.Crim. 1897); People v. Shapiro, 4N.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 theminor 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 (2ndCir. 1936). TState, 8Md.App. The Court stated in Greenway 194, 259A.2d 89 (19691, in dealing with the subject of knowledge of a fact, that adefendant cannot deliberately shut his eyes so that hewould not have knowledge ofwhat otherwise be obvious tohis view. He may be placed on notice of the apparent minority of the person towhom the alcoholic beverage ismade available andbe required to call for

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inquiry. Rosen v. United States, 161 U.S. 30 (1896); Iberville Land Co. v.Amerada Petroleum Corporation, 141F.2d 384 (5th Cir. 1944)

. "Knowingly" has been stated tomean such information as would cause aperson of ordinary prudence tomake further inquiry. Feldman v. South Carolina Tax Commission, 303S.C. 49, 26S.E.2d 22 (1943);cf.,American Express Co. v. Commonwealth, 171Xy. 1, 186 S.W. 887 (1916). In State v.McCormick, 56 Wash. 469, 105 P. 1037 (1909),aWashington Code provided that every person who shall "knowingly" sell or give aminor intoxicating liquors without thewritten consent of his parent or guardian shall, on conviction, be fined, etc. The Court held that an instruction that the salewas made knowingly within such statute if defendant's bartender knew, or in the exercise of reasonable prudence, should have known that his customer was aminor at the date of the alleged sale, corectly defined the term "knowingly".

Factors that may be taken into consideration andproved by the State to show that adefendant should have known that he
was making an alcoholic beverage available to aminor are evidence of age, appearance of theminor, size of theminor, and years known by the defendant. Sears v. State, 34S.W. 124 (Tex. Crim. 1896). Also, the State may show theminor informed the defendant of.his age some timeprior thereto. State, 176 S.W. 331 (Tex.Crim. 1943). =-F- The State may 8 ow the minor furnished the defendant with identification showing him tobe 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 theminor did not appear tohim tobe twenty-one years of age, but the third person may not testify as to the effect of theminor's appearance on others. Ferguson v. State, 95 S.W. 111 (Tex.Crim. 1900).
SUMMARY,

In order tobe convicted of "knowingly," ~,makingan alcoholic beverage available to aminor under Article 666-17, Subdivision (14) (b),Vernon's Penal Code, adefendant must, with awareness and a culpable motive have intentionally and deliberately, placed

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said alcoholic beverage where it is accessible to theminor with the intent that theminor partake of the alcoholic beverage.
Further, theperson making available the alcoholic beverage must have known that the recipient was aminor or had such information fromhis appearance or otherwise
aswould lead aprudent person tobelieve that suchperson was aminor, 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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