Honorable Charles E. Hughes 

County Attorney 

Bowie County Courthouse 

Texarkana, Texas 

Dear Mr. Hughes: 

Opinion No. C-421 

Re: Whether a motor hotel and restaurant, under the stated facts, would 

be in violation of the Liquor Control 

Act, Art. 666, Penal Code of Texas, 

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 of its facilities a 

restaurant to accommodate the guests.~ The manager 

of such facilities seeks to give at his sole discretion 

a beer or a mixed drink before or during their meals 

eaten in the restaurant to some or all of his guests 

who stay with him. 

“Question: Is there any law in our state which 

would prohibit such a person to give a beer or a 

mixed drink of intoxicating 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 of such 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 of such 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 a true gift or actually a sale which falls within the prohibition of Article 

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 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.” 

In Savage v. State, 88 S.W. 351 (Tex.Crim.App. 1905), the Appellant 

was convicted of selling beer on Sunday, under Article 199 of the Revised 

Civil Statutes of Texas, 1895. Upon appeal the principal question for decision 

by the Court of Criminal Appeals was whether the Appellant made a sale 

of the beer. The proof showed that the Appellant was a restaurant keeper 

and that he also ran a saloon, 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 of beer which 

ordinarily sold for $0.15. All the witnesses testified that they paid only the 

price of the 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 a jury although it is not clear from the 

opinion exactly what instructions were submitted to the jury in the court’s 

charge. It is clear, however, that the jury found that Appellant was guilty 

of a sale of beer on Sunday. The court, on rehearing, stated as follows: 

I, 

. . . Ordinarily it would appear that a party 

might sell one article, and make a gift of another. 

The testimony of the 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 a mere gift. It occurred to us in the original 

opinion that this character of testimony settled the case 

in favor of the defendant, inasmuch as no effort was 

made on the part of the state to show that the lunch 

was of less value than was charged. In fact, the lunch 

was shown to be of equivalent value. It occurred to us 

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that, under similar circumstances, if the saloon keeper 

set up free lunch to the customer, should he come in 

and purchase a glass of beer, and, at his option, partake 

of the free lunch, this would not amount to a sale of the 

lunch, but merely a gift; and s.uch seems 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 a matter to be determined by the jury 

under proper instructions; and, on a more deliberate 

investigation of this 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 of the opinion, the court 

stated that whether the facts of the case proved that a sale had occurred was 

within the province of the jury. However, an analysis of the facts and of the 

opinion indicates that, in effect, the court held, as a matter of law, the furnishing of alcoholic beverages with meals constitutes a sale of the 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 of the evidence was to the effect that there was no consideration 

paid for the beverage. Therefore, if the question had been one of fact for 

the jury, the Savage conviction could not have stood because there was no 

evidence in the record to support a jury finding that there had been consideration for the sale of the beverage. Since the court sustained the conviction, 

it held as a matter of law that the furnishing of alcoholic beverages under 

the circumstances in the Savage case was a sale of the beverage. 

The Texas Court in the Savage case relied upon a Massachusetts case, 

Commonwealth vs. Minot Thayer, 40 Mass. (8 Mete.) 525 (1844). In that 

case, the court was faced with the following facts developed during the trial 

of the case. It appeared that the Defendant was the keeper of a public house 

in which there was a bar and a bar-keeper. The only witness, Albert 

Hersey, testified that he never bought any spiritous liquor .of the Defendant; 

that he bought a cake of him, for six cents, and at the same time a decanter 

of spiritous liquor was set upon the bar, from which he helped himself; 

that he never bought a similar cake for less than six cents, but that he did 

not know the value of the same. 

The court instructed the jury, 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 a sale, and the Defendant was guilty. The 

jury found the Defendant guilty and the Defendant appealed. 

The Massachusetts Court held: 

“The government alleged a sale to Albert Hersey 

of one glass of spiritous 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 of the two parties; there must be a 

vendor and a vendee. But no words need be proved to 

have been spoken. A sale may be inferred from the 

-- 

acts of the parties, and no disguise which the parties 

may attempt to throw over the transaction, with a 

view of evading the penalty of the law, can avail them, 

if in 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, 126 Mass. 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 the jury that, if meals were furnished, and, 

as part of such 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 of the statute. The Defendant was found 

guilty by the jury and he appealed. 

The court in this case held: 

“The purchase of a meal includes all the articles 

that go to make up the meal. It is wholly immaterial 

that no specific price is attached to those articles 

separately. If the meal included intoxicating liquors, 

the purchase of the meal would be a purchase of the 

liquors. It would be immaterial that other articles 

were included in the purchase, and all were charged 

in one collective price. If a dealer should undertake to 

present a glass of liquor to everybody who should purchase some small article of him, it would 6e considered 

a mere evasion of the law prohibiting the unlicensed 

sale of intoxicating liquors. . .‘I (Emphasis added) 

A District of Columbia Court in the case of Lauer vs. Dist. of Columbia, 11 App.Cas. 453, was faced with the construction of their 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 of the 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 of setting a bottle of beer 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 a violation of the law, i.e., that this was a “gift” and not a 

sale. 

The trial court charged the jury, “If you believe from the evidence 

that the Defendant, Lauer, made a business of furnishing beer or intoxicating 

liquors to his boarders at their meals, such action ori his part would be . 

engaging in the sale of intoxicating 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 of liquor makes a sale. . . . An occasional gift 

of liquors to his boarders would not be a violation of law.” 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 of by 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 of this defendant 

in furnishing beer to his 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 

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respect of licenses, as well as to evade the positive 

prohibition of the sale of liquors within a mile of the 

Soldiers’ Home.” (Emphasis added) 

Under the facts presented to us, and in view of the Savage case and 

other authorities cited herein, it is the opinion of this office that the 

furnishing of alcoholic beverages before or during meals in a dry area by 

a motor hotel and restaurant owner to some or all of the guests who stay 

in said motor hotel constitutes the unlawful sale of alcoholic beverages in 

violation of Article 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 

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in the dry county to the proprietor’s place of business. As shown by Article 

666, Section 4(b), V.P.C., supra, the transporting of alcoholic beverages in 

a dry area is a violation of the law. An exception and defense to this 

charge is provided in Article 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 a place where the sale thereof 

is legal to a place where the possession thereof is 

legal.” (Emphasis added) 

In Staley v. State, 229 S.W.2d 170 (Tex.Crim. 1950), the court had under 

consideration the term “own cousumption”. Following the citation of several 

cases, the court stated this language: 

II 

. . . In these cases we have given quite a 

liberal construction to the meaning of the phrase 

‘own consumption.’ It seems to have been extended 

to authorize the transporting of whiskey for other 

members of the family, but we have declined to construe the language to include a neighbor’s motherin-law, or as an accommodation to others. See 

Pratt v. State, 151 Tex.Cr.R. 326, 207 S.~W.2d 395. 

Further than this we believe we would not be justified in extending the rule.” 

Therefore, the transportation of alcoholic beverages for the purpose 

presented in your question would be a further violation of Texas law. 

-1985- 
Hon. Charles E. Hughes, page 7 (C-421) 

SUMMARY 

The operators of a motor hotel and restaurant 

would be in violation of Article 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 of the guests 

who stay in said motor hotel. Further, it is unlawful for any person in a dry 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-