Honorable   0. N. Humphreys                   Opinion      M-227
Acting Administrator
Texas Liquor Control  Board
Sam Houston State Office    Building
Austin,   Texas 78711                         Re:      Twenty-two      questions
                                                       relating     to the legal-
                                                       ity or Illegality          of
                                                       sale,    service,     ,and
                                                       possession      of alcoholic
                                                       beverages      by commer-
                                                       cial   airlines      or em-
                                                       ployees     thereof,     within
                                                       the State of Texas and
                                                       the air space over
                                                       territory     within state
Dear Mr. Humphreys:                                    boundaries.

         Your office    has recently     submitted,     to be answered by an
official     opinion,    a series     of twenty-two     questIoni    relating
to the legality        or lllega~lty.    of sale,    service,     and possession
of alcoholic       beverages    by commercial     airlines    or employees
thereof,     within    the State of Texas and the air space over
territory     within state boundaiies.

  >   The initial     question    which    yolk have    presented     Is   stated
as follows:

             “Question    1 0 Is It unlawful      for an employee
      of .a commercial     airline   to sell   liquor  or beer,
      which liquor      or beer was not manufactured      by the
      process   of distillation      and does not contain      dls-
      tilled   spirits,     to a passenger   inside   an airplane
      which airplane      is owned by such commercial       airline
      and 1s in the air above the State of Texas and is
      In route    from a point In Texas to another        point In
      Texas?”




                                   -low-
                                                                                .      ,




Honorable     0.   N. Humphreys,     page 2                   M- 227



      It Is well settled      that an employee assisting      lnan   il-
legal act Is equally     guilty     with his principal    and both may
be Indicted    and punished,      Consequently,   for the purposes     of
our answer to your first        and subsequent   questions   we will con-
sider the employee’s     liability,     If any> to be co-extensive       with
the liability,    If any, of the airlines.

       In answering     your first    and subsequent   questions,    we will
consider   further     that liquor    or beer not manufactured     by a
process   of distillation      and not containing     distilled   spirits
Includes   any intoxicating       alcoholic  beverage    manufactured     by
(or containing      alcohol   manufactured    by) fermentation    or other
means without      regard to whether such beverage         is commonly de-
signated   liquor,     beer, malt liquor,    wine or by some other
nomenclature.

        Under the Twenty-First          Amendment to the Constltutlon             of
the United States,          the states      have broad regulatory        powers over
liquor    traffic.       The Twenty-First        Amendment has in fact largely
relieved     the states       of the limitations        set by the Commerce and
Supremacy clauses          of the Constitution         of the United States,         In-
sofar as regulations           pertaining      to traffic     in Intoxicating
liquors    Is concerned e On the other hand, the Twenty-First                       Amend-
ment does not Increase            the territorial       jurisdiction     of the states
and does not empower the states                to prohibit,      Impose conditions
on, or regulate,         the liquor     traffic     In territory     which Is under
the exclusive        lurlsdlctlon      of the Federal       novernment.       Collins
v. Yosemite        PaEk Co., 304 U.S. 518, 82 L.Ez. 1502, 58 S-09
(1941)     Hostetter       v. Idlewlld      Liquor Corp         377 U.S. 324, 12 L-Ed.
2d 350; 84 S Ct 1293 (19b4).                Dept e of Alcihollc      Beverage Control
v. Ammdx Wardhoise,           378 U.S.‘124       12 L Ed 2d 743        84 S Ct lb57
  lgb3)    Johnson v, Yellow Cab T&sit                60.:    321 U’.S. 381, 68 L.Ed.
  14, 64 3 Ct 622 (1944 . Epstein                v. Lordi,     261 F.Supp, 921 (D.C.
N,J.,    1966), ‘affirmed,         6 3 Ct lOb’(1967r             15 C.J.S,    739, Com-
merce, Set, 99; 48 C.J.S.             1~4,‘Intoxicatin~        Liquors,    Sec. 33.

       The sovereign       states    possess   jurisdiction       of the air space
above their      territories      and may exercise       police    powers therein
except where the same have been granted to or assumed or pre-
empted by the federal           government D 2 C,J.S.        903, Aerial       Naviga-
tion,    Sec. 3, and authorities          there cited.       Likewise,      state
statutes     regulating      the operation     of aircraft      have been held con-
stitutional      as within      the police    power of the state,         and as not
violating     the commerce clause         of the federal       constitution,        2 C,J S.




                                     - 1091-
    .    .




        Honorable       0. N. Humphreys,    page 3                    M-227
                                                                                  :


        905,   Aerial    Navigation,    Se@,   8,   and authorities      there        cited.

               Congress claims only concurrent     jurisdiction      with the
:       states   to regulate  the legality   or Illegality       of acts per-
        formed while in flight     over a state’s    territory.      The com-
        mittee report    which accompanied   the most recent       amendment of
        the penal provisions    of the Federal    Aviation      Act of 1958
        (49 U.S,$.    1472) makes this very clear,       Said report     reads In’
        part:

                     “‘The Committee of Interstate      and Foreign
               Commerce, to whom was referred       the bill  (H,R.
               8384) to amend the Federal      Aviation   Act of
               1958 to provide    for the application     of Fgderal  :’
               criminal   law to certain   events occurring     on
               board aircraft   in air commerce, having considered
               the same, report .favorably     thereon with amend-
               ments and recommend that the bill        as amended do
               pass D


                      ,I      Q /r7n      the case of crimes committed in
               the airsnace-oiler         States   of the United States.
               most of ihe acts with which this legislation
               -Ions                                of the laws .of one or .,                  .,,   ,,
               more of such St*,               However,    crimes committed
               iace
                 n.                    over a State nose Deculiar          and
               extremely     tEoublesome       problem;    of enforcement
               which are not present           when such crimes take
               place on the ground.            When a criminal      moves the
               scene of his ectlvlty           to an aircraft      In flight
               he is able to take advantage             of practical     and
               physical     difficulties       that may seriously       im-
               pair effective        apprehension     and prosecution,
               particularly       If the offense      Is one against       the
               law of a State rather           than against     Federal    law,
               Furthermore,       in the case of offenses         against
               State law, State ofi%cials            are often faced with
               an inauperable         task In trying      to establish     that
               a particular       act occurred      In the airspace       over
               that State -- and in some cases,               under State law,
               It would be necessary           to prove that the offense
               waa committed over a particular              county In the




                                           - 1092 -
Honorable      0. N. Humphreys,   page 4               M- 227


     State e It Is obvious       that such proof may be
     very difficult   and often impossible        If the
     offense   la comml-,,Lsr:on
                          Jo-     a’ jet aircraft    traveling
     at 600 miles per hour at an altitude           of 30,000
     feet.

            “The offenses   pu~nlshable under this legls-
      lation  would not replace    any State jurisdiction
     bt       Id    h     b th F d     1   dStt     1
     pyov%d      ;oF ~~~ls~mentef~?th~nsameaa~t     ,aYde In
     addition    to the State criminal    1a.w:



           “As is well known, the Federal       Government
     does not ,provlde   a general crltilnal    code for all
     crimes commltt d I th                   a es.     hat 1s
     the province   oef th: va%oEs gtates.         However,
     criminal  codes of the States are at times SUD-
     plemented by Federal    law In fields     where the‘
     Federal  Government has responsibilities.

              “We wish to emphiisize that it is not our ln-
      tent to divest     the States     of any jurisdiction   they
     :+ow ,bave.    Thia leglslatlon      merely seeks to give
      the.:,Federal   Government. concurrent     jurisdiction  with
      the States     In certain   areas    . . n
               II
                    .   .   .


            “The\‘present  law ‘relating   to crimes aboard
     aircrayt    In flight  follows    the normal rule, which
     1s~ that the offense     is dealt with under the law
     of the State where the offense        occurs.

             “One difficulty     here ‘Is that the State above
     which the- crime may have been committed is often
     not the State in which. the aircraft          lands o The
     second State has 3jo jurisdiction,          and cannot even
     arrest    the criminal a If the State over whose
     territory     the crime occurred      Is disposed    to act,
     it first    ‘must collect     the evidence   necessary    to
     establish     that a crime has been committed within
     Its jurisdiction.         This evidence,    however,   Is
     hard to gather when the witnesses           on board the air-




                                  - 1093 -
    Honorable     0. N. Humphreys,      page   5                  M- 227


            craft    disperse   after   landing.    Assuming that an
            Indictment      Is returned    in the flrst’state,      there
           ,ls still     the question    of extradition      and not all
            crimes are extraditable         D

                   “In contrast,    If the crime also Involved
           violation      of a Federal  law, the offender    could
           be taken Into custody       by Federal  law-enforcement
           agents when the aircraft       lands and criminal     prose-
           cution     Instituted.

                  “This, we want to make clear,    does not
           any State jurisdiction     but would only suppT-T@
                                                            emen
             t*-” 2 U S Code and Administrative      News (87th Cong.,
           lsi Sees&      1961) 2563.    (Emphasis added. )

           In view of this clear       declaration       of legislative      policy
    that state and federal        penal laws are to operate           concurrently
    in the airspace       over the states,     it would take an equally
    clear    exception    from this general      policy    to allow commercial
    airlines     to perform with Immunity while In-flight               over a state,
    such acts with regard to Intoxicating              liquors    as would otherwise
    be defined      as criminal   under state     law.     Otherwise,      the general
    policy    would control,     and It could not be held that estate penal
    laws apply only piecemeal,         to define     ascrimes     some acts or
    omissions     occurring    fn the airways,      but that penal laws relating
    to liquor     are in some mysterious       special     category,

           That portion   of the Federal  Aviation    Act of 1958 which
    sets up the office     of Federal  Avfatfon    Administrator    provides,
    Inter alla,   that he shall    promote air safety     “by prescribing
    0 e D minimum standards      0 D ~ to provide    adequate1    for national
    security   and safety   in air commerce.”     ,49 U.S.C,   1921(a)(6),

           Pursuant to such authority          the    following    regulation   has
    been   issued  by the Administrator:

7                 “Section   121.575    - Alcoholic      Beverages

                   “(a)    No person may drink any alcoholic
           beverage     aboard an aircraft     unless  the cer-
           tificate     holder  operating   the aircraft   has
           served that beverage        to him,




                                        - 1094 =
Honoi+ble     0.   N. Humphreys,      page 6                   M-227


             “(b)    No certificate        holder may serve
       any alcoholic    beverage       to any person aboard
       any of Its aircraft       if    that person appears
       to be Intoxicated.
       ,.   “(c)   No certificate holder  may allow
       any person to board any of Its aircraft    if
       that person appears to be Intoxicated.

             “(d)   Each certificate     holder    shall,
       within five days after       the Incident,     report
       to the administrator      the refusal    of any
    ,I person to comply with paragraph         (a) of this
    ’ section,    or any disturbance     caused by a per-
       aon who appears to be Intoxicated          aboard any
       of Its aircraft.’

        It Is argued on behalf         of interested       airlines      that the
above quoted provision         reflects      an authorization         from the
Federal Aviation       Administrator        to fe,derally     certificated
airlines     that would supersede         state   liquor     laws.      Such an
interpretation      cannot be supported          under recognized         canons
of construction       which are applied         to statutory       and admlnls-
tratlve    provlslona.       In this regard,        we note that the pro-
vieion    doea not on lta face purport            to depart from the
general    pdllcy   which would allow state and federal                  penal
laws to operate       concurrently       in the air     space above the
states.      It should therefore        be harmonized with general             policy
by reading      the authorization        to regulate      sale and service         of
liquor    which flrat     meets the conditions          Imposed by state penal
laws.     Aaaumlng arguendo that the administrative                   regulation
should be read as a departure             from general       policy,     and as pro-
viding    Immunity to the alrllnea           from state penal laws, the pro-
vision    would not stand as an exception             to the general         policies
provided     for by the United States           Congress,     but must fall,        since
an administrative        agency cannot enact policy             Inconsistent       with
policy    provided    by the Congress,

       The Federal    Congress In directing          the Federal Aviation
Admlniatrator     to Issue safety      regulations,        - the Federal
Aviation    Administrator     In issuing      such regulations,       - and
the Texas Legislature       in enacting       Subdivision      5, Article
46c-6,   Vernon’s    Civil  Statutes      (the provision       of the Texas
Aeronautics    Act    adopting    federal     safety    regulations),      - were
eabh directly     concerned    with defining       and enumerating        acts
Honorable        0. N. Humphreys,      page 7                  M-227



or omissions    in flight     which should be considered        unsafe,
At  other times both State and Federal           Governments have bben
directly   concerned    with defining     and enumerating      acts or
omissions   which should be considered         illegal     or prohibited.
We are not here concerned         with the issue of whether certain
acts are compatible      with the minimum standards          of safety    set
by the Federal     Government,     but rather we are concerned         with
the issue of whether the acts In question              are legal under
state penal law which applies         concurrently      with federal     penal
law In the airspace       over the State of Texas.

        In 48 C.J.S.    236,    Intoxicating      Liquors,   Set, l?l,     the
rule   of construction       generally     applied    to state   legislation
reglilatlng   alcoholic      beverages     is stated as follows:

              “Where the sale of Intoxicating        liquors   Is
       not prohibited,     but is made subject     to license,
       aa a general    rule all persons who engage In the
       business   of selling    Intoxicating  liquors,      or who
       m&ke such selling     a part of their    business,     or
       who follow    a business   which customarily      Includes
       such selling,    must procure a license       D . .‘I

       Article     666-4,   Vernonfs     Penal    Code,   provides     In part:

                “It shall  not be unlawful      to o Q - sell,
         Import 9 export,   transport,    distribute,     ware-
         house,    store, possess,   fir 7 possess     for the
         purpose of sale     0 0 0 ally Ilquor    in this State,
         0 a 0 provided    that the right     or privileges
         so to do are granted by any provision           of this
       .Act   o o o Any act fif     the nature described       7
        ,done by any person-which       is not granted in-
         this Act is hereby declared       to be unlawful.”

      A similar   prohibition      against  the unlicensed    sale,   etc,
of “beer” appears In Article         667-3,  Vernon’s    Penal Code.
Moreover,   the legislature      would hardly have bothered       to pro-
vide for licenses     under which various      intoxicating     beverages
could lawfully    be sold,    etc,   If it was Intended     that such
beverages   could lawfully     be sold without     a license.

       A reading  of the entire  Texas Liquor Control      Act clearly
indicates    that Texas follows  the general  rule   stated   above
and beverages    of Intoxicating  alcoholic  content    were only to
be commercially    dealt with In this State fn such a manner as




                                       - 1096 -
Honorable     0.   N. Humphreys,     page 8                   M- 227


has been specifically     authorized     by the Texas legislature               --
I.e., by licensees    acting   under the control     and supervision
of the Texas Liquor Control       Board.

        Several    provisions      of the Texas, Liquor Control        Act
which directly         relate   Its coverage    to aircraft      make it clear
that the act was to extend to aircraft.                See, for example,
Article     666-15(12)       (which,  we recently   discussed      In Attorney
General’s      Opinion M-26 (1967)),        which authorizes       the Texas
Liquor Control        Board to Issue a carriers         permit to federally
certificated       airplane     lines  to transport     liquor   a See also
Article     666-17(15)      which Is quoted and discussed          infra   in
connection      with our answer to your fifteenth,             sixteenth    and
seventeenth      questions.

       Although the legislature      has provided   for permits author-
izing carriage     or transportation    of liquor   by commercial   air-
plane lines,     no permit or license    has been authorized,     which
would allow the sale or service        of alcoholic    beverages  aboard
airlines    while In-flight    over the State.

      Pursuant to the above discussion             and authorities       cited,
your first      question    Is therefore    answered Wthe        affirmative
-- I.e.,    It Is presently        unlawful   for an employee of a com-
mercial    airline     to sell   liquor   or beer In the air above the
State of Texas since such traffic             In Intoxicating      liquors      Is
permitted     within    this state only as has been specifically
authorized      by the legislature;       sales   In the airspace      above
the state are subject          to state   laws ; and there Is presently
provided    no license      or permit by which sales        of lntoxlcat-
lng beverages      aboard aircraft       may be legally     conducted      In
Texas D

      Your   second    and third     questions     are   stated   as follows:

             “Question  2 0 Is It unlawful      for an em-
      ployee of a commercial       airline  to sell  liquor
      or beer, whjch liquor       or beer was not manufactured
      by the process    of dlstlllatlon     and does not con-
      tain distilled     spirits,    to a passenger  Inside an
      airplane,    which airplane     is owned by such com-
      mercial   airline   and Is In the air above the State
      of Texas     at the time of the sale and Is In route
      from a point In Texas to a point outside          of Texas?




                                     -1097-
Honorable    0.   N. Humphreys,      page 9                   M-227



             “Question    3.   Is it unlawful      for an em-
      ployee of a commercial         alrline  to sell    liquor
      or beer, which liquor         or beer w;?‘iisiiot manufactured
      brtherocess        of distillation      and does not con-
      tain distilled     solrits.     to a oasseneer     inside  an
      airplane,     which airplane     his owned~ by such com-
      mercial    airline   and Is in the airabove          the State
      of Texas at the time of- fie sale and is in route
      from a point outside        of Texas to a point in Texas?”
       (Emphasis added. )

       Questions    2 and 3 are answered in the affirmative
pursuant to the discussion      and authority     cited   in answer
to the first     question.   The reach of Texas Penal Laws is
co-extensive     with state borders,   and, the appllca billty     of
such laws would therefore      not be affected      by the point   of
origin   or point of destination     of an airflight.

       In connection  with your fourth  question you have cited
numerous provisions    of the Texas Liquor Control  Act.  Your
question   Is then stated as follows:

            “Question  4.   If your answer to either
      Question  1, Questlon   2, or Question   3 is ‘yea’
      which’ of the foregoing   provlalons   of the Texas
.     Liquor Control   Act have been violated?”

       There are numerous provisions             In the Texas,Liquor          Control
Act pertaining     to‘ Illegal     sales,    illegal      possession      for the
purpose of sale,      illegal    transportation,          etc.,    and offenses
are further    categorized      as to whether they occur in a wet area
or dry area and as to how the precise                alcoholic      beverage     in-
volved Is manufactured         or chemically       composed,       the .sise of
the paokage in which it Is contained,                eta,       The precise    pro-
visions   of the Act which might be violated                 by any given sale
would’have   to be determined         largely     upon the particular          facts
and circumstances       of the individual         case.

       Y&r    fifth   question    Is stated     as follows:

              “Question 5.    If your answer to either
       Question   1, Question   2, or Question   3 is ‘yes’
       would the State have to prove that the offense
       oocurred   in a certain   county for the purpose
       of establishing    venue for prosecution?”




                                     - 1098 -
Honorable       0.   N. Humphreys,        page   10                 M- 227



      Article        13.17,   Vernon ‘8 Code of         Crimlna 1 Procedure
provides:

             “An offense   committed on board a vessel
      which is at the time upon any navigable      water
      within   the boundaries   of this State,  may be
      prosecuted    in any county through which the
      vessel   is navigated   in the course  of her voyage,
      or in the county where the voyage commences or
      terminates *” (Emphasis added .)

        There Is no provision      which would slmllarly      set venue
for crimes committed aboard moving aircraft,            although    a ‘paral-
lel venue provision      might prove essential       to effective     prose-
cution    in some situations.       For example,   it might prove extremely
difficult    to prove with particularity        the county over which
a sale of lntoxicatlhg        beverages  occurred.     However, crimes
committed aboard moving aircraft         must currently      be prosecuted
under the general     penal venue statute,       Art. 13.26,     Vernon’s
Code of Criminal     Procedure,     which provides    that:

            “If venu~e ie not specifically    stated,    the
      proper eounty for the proseoution      of offenses
      is that in which the offense      was committed.”

      Your fifth    qUeStiOq.iB, therefore,   anawered in the aft
flrmative,   and venue mue’t be established    In the county where
the offenee    oharged oacured in order to.prosecute     for either
an illegal   sale or an illegal   posseeaion.

      Your sixth         question    is    stated     as follows:

              “Question  6.   Is it unlawful   for an em-
      ployee of a commercial       airline  to sell   distilled
      spirits    by the drink to a passenger      inside    an
      airplane,     which airplane    Is owned by such com-
      mercial    airline  and Is in the air above The State
      of Texas and IB in route between two points             In
      Texas?”

      This question   Is answered in the affirmative                      pursuant to
the diSCuSBion    and authority  cited in answer to                    the first   question
posed e




                                          - 1099 -
Honorable    0.   N. Humphreys,      page     11              M-227



      In addition   the legislature     has directly           prohibited
sale of liquor    by the drink.     Article  666-3,           Vernon's    Penal
Code, provides    in part:

             t(a)     The term 'open saloon'        as used In
      this Act, means any place where any alcoholic
      beverage whatever,        manufactured     In whole or in
      partby      means of th      process   of di till    ti
                liquor    compo:ed or compoundEd lnapa$‘of
                ed spirits,     IS sold or offered      for sale
      for beverage Purposes by the drink or In broken
      or unsealed      containers,     or arlyce       where any
      such liquors      are sold or offered       for sale for
      human consumption        on the premises where sold.

             "(b)    It shall   be unlawful    for any person,
      whether as principal,       agent,    or employee,   to
      operate     or assist   In operating,    or to be di-
      rectly    or Indirectly    interested    In the operation
      of any open saloon       In this state."     (Emphasis
      added.)

      Your seventh       question   Is     stated   as follows:

            "Question    7.   If your answer to Question     6
      Is syes' would it be necessary         to prove that
      the offense    occurred   In a,certaln    county in
      the State of Texas in order to establish         venue
      for the purpose of prosecution?"

      Question   7 Is answered in the affirmative.     Venue must
be established     in order to prosecute for the illegal   sale.
See Article    13.26, Vernon88 Code of Criminal Procedure,     which
has been herein     quoted in connection with our answer to
Question    5.
      Your   questions     eight,   nine     and ten are     stated   as follows:

           "Question   8.    Is It unlawful    for an em-
     ployee of a commercial       airline  to 'possess   ln-
     Bide an airplane,     which airplane     Is owned by
     such   commercial    airline    and Is in the air above
     the State of Texas and Is on a flight          in route
     between two points      In Texas, a quantity      of liquor
     or beer from which was taken liquor          or beer that
     was sold to a passenger       while such airplane      was
     on such flight?



                                    -1100-
Honorable    0.   N. Humphreys,     page      12            M- 227



            “Question   9.    IS It unlawful     for an em-
      ployee of a commercial      alrllne    to possess  ln-
      side an airplane,     which airplane     IS owned by
      such commercial    airline   and Is on the ground
      at an air terminal      In County X of the State of
      Texas, a quantity     of liquor     or beer from which
      was taken liquor     or beer that was sold to a
      paBsenger Inside     such airplane     when such alr-
      plane was In the air above the State of Texas
      In route  from a point In Texas to the air ter-
      minal In County, X of the State of .Texas?

            “Question    10.     Is it unlawful     for an em-
      ployee of a commercial        airline    to possess  ln-
      aide an a+rplane,      which airplane       Is owned by
      such commercial     airline     and la on the ground
      at an air terminal       in County X of the State of
      Texas, a quantity      of liquor      or beer from which
      was taken liquor     or beer that was Bold to a
      passenger   Inside    such airplane      when such alr-
      plane was In the air above the State of Texas
      in route from a point outside           of Texas to the
      air terminal    In County X of the State of Texas?”

         The above queatlone        describe      very strong cases of clrcum-
 stantial      evidence    tending
                                 _    to
                                      _    establish
                                             __.          possession      In a dry
 area for the purpose of sale of liquor                   or beer or possesslon
 In a wet area of liquor           or beer for the purpose of sale ;;+f;-
 out a permit of the class            required     for such privilege         I
would be so even though the airline                  held a carrier’s         permit
under Prticle        666-15(12)     because the Acts above set out con-
 stltute     something more than the transporting                  authorized     by
 such permit.        The past course of action              described     strongly
 Indicates      that possession       Is for the purpose of sale and proof
 of such past course of action              would be sufficient           to support
a jury     finding     that the Intent        of the accused was to unlaw-
 fully    sell    In the future     the liquor       or beer faund In his pos-
 session.       A conviction      based on &uch jury fln&lng would be
 sustained.        Brooks v. State,           7 S.W.2d 768 (Tex. Crlm. 1940);
 Morrison      v. State,     230 S.W.2d       08 (Tex. Crlm. 1950).” However,
 no act of poseession          of Intoxicants        is Illegal       per se unaer
‘Texas law and It is necessary                for a presumption         of illegal
 purpose to be drawn by’the             fact flndin         body in order to sus-
 tain a conviction.           Walton v. State,         1if 3 S.W.2d 203, 204 (Tex.
 Grim. 1942);       De Hart v. State,         36 S.W.2d 168 (Tex. Grim. ~1931);




                                    - llOl-
Honorable     0.   N. Humphreys,    page      13            M- 227



Piper v. State,     34 S.W .2d 283 (Tex. Crlm. 1930).   Proof of
Drier salea would be sufflcent      to establish  a Drlma facie  case
bf~posses~lon    for the purpose of sale but a jury or other
finder   of fact would not be obligated     to convict on such evi-
dence.

       Your   questions   eleven    and twelve     are   stated   as follows:

              "Question    11.    Where an accused       Is being
       prosecuted     for unlawful     possession    of liquor
       or beer for the purpose of sale In a wet area
       without a permit or license,           Is evidence    of a
       recent   prior    unlawful   sale of alcoholic       bev-
       erages by the accused        In a dry area admissible
       to prove the Intent of the accused            to unlawfully
       sell   the liquor     or beer In question       in a wet
       area without a permit or license.

              "Question    12.   Where an accused    Is being
       prosecuted     for unlawful   possession   of liquor
       or beer 'for the purpose of sale in a dry area,
       Is evidence      of a recent  prior unlawful    sale of
       alcoholic    beverages    by the accused   In a wet
       area without a permit or license         admissible    to
       prove the intent      of the accused, to unlawfully
       sell   the liquor    or beer in question     in a dry
       area?"

       The law Is stated at 48 C.J.S.    477, Intoxicating              Liquors,
Sec.   346b, Insofar  as Is here pertinent   as follows:

              "In a proseoution        for keeping or pos-
       sessing    Intoxicating      liquors     with an unlawful
       intent    or purpose,     such as an intent        to sell
       unlawfully,     all competent evidence          tending    to
       show the commlaBlon of the offense              by accused
       or calculated      to throw light        on the lawfulness
       or unlawfulness        of his possession       or on the
       Intent with,      or purpose for,        which the liquors
       were kept or possessed,           including    evidence    of
       matters before       /dr anterior      to the time of 7
        . . . the offenze       iB admissible,       provided   Tt is
       not too remote and is kept within reasonable
       limits    in point of time.




                                    3 1102-
Honorable   0.   N. Humphreys,     page 14                  M- 227



             “The facts      admissible     In evidence    include
      unlawful    sales bye accused       on recent    occasions;
               the ordering      or receiving     of, or stocking
      ip’with,     lntoxlcatlng      liquors   In quantities
      larger    than accused himself         might reasonably
      consume; /;ind 7 the indebtedness            of. accused    for
      large pur%aa&          of liquor     . . . Evidence      Is also
      admissible      to show the condition,         appointments,
      fixtures    and surroundings        of the room or place
      where the liquors         were kept . . ,‘I

      The general  rules which pertain     to the admissiblllty     of
evidence  which reflect     crimes committed by the’accused     other
than the crime for which he Is on trial       are relevant.     See
McCormick on Evidence      (West Hornbook Ed. 1954) pps. 326-333
for a more thorough     dlsousalon  than is here provided.

      Pursuant to the above discussion,         questions   eleven and
twelve are answered in the affirmative.            Proof of a prior     il-
legal   sale would be admissible       to show Intent,    motive,   scheme,
etc ., If kept within reasonable         llmlts within point of time
without    regard to whether such Illegal       sale oocurred     in a wet
or dry area.      Possession   for the purpose of sale will        constl-
tute the offense,      without   proof of whether the Intent is to
Bell in a dry or a wet area.

      Your question     number thirteen.      is   stated   as follows:

              “Question  13.    Is It unlawful     for an em-,
      ployee of a commercial       airline    company to pos-~
      Be88 in a storage      area at an air terminal,       which
      storage    area has been rented by the commercial
      airline    company, a quantity       of liquor   or beer
      which Is to be placed on board an aircraft            where
      it is to be sold to passengers          on board the air-
      craft    while the aircraft     is in flight?”

       As was stated     In response    to questions    eight,   nine and
ten, mere possession       of intoxicating     liquor   or beer Is not
per se Illegal      under Texas law and If merely being transported
under. a carrier’s     permit the possession       described   would be
legal;   otherwise,    the purpose of possession        would depend upon
the’ Inference     drawn from the evidence       by the fact finding      body.
We observe     that the question     Is not limited     by stating    that sub-
sequent sales will       take place In Texas.        In order for such pos-




                                   - 1103 -
 .




Honorable        0. N. Humphreys,    page      15                  M-227


session    for the purpose of        sale to constitute an offense,                the
possession    must be for the        purpose of sale In Texas.

         Your question    number fourteen           Is    stated   as follows:

                “Question    14.  Where liquor   or beer Is
         possessed     by an employee of a commercial      alr-
         line  company In a storage      area at an air ter-
         minal, which storage      area has been rented or
         leased or Is owned by such commercial        airline
         company, may such liquor      or beer be deemed to
         be ‘stored’     within  the meaning of Sections      &(a)
         or 4 b) of Article      I of the TexaB Liquor Control
         Act I Article    666-4,  sec.  (a>l and sec. (b) of
         Vernon ‘8 Texas Penal Code)?

      Question    fourteen   Is answered in the affirmative,      unless
the airplane    line has been Issued a “Carrier       Permit” by the
Texas Liquor Control       Board, pursuant to Article    666-15(12)
Vernon’s   Penal Code, and the storage       is In furtherance    of such
permit.    Whether such storage     by an employee of the airplane
line Is In furtherance       of such permit,   or is stored    or pos-
sessed for the purpose of making Illegal         sales in Texas, is
a question   of fact.

         ‘Yourquestions    numbers     fifteen,          sixteen   and seventeen    are
atated     as follows:

                “Question 15.    Is It unlawful    for an em-
         ployee of a commercial     airline    company that~ is
         a bona fide common carrier       engaged in Interstate
         commerce to sell    a container    of liquor   that con-
         tains less than six ounces of liquor         to a passenger
         Inside an airplane,     which airplane    is owned by
         such commercial   airline    company and is in the air
         above the State of Texas at the time of the sale
         a.yd is In route between two points       In Texas?

                “Question   16 o Is It unlawful      for an em-
         ployee of a commercial       airline    company that is
         a bona fide common carrier         engaged In Interstate
         commerce to sell      a container    of liquor   that con-
         tains less than six ounces of liquor           to a passenger
         inside   an airplane,     which airplane    Is owned by
         such commercial     airline    company and is in the air




                                     - 1104-
HQnorable     0. N. Humphreys,     page    16         :        M- 227


        above the State of Texas at the time              of   the sale
        and is in route from a point outside              of   Texas to
        a point In Texas?

             "Question    17.    Is It unlawful    for an em-
       ployee of a commercial       airline    company thatls
       a bona fide common carrier         engaged in Interstate
       commerce to sell      a container    of liquor   that con-
       talna less than six ounces of liquor           to a passenger
   ,;2 In an airplane,      which airplane     is owned by such
       commercial   airline     company and Is In the alr above
       the State of Texas at the time of the sale and Is
       In route from a point In Texas to a point outside
       of Texas?"

    : These questions   are answered            In the affirmative           pursuant
to.'the discussion   and authorities            cited in connectlo:          with
questions   one, two, and three.

       In addition,     the legislature    has directly    prohibited      the retail
sale of any liquor       produced    In whole or In part by the process
of distillation,       In containers    of less than one-half      pint,    and
has prohibited      the retail    sale of malt and vlnous liquor         in     .z
containers     of less than six (6) ounces.        Article   666-17(15),
Vernon's     Penal Code.

        Your question    number eighteen         iB stated     as follows:

                "Question     18.   Where an employee of a com-
        mercial    airline     company that la a bona fide common
        carrier    engaged In Interstate        commerce sells    a
        container     of liquor     that contains    leas than six
        ounces of liquor         to a passenger   Inside an airplane,
        which airplane        1s owned by such commercial      alr-
        line company and is in the air above the State of
        Texas at the time of the sale,           may the remaining
   )
 ,.,.
   q    containers      of liquor    that contain   less than six
        ounces of liquor        and are In the possession      of such
        employee Inside        such airplane,    be seized  under a
        proper search warrant on the theory that such re-
        maining containers         of liquor  are possessed    for the
        purpose of sale In Texas In violation            of Section,
        17 (15) of Article         I of the Texas Liquor Control
        Act (Article       666-17,    (15) of Vernon's   Texas Penal
        Code)?"




                                  -1105-

                                                                                        ‘/
     .




3%


"'Hono ra b le     0 . N. Humphreys,   page     17               M-227



         Article      666-17(15)   provides      in part:

                "(15)     It shall    be unlawful   for any person
         to Import,      sell,  offer   for sale,   barter,    ex-
         change,    or possess     for the purpose of sale any
         liquor    the container      of which contains     less than
         one-half     (3) pint;    provided   however,   that In the
         case of malt or vinous liquor          a six (6) ounce
                                e the minimum




       AS a bona flde'common     carrier   of persons engaged fin lnter-
 state commerce,    the airlines    may be authorized    by the,Texas
 Liquor Control   Board to transport     liquor   In containers   of less
 than one-half   (3) pint,    but not for sale,    use or consumption     In
.Texaa +

         In answer to question      18, you are advised    that once It
  becomes apparent     that the malt, vlnous or spirituous         liquor
,,ls destined   for sale,    use, distribution,     or consumption     within
~,the State of Texas or lf the~authorlzation          provided   forln     the
  underscored   portion    of Article   666-17(15),   quoted next above,
  has not been obtained      from the Texas Liquor Control       Board, then
  the beverage would be illicit        beverage and subject    to seizure
*by the State under a proper search warrant,            Questlon     18 is
  therefore   answered In the afflrmatlve,

        Your questlons     numbers nineteen,    twenty and twenty-one
 relate    to the sufficiency    of a complaint    or affidavit     for the
 Issuance    of search warrants,      Statutory   provisions    directly
,pertlnent     to the questions   presented    are set out below.

         Article     666-20,   Vernon08    Penal     Code,   provides    in part:

               "A search warrant may issue under Title          6
         of the Code of Crfmlnal       Procedure   for the pur-
         pose of seizing    and destroying     any alcoholic
         beverage  possessed,   sold,    transported,    e * 0
         kept, or stored    in violation     of this Act e u ~




                                       -1106-
                                                                                          .   .




Honorable      0.     N. Humphreys,     page     18                     M- 227



                 “Search wa’rrants may be Issued by any
         magistrate     upon the affidavit      of a credible
         person,    setting    forth  the name or description
         of the owner or person’ In charge of the prem-
         ises to be searched,        or stating   that his name
         and description      are unknown, the address        or
         description      of the premises and. showing that
         the described      premise is a place where some
         specified     phase or phases of this act are be-
         ing viola ted.

                 “Except as herein     provided    the applica-
         tion, issuance,      and execution     of any such war-
         rant and all proceedings         relative    thereto
         shall    conform as near ,a8 may be to the pro-
         visions     of Title   6 of the Code of Criminal
         Procedure      . . .I’

      Article   18.09, Vernon’s           Code of       Criminal         Procedure,
provides    In part:

                “A warrant to search any place suspected
         to be one where . . . Implements are kept for
         the purpose of aiding     In offenses  may be Issued
         by a magistrate    on written   sworn complaint,
         setting   forth:  ‘~   *       .’

               “1 .     A description     of     the   place        BUSpeCted;

                2. A description   of the kind of property
                alleged to be concealed  at such place,   or
                the kind of implement kept;

                3. The name,        If known, of the person sup-
     i
                posed to have       charge of such place,  where
                It Is alleged       that It is under the charge
*,              of any one;

                 4. When It is alleged   that Implements are
                 kept at a place for the purpose of aiding
                 in the commiaslon of the offenses,    the
                 particular offense  for which such imple-
               ,-ments are designed  must be set forth;    and




                                                                    .

                                        -1107:                 ‘.

                                                                                      :
.    .




    Honorable          0. N. Humphreys,       page     19              M- 227



                    5.    Such other facts  as may be required    by
                    Article   18~01 to establish  probable   cause.”

             Article      18.01,   Vernon18      Code of    Criminal    Procedure,   pro-
    vides:

                      “A ‘search  warrant’ IB a written        order,
             issued by a magistrate,         and directed    to a peace
             officer,     comnrandlng him to search for personal
             property,      and to seize   the same and bring, It
             before     such magistrate;     or it Is a like written
             order,     commanding a peace officer        to search a
             suspected      place where it Is alleged       stolen    pro-
             perty Is commonly concealed,         or Implements kept
             for the purpose of being used In the commlsslon
             of any designated      offense,

                   ?‘No search warrant shall      Issue   for any pur-
             pose  In this State unless a sworn complaint            there-
             for shall first     be filed    with the Issuing     magls-
             trate setting    forth   sufficient    facts   to satisfy
             the magistrate     that probable    cause does In fact
             exist   for Sta issuance.”

          Article         15.05,   Vernon’s      Code of    Criminal    Procedure,   pro-
    vides :

                    “The complaint        shall be Bufficlent,  without
             regard to form, if         It have these substantial    re-
             qulsites:

                    “1 * It must state the name of the accused,
                     If known, and if not known, must give some
                     reasonably definite description  of him.

                    2.   It must show that the accused has com-
                    mitted some offense     against  the laws of the
             j.     State,  either directly     or that the afflant
                    haB good reason to believe,      and does believe,
                    that the accused   has comml,tted such offense.

                    3.  It must state the time and place of                  the
                    commission of the offense,  as,deflnltely                 as
                    can be done by the afflant.




                                              -1108-
                                                                                 .       .




Honorable      0. N. Humphreys,      page 20                  M-227

                                                                                     ,
               4.    It    must be signed by the affiant bJ:
               writing      his name or affixing his mark,

       Provisions     of this nature   are discussed   In 48 C.J.S.             617,
Intoxicating      Liquors,   Sec. 393c, Insofar    as here pertinent             as
follows:

               “Under the various         constitutional      and
       statutory      provisions      protecting     against   un-
       reasonable       searches    and seizures,       an appli-
       cation     for a search warrant for a violation
       of the liquor        laws must Include ,a showing oft
       probable      cause.     For such purpose,        probable
       cause consists         of such facts      and circumstances
       %a would reasonably          induce the belief        that
       accused      Is guilty    of a liquor       law violation
       or that a criminal          violation     of the liquor
       laws Is being committed on the premises                  sought
       to be searched         or that property       subject    to
       forfeiture       is located     on the premises       sought
       to be searched.
              ,I      The existence    of probable    cause
       does n&‘d&nd        on the facts   actually    dls-
       closed    on the search,    but on the showing made
       on the application      for the warrant     . . .
               II
                 .   . .

               “The application       may sufficiently      es-
       tablish    probable     cause by setting       forth  the
       evidentlary      facts   on which the application
       is based . . . An Application            which merely
       allege6    legal    conclusions    is Insufficient       .‘I

       Your questions    numbers       nineteen,     Wenty     and twenty-one
are   stated as follows:

             “Question    19.     If It is unlawful      for an em-
       ployee of a commercial        airline  comvny       to sell
       any type of alcoholic        beverage  inside     an airplane
       that is owned by such commercial          airline     company,
       and is In the air above the State ,of Texas, would                  ’
       a complaint    or.affidavit      of a passenger      who pur-
       chased such alcoholic        beverage as a result       of




                                      - 1109-
.,    .




     Honorable   0.   N. Humphreys,     page 21                 M- 227



          such unlawful     sale of such        alcoholic    beverage
          setting  forth    the details       of the sales     transaction
          provide  sufficient     probable       cause for a magistrate
          to Issue a search warrant           for the search of such
          airplane  and a seizure,       as    a result    of such search,
          of any alcoholic      beverages       In possession     of any
          employee of such commercial            airline   that are
          found on such airplane?

                  “Question   20.    If your answer to Question
          19 Is ‘yes’ would such complaint             or affidavit
          of the passenger      who purchased an alcoholic            bev-
          erage Inside an airplane          In the air above the
          State of Texas as a result          of an unlawful       sale
          of such alcoholic       beverage,     setting   forth    the
          details     of the sales transaction,         be insufficient
          if it failed      to state the County in which the
          sale    took place?

                  “Question   21.    If it is unlawful      for an
          employee of a commercial         airline    company to
          sell   any type of alcoholic        beverages    Inside an
          airplane    that Is in the air above the State of
          Texas, would a complaint         prepared    by a passenger,
          who purchased      such alcoholic      beverages   as a re-
          sult of such unlawful        sale of such alcoholic         bev-
          erages,    setting   forth   the details     of the unlawful
          sales transaction,       be Insufficient       to support the
          Issuance    of an arrest     warrant,    or to support a
          criminal    prosecution,     If such complaint       failed   to
          state the County in which the unlawful              sale took
          place?”

         While question      twenty Is somewhat ambiguous,      we assume
    that in both questions      nineteen    and twenty the affidavit      isimade
    by a credible   person and in addition        to setting forth    the details
    of the unlawful    sales   transaction,    the affidavit   further   states
 c that liquor    Is possessed     by the airline    company for the purpose
   ,of making Illegal     sales .In Texas.

            Question   nineteen    is answered in the affirmative   in accordance
     with the applicable       statutes  quoted above and the discussion    In
     connection    with our answers to questions     eight,   nine, and ten, and
     questions    eleven and twelve above.




                                        - 1110-
Honorable   0. N. Humphreys,         page 22                  M-227



       Questlon    twenty Is answered In the negative..           It is an-
necessary      for the complainant    to allege     the ‘precise   Texas County
where the unlawful       sale occurred    when the unlawful       sale Is al-
leged as an evidentlary        fact only (which tends to establish           a
present   violation     of the law prohibiting       the possession     of liquor
for the purpose of sale within          the jurisdiction       of the magistrate).
To establish      probable   cause for the warrant to issue          the com-
plainant    should In his affldavlt        identify    the sale as one taking
place over the State (as by stating            that the sale took place be-
tween two-<Texas points,       or that the sale took place after          an
announcement had beei made that the aircraft              was within    the
State,   etc.)

      Ques.tlon twenty-one         is answered In the affirmative,     as It
apparently    relates     to a complaint     which would be used to Initiate
a prosecution     of the employee for making an illegal          sale.    Such a
complaint   must specify        the County in which the sale occurred         in
order to confer       jurisdiction     uaon the magistrate   of such county to
Issue a warrant of arrest,           or to support a criminal    prosecution.

       However, If the Import of this question       Is directed   to a
charge of possessing    liquor    for the purpose of sale,     and the prior
sale Is merely evidentlary       on the question  of whether the liquor
is possessed    for the purpose of sale,     then this question    is
answered In the negative,      for, the reasons  stated  in answer to
question   20.

      Your final    question    Is     stated   as follows:

             “Question   22 O Where a commercial      airline
      charges a passenger      for a ride on one of its
      airplanes    and thereafter    when the passenger       18
      Inside    the airplane   in air above the State of
      Texas an employee of such commercial         airline
      serves a glass of liquor       to such passenger      free
      of charge,    does such transaction    constitute       a
      sale of liquor      by such employee of the commer-
      cial airline     to such passenger?”       ‘,

       We are unable to give an unqualified      answer to this question
either   in the affirmative     or negative.  Depending upon the cir-
cumstances   presented    In the particular  case,   a court or jury
could either   find that the charge of serving       alcoholic   beverages
was added Into the price      of the airline  ticket    and an indirect




                         c
                                     - llll-
. .   ..




  ,. Honorable    0.   N. Humphreys,    page 23                   M- 227


      “sale”  took place in violation     of the law or that the drinks
      were in reality   actually  free as a part of the service   given
      to passengers   and no “sale”   took place,

                                   SUMMARY
                                   -------
                  It Is presently     unlawful    for an employee
           of a commercial    airline     to sell     lntoxlcatlng
           alcoholic   beverages    In the air above the State
           of Texas.    If the sale of Intoxicating             alcoholic
           beverages   takes place in the air space over
           state territory,     state   law is applicable          and such
           sale is Illegal    without     regard to the point of
           destination    or point of origin        of the airflight.

                   Venue for the purpose of prosecut lng offenses
           (and jurisdiction       for Issuance     of a warrant)        must
           be laid In the county where the offense               charged         “’
           occurs.      In the aase of prosecution          for illegal
           possession     for the purpose of sale,          venue (and
           jurisdiction      for issuance     of a warrant)      is within
           any county where Intoxicating           alcoholic     beverages
           are possessed       for the purpose of illegal          sale.    In
           the case of prosecution         for an illegal       sale,    venue
           for trial     (and jurisdiction      for the issuance         of a
           warrant of arrest)        Is in the county where the sa,le
           occurred,

                 An unlawful       sale may be properly     alleged    as
           an evidentlary       fact In an affidavit     for the lssu-
           ante of a Bearoh warrant (and may be proved In a
           prosecution)      for possession    for the purpose of ll-
           legal   sale,   since such a prior     sale would show ln-
           tent,   motive,     scheme, etc.    In prosecution8      for
           posseeslon    of liquor      for the purpose of sale,       a
           prior   sale by the defendant,       anywhere In Texas, may
           be shown as evldentlary         on the question     of the pur-
           pose of the possession.

                                            Y&i%     very   trllly,



                                                          C, MARTIN
                                                   rney   General of Texas




                                        - 1112 -
                                                                       . .




                                                        .’


                                                                 .,~
                                                                   :



Honorable    0. N. Humphreys,   page 24         M-227        :


Prepared    by Larry 3. Craddock
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips,     Chairman
Kerns Taylor,   Co-Chairman
W. V. Geppert
Harold Kennedy~
John Banks
Robert La++tlmore     '

A. J'. Carubbl,   Jr..
Executive  Assistant




                                -1113-

                _        .                . .
