Honorable Charles E. Hughes

County Attorney Bowie County Courthouse Texarkana, Texas

Dear Mr. Hughes: Opinion No. C-421 Re: Whether amotor hotel and restaurant, under the stated facts, would be in violation ofthe Liquor Control Act, Art. 666, Penal Code ofTexas, if it, at its discretion, gives away beer or mixed drinks of intoxicating liquor. In your request for an opinion from this office, you state the following facts:

“A motor hotel has as a part ofits facilities a

restaurant to accommodate the guests.~ The manager ofsuch facilities seeks to give at his sole discretion a beer or amixed drink before or during their meals eaten in the restaurant to some or all ofhis guests who stay with him.

“Question: Is there any law in our state which would prohibit such aperson to give a beer or a mixed drink ofintoxicating liquors to such people to be drunk in a public place when such premises are located in a dry area. The guest who is the recipient ofsuch a gift is charged the same amount for his meal, lodging or any other charges that may be made, as the guest who is not a recipient ofsuch a gift. Such gifts would not be made or any consumption permitted on the premises during any prohibited hours provided in Article 666-4(c), Penal Code of Texas .lt The precise question presented is whether a “gift” as described above is atrue gift or actually asale which falls within the prohibition ofArticle 666, Section 4(b), Vernon’s Penal Code; which provide,s:

“It shall be unlawful for any person in any dry area to manufacture, distill, brew, sell, possess for -1980-Hon. Charles E. Hughes, page 2 (C-421)

the purpose ofsale, import into this State, export from the State, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose ofsale to bottle, rectify, blend, treat, fortify, mix, or process any liquor, distilled spirits, whiskey, gin, brandy, wine, rum, beer or ale.” InSavage v. State, 88S.W. 351(Tex.Crim.App. 1905), the Appellant was convicted ofselling beer onSunday, under Article 199ofthe Revised Civil Statutes of Texas, 1895. Upon appeal the principal question for decision **by** the Court ofCriminal Appeals was whether the Appellant made asale ofthe beer. The proof showed that the Appellant was a restaurant keeper and that he also ran asaloon, both being situated in the same building and run in the same hall or room. The evidence showed that the Appellant, when he sold lunches to customers furnished beer therewith. The testimony further showed that the lunches were worth. their $0.15 selling price, and that with each lunch the Appellant served a pint bottle ofbeer which ordinarily sold for $0.15. All the witnesses testified that they paid only the price ofthe lunch and received the.beer free. All the evidence was to the .effect that the beer was a gift when served with lunch. It should be pointed out at this time that the **above** mentioned facts were undisputed. The case was submitted to ajury although it is not clear from the opinion exactly what instructions were submitted **to** thejury in the **court ’** **s** charge. It is clear, however, that the **jury** found that Appellant was guilty ofa sale ofbeer onSunday. The court, on rehearing, stated as follows:

I,

. . . Ordinarily itwould appear that a party might sell one article, and make a gift ofanother. The testimony ofthe witnesses both for the state and defendant was to this effect; that is, that the beer was not sold; the lunch was the article bought, and the **beer** was amere gift. It occurred to us in the original opinion that this character oftestimony settled the case in favor ofthe defendant, inasmuch as no effort was made on the part ofthe state to show that the lunch was ofless value than was charged. In fact, the lunch was shown to be of equivalent value. It occurred to us - that, under similar circumstances, if the saloon keeper set upfree lunch to the customer, should he come in and purchase a glass ofbeer, and, at his option, partake ofthe free lunch, this would not amount to a sale ofthe lunch, butmerely a gift; and s.uchseems to be the common understanding. However, as stated, the authorities -1981-. .

Hon. Charles E. Hughes, page 3(C-421)

cited establish the contrary doctrine, and leave the sale or gift amatter to be determined by the **jury** under proper instructions; and, on amore deliberate investigation ofthis question, in connection with the authorities furnished by the Assistant Attorney General, we believe that this is the correct doctrine.” (Emphasis added) As seen from the above quoted portion ofthe opinion, the court stated that whether the facts ofthe case proved that a sale had occurred was within the province ofthejury. However, an analysis ofthe facts and ofthe opinion indicates that, in effect, the court held, as amatter oflaw, the furnishing ofalcoholic beverages with meals constitutes asale ofthe beverage. This is true because there was no evidence in the record in’the Savage case that there was any consideration paid for the alcoholic beverage. In fact, all ofthe evidence was to the effect that there was no consideration paid for the beverage. Therefore, if the question had been one offact for thejury, the Savage conviction could not have stood because there was no evidence in the record to support ajury finding that there had been consideration for the sale ofthe beverage. Since the **court** sustained the conviction, it held as amatter oflaw that the furnishing ofalcoholic beverages under the circumstances in the Savage **case was**  **a**sale ofthe **beverage.** The Texas Court in the Savage case relied upon aMassachusetts case, Commonwealth vs. Minot Thayer, 40 Mass. (8Mete.) 525 (1844). In that **case,** the **court** was faced with the following facts developed during the trial ofthe case. It appeared that the Defendant was the keeper ofapublic house inwhich there was a **bar** and a bar-keeper. The only witness, Albert Hersey, testified that he never bought any spiritous liquor .ofthe Defendant; that he bought a cake ofhim, for six cents, and at the same time adecanter ofspiritous liquor was set upon the bar, from which he helped himself; that he never bought asimilar **cake** for less than six cents, but that he did not know the value ofthe same. The court instructed thejury, that if they believed that any part of the six cents was given by the witness, and received **by** the Defendant, to pay for the liquor, it constituted asale, and the Defendant was guilty. The **jury** found the Defendant guilty and the Defendant appealed. The Massachusetts Court held:

“The government alleged asale toAlbert **Hersey** of one glass ofspiritous liquor, and was bound to establish the fact. To constitute such sale, there must -1982-. .

Hon. Charles E. Hughes, page 4 (C-421)

be the assent ofthe two parties; there must be a vendor and avendee. But nowords need **be** proved to have been spoken. A sale may be inferred from the -- acts ofthe parties, and no disguise which the parties may attempt to throw over the transaction, with a view ofevading the penalty ofthe law, can avail them, ifin truth such sale is found to have taken place.
..” (Emphasis added) The Massachusetts Court again found itself~ confronted with a question similar to the question involved here in Commonwealth vs. Albert W. Worcester, 126Mass. 256 (1879). Evidence in the trial court in this case came from witnesses who testified that they went to the Defendant’s dwelling-house on two or three different occasions and,had dinners or suppers; that with these meals, and as part thereof, they had wine, lager beer and other liquors; and that when they got through they paid the Defendant for the meal, each paying what he pleased, and they thought they paid two dollars each. The trial judge instructed thejury that, ifmeals were furnished, and, as part ofsuch meals, intoxicating liquors were furnished, and the payment for the meals included payment for the liquors, that would constitute an illegal sale within the provisions ofthe **statute.** The Defendant was found guilty bythejury and he appealed. The court in this case held:

“The purchase ofameal includes all the articles that go to make upthe meal. It is wholly immaterial that nospecific price is attached to those articles separately. If the meal included intoxicating liquors, the purchase ofthe meal would be apurchase ofthe liquors. Itwould be immaterial that other articles were included in the purchase, and all were charged in one collective price. Ifa dealer should undertake to present aglass of liquor to everybody who should purchase some small article ofhim, it would 6e considered amere evasion ofthe law prohibiting the unlicensed sale ofintoxicating liquors.
. .‘I (Emphasis added) A District of Columbia **Court** in the **case** of **Lauer** vs. Dist. of Columbia, 11App.Cas. 453, was faced with the construction oftheir statute, 22 Stat. 567. That section, so far as relevant to our question, read thusly:
-1983-. -

Hon. Charles E. Hughes, page 5(C-421)

II ‘That anyone engaging in the sale of intoxicating liquors as specified in this act in the District of Columbia, who is required by it to have a license as herein specified, without first having obtained a license to do so as herein provided, or any person who shall engage in such sale in any portion ofthe District where the sale thereof is prohibited, upon conviction thereof s’hall be.‘
. . ..‘I In the trial court evidence was given by several witnesses tending to show that the Defendant kept a grocery store and boarding house; that at meal times he was in the habit ofsetting a bottle ofbeer beside each plate. It was also shown that he sold lunches to customers and included beer therewith. Parties paid for their lunches, but not for the beer; that is to say, no separate or independent charge was made for the beer. Whatever expectations the Defendant’s boarders and customers may have had, there was no evidence to show that beer was specially called for or contracted to be furnished. Defendant made no effort to deny or explain these practices, and based his defense upon the legal ground that they did not constitute aviolation ofthe law, i.e., that this was a “gift” and not a sale. The trial court charged thejury, “If you believe from the evidence that the Defendant, Lauer, made abusiness offurnishing beer or intoxicating liquors to his boarders at their meals, such action orihis part would be . engaging in the sale ofintoxicating liquors, under the law, and you should convict, whether the liquor was paid for by them or not. Under the law of this District such disposition ofliquor makes a sale.
. . .An occasional gift ofliquors to his boarders would not be aviolation oflaw.” The jury found the Defendant guilty and the Defendant appealed. The Court held:

,I

. . . It is plain that the word sale, as used in section 12,was intended to be given meaning, generally, as any act whereby liquors shall be disposed ofby one person to another under circumstances, not within the special exceptions of the act, and not plainly showing a mere friendly gift or ‘treat’
. The acts ofthis defendant in furnishing beer tohis boarders and to customers, with their meals and lunches, can not be regarded as such a gift. It was nothing but a device whereby he
-1984-Hon. Charles E. Hughes, page 6(C-421)
sought to escape compliance with the regulations in - respect of licenses, as well as to evade the positive prohibition ofthe sale ofliquors within amile ofthe Soldiers’ Home.” (Emphasis added) Under the facts presented to us, and in view ofthe Savage case and other authorities cited herein, it is the opinion of this office that the furnishing ofalcoholic beverages before or during meals in adry area by amotor hotel and restaurant owner to some or all ofthe guests who stay in said motor hotel constitutes the unlawful sale of alcoholic beverages in violation ofArticle 666, Section 4(b). Further, under your stated fact situation, it appears obvious that the alcoholic beverages in question would, at some point, have to be traxorted - - in the dry county to the proprietor’s place ofbusiness. As shown byArticle 666, Section 4(b), V.P.C., supra, the transporting ofalcoholic beverages in adry area is aviolation ofthe law. An exception and defense to this charge is provided inArticle 666, Section 23(a), which provides:

“(1). It is provided that any person who purchases alcoholic beverages for his own consumption may transport same from aplace where the sale thereof is legal to a place where the possession thereof is legal.” (Emphasis added) InStaley v. State, 229S.W.2d 170(Tex.Crim. 1950), the court had under consideration the term “own cousumption”
. Following the citation ofseveral cases, the court stated this language: II

.. .In these cases we have given quite a liberal construction to the meaning ofthe phrase

‘own consumption.’ It seems to have been extended to authorize the transporting ofwhiskey for other members ofthe family, butwe have declined to construe the language to include aneighbor’s motherin-law, or as an accommodation to others. See Pratt v. State, 151Tex.Cr.R. 326, 207S.~W.2d 395. Further than this we believe we would not bejustified in extending the rule.” Therefore, the transportation ofalcoholic beverages for the purpose presented in your question would be afurther violation of Texas law.
-1985-Hon. Charles E. Hughes, page 7 (C-421)

SUMMARY The operators of amotor hotel and restaurant would be in violation ofArticle 666, Section 4 (b), V.P~.C., by furnishing beer or mixed drinks to their patrons before or during meals eaten in the restaurant or to some or all ofthe guests who stay in said motor hotel. Further, it is unlawful for any person in adry area to transport alcoholic beverages unless the person purchasing said beverages transports same from a place where the sale thereof is legal to a place where the possession thereof is legal, for his own consumption. Yours very truly, WAGGONER CARR Attornev General of Texas

BY.Assistant REO:sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Sam Kelley Robert Norris W. 0. Shultz Milton Richardson APPROVEDFOR THEATTORNEYGENERAL BY: Stanton Stone

-1986-