             c   ..-




             THE       /iTJ?ORNEY          GENERAL

                             OF   THXAS




Honorable George T. Thomaa
County Attorney
Howard County
Big Spring, Texas

Dear Sir:                           opinion no. o-3944
                                    Re: If a person comes into Howard
                                         County from a dry county and
                                         pUrChaSeB a large quantity of
                                         liquor, in his own name and
                                         for himself, and starts back
                                         to the dry county with it, but
                                         is arrested before leaving How-
                                         ard County, but admits that he
                                         intends to take such whiskey
                                         back to the dry county where
                                         he lives and sell it, is he
                                         violating the terms of Article
                                         666-4(a) Vernon's Annotated
                                         Penal Code?

          Your letter of February 18, 1943, requesting the opinion of
this department on the question8 stated therein reads in part 88 follows:



         "Howard County is wet. If a person comes into Howard
    County from a dry County and purchases a large quantity of
    liquor, in his own name and for himself, and starts back to
    the dry county with it, but is arrested before leaving How-
    ard County, but admits that he intends to take such whiskey
    back to the dry county where‘he lives and sell it, is he
    violating the terms of Art. 666-4(a), reading as follows:

         "'(a) It shall be unlawful for any person to manu-
    facture, distill, brew, sell, poasesa for the purpose of
    sale,,import into this State, export from this State,
    transport, distribute, warehouse, store, solicit, or take
    orders for, or for the purpose of aale to bottle, rectify,
    blend, treat, fortify, mix or process any liquor in any
    wet area without first having procured a permit', and if
    he is violating the terms of such provision, uould he be
    guil",yof transporting liquor in a wet area without a
Honorable George T. Thomas, page 2 (O-3944)



     permit, or would he be guilty of pome~rion of liquor for
     the purporer of 6ale without a permit, or both.

          "I a6k these quertionl becaure if the term 'tran6port1
     a6 u6ed in the above article in given the 66~ construction
     a6 the 6em6 term when u6ed in Article 666-27a, which wa6,
     according to your opinion No. O-1882 to Eon, Bert Ford
     'ehipment of liquor, a6 that term i6 ordinarily u6ed and
     uU%?rEtood, as where a person order6 liquor and it is de-
     livered to him either by common carrier or agent for the
     consignee or consignor', then such person would not be
     guilty under the transport provision of such article wheth-
     er he intended it for hi6 own consumption or for Bale, just
     so it belonged to him.

          "And on the question of 'pOEseS6 for purpose of sale',
     what would be the effect of such pereon having such posses-
     sion without a permit, for the pUrpO6e of sale, but had
     such pOSSeEBim  only in Howard County, but intended to sell
     only in some other county, and the only real purpose of
     having and possessing the liquor in Howard County was for
     transport to such dry county, where it wa6 intended to be
     sold?

          "Further, under the same fact situation, would such
     person be guilty of a violation of Article 666~27a if he
     did not have in his possession the written statement re-
     quired by such act? In your opinion to Hon. Bert Ford,
     Opinion No. o-1882 it would appear that you construed
     such article to require such statement only when there
     was a 'shipment of liquor, as that term is ordinarily
     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 irregardless of
     whe~therBuch liquor was intended for per6Ond coneump-
     tion by the person transporting the same, or by sale by
     such person.
          " . . 0 .R

           By virtue of subsection a, of Article 666-4, Vernon'6 Annotated
Penal Code, it is unlawful for any person to transport liquor without
having procured a permit. Except where a person has purchased liquor
in a wet area, and if, at the time of his arrest, he was transporting
same to his home for his own consumption, he would not be guilty of un-
lawfully transporting the liquor, because of the provisions of Article
666-23(a), Vernon's Annotated Penal Code, which read6 a6 fOllow6:
Honorable George T. Tho6la6,page 3 (O-3944)



          "(1) It 16 provided that any per6on who purchase6 al-
     coholic beverage6 for hi6 own coneumption may tranlport lam6
     from a place where the sale thereof 16 legalto a place where
     the porre66lon thereof 16 legal."

          Article 666-15, Vernon*6 Annotated Penal Code, provide6 for
the different type6 of permits, including thole allowing transportation
a6 follows:

          "Carrier Permit, Private Carrier Permit, and Local Carb-
     age Permit."

          There are many Texas cases regarding the illegal transporta-
tion of intoxicating liquors. However, we have been unable to find any
case passing directly upon the question6 submitted in your inquiry.

          Under the fact6 stated in your letter, a6 quoted above, it
is our opinion that the person mentioned therein has violated the terme
of Article 666-4(a) of transporting liquor in a wet area without a per-
mit provided he was not transporting the Eame to his home for hia own
COnEumptiOn. It is our further opinion, under the facts stated, that
such person would be guilty of pO6BeSSiOn of liquor for the purpose of
sale without a permit.

           With reference to your eecond question regarding the posses-
sion of .liquorfor the purpose of sale, it is stated in effect, that
the person who was arrested in Howard County had such liquor in his pos-
session sandstated that he had it for the purpose of sale but he intended
to sell it in some other county and the only real purpose of having pos-
session of the liquor in Howard County wa6 to transport such liquor to
the dry 'countywhere it was intended to be sold. It is our opinion that
it is immaterial where the liquor was intended to be sold so long as it
WCLB his :purpoBeand .intentionto posse66 such liquor for the purpose
of sale. We think that our answer to your first question necessarily
answers this question.

          With reference to your third question, under the 6ame fact
situation, you ask "would such a person be guilty of a violation of
Article 666-27(a) if he did not have in his possession the written state-
ment required by such Act?" We think that our opinion No. O-1882 ex-
pressly Gan6wersthis question and we quote from the same as follows:

          "We think this section has reference to shipment of
     liquor, as that term is ordinarily used and understood, as
     whe:rea person orders liquor and it is delivered to him
     eliher by common carrier or agent for the consignee or
Honorable George T. Thomae, page 4 (O-3944)



     consiepor. It 16 our OpiniOn that the Eame 16 not appli-
     cable to the altuation presented by your statement of factr."

                                              Your6 very truly

APPROVED MAR 17, 1943                    A!Pl'ORNEXGENERALOFTWAS

Id   Grover Sellers
                                         By   /a/ Ardell Williams
FIRST ASS:ISl!ANT                                 Ardell Williams
A!l'l'ORXNY
         GENEPAL                                        ABSietant

AU:mp:lm


                                     APPROVED
                                     OPINION
                                    COMMITTEE
                                    BY /s/ BUB
                                      CHAIRMAN
