                      THEATTORNEY                       GENERAL
                                    OF       TEXAS
                                    Ausniu      aa. TEXAS
    PRICE  DANIEL
    ATTORNEYGENERAL




                                                  Oc6ober 27, R949



                  Hon. Bob Long,                        Opinion No. V-939
                  District Attorney
                  Travis County                         Rc:     The lsgality of consumisq
                  Austin, Texas                                 liquor at a club reoerved
                                                                for members and their
                                                                guests by a qxemb4r tkere-
                                                                of between the houro of two
                                                                and three o”clock a.m. uder
                                                                submitted facts.



                           Your    request for an optnion read@ in part as followso

                                    ‘*I&. Jones is a member of a private
                           club with down-town club room#. The club is
                           opea 60 members only, except tbet tbd! mem-
                           bers may bring invited guests wt4b t&m, and
                           80 me alse is allowed in tbe club, The otob
                           members are charged annual duee,, exe@ for
                           ?hasfirst twenty members, that joined the chzb,
                           All new members are admitted 20 the club only                 .
                           upon the ree ommendaticnc&et least one present
                           member a

                                   “‘TM club does not have a liguo~ permit
                           or beer 11cenee, end does not sell intoxioat~
,                          Ptquor OF alcoholic bevweges of any k&d0 A
                           xrmnbe~ in good stem&g g@oe to tlae club et
                           approx8matolp two o’clock ama OEITueedq
                           morning, He takes to the club with hkn~a quart
                           of liquor, He plaoes the liquor cm the tab& sad
                           orderes G&ager Ale and ice and a glass from tb0
                           manager of t&s club, for which he pays the c&b
                           for tie ice and GdDgeo Ale. The membo+ mOloa
                           his own drinks and QOMSXIM~the liquor on the
                           premises, The member s+ays there and Herr
                           seve+aI drinks of ltquo~ between ths hours ok
                           bvo    o&&Rocka.m.    end   fthee   o’oloek   a.ma   08 the
                           Twedag morn$ng fn the cBu&”
    Hon. Bob Long, Opinion No. V-939, Page 2



               Based upon the above facts you present for     our dater-
    mini&ion   the following quastionz

                        ‘Questiont Did the consumption of the
               liquor by the member in the private club of
               which he was a member in good standing be-
               tween the hours of two o”clock a,m. and three
               o’clock a.m. on Tuesday morning take place
               in a public place within the meaning of Sub-
               division (1) of Section 4(a) of Art. I of the Tex-
               as Liquor Control Act I , ” or did the consump-
               tion of the ltquor by the member take p&ace in
               a private p&e0 and/or private club?O

              We assume that the facts and question presented relate
    to the prosecution or defense of some contemplated action in
    the district or inferior courts of Travis County rather than to
    some hypothetical situation, and is therefore a proper request
    for the Attorney General to consider under Article 4399, V.C.S,

               Artiole   666-4 (6) (l), Vexnon”s Penal Code provides       that:

/                      “It shall be unlawful for any person to
               consume: any alcoholic beverage in any public
               place, or for any person to possess any alcoholic
               beverage in any public place for the purpose cf
               consuming the same in such public place, at any
               time on Sunday between the hours of I.:15 a,m.
               and 1~00 o”elock pm,, an,d on all other days at
               any time between the hours of 12~15a.m. and
               7200 o”clock a.m. m

              Neither the Texas Liquor Control Act nor the cases de-
    cided under such Act have defined what is meant by the term *pub-
    lic place 1O1No definition of such term was announced in the recent
    case of Suburban Club, Inc, v, State, 222 S,W,2d 321, (Tax, Civ.
    App., 1949, error ref. n.x.e.).  Such being true we must look to
    those cases dealing with the meaning of “‘public place” as used in
    various other statutes to determine if the term is capable of an
    exact and standard definition, or whether it BB a flexible term de-
    pendentupon the particular fact@ and circumstances in @@ah indi-
    vidual situation.

             In the early cases of State v, Alvex, 26 Tex, 155 1861) and
    Parker v, State, 26 Tex, 204 (mbL) both of which involve 6 the quea-
    tion of what constituted a public place in contemplation of the gam-
    ing laws, it was recognized that the question was an issue of fact to
    be decided by the juPy under proper instructions from the Court.
    b the letter case the cpurt tersely rtated thats
Hon, Bob Long, Opinion No. V-939, Page 3



                   “Whether a place is a public place or
          not, o s is a question of fact, or a mixed ques-
          tion of law and fact, and is always proper to
          bo submitted to the jury, under the instruction
          of the Court.*

          The hurt in the Ptrktr Case, pointed out “that a pub-
lic place does not mean a place devoted solely to the uses of the
public, but means a place which is, in point of fact, public as
distinguished from private,” and further, that “a place may be
public during some hourm of the day, and privaUe during other
hours.“’ Also, in determining whtther a particular place is pub-
1%~or private in a given situation it is necessary and proper to
coneidtr the object of the particular statute under consideration
and tke end sought thereby, Parktr v. State, supra.

            Subsequent case8 %nvolv%ngthe ismt of public place
 where it has been ltft undefined by tht statute have rtcognined
 the rule that it is a question of fact. Murchison v. State, 5 S.W.
 508, (Tex. Cr%m. 1887), involving a conviction for intoxication in
 a publ%c plact%January v. State, 146 SW. 555, (Tex. Crkn. 1912),
 %nvolv%nga cenviction for intoxication In a public place; Grant vc
 &&      27 SW. 127, (Tex. Grim     1894), %nvolv%ngthe question ‘of
 whether a clubroom was a public plact within the statute prohibti-
 tag ambg with cards; Huf&nua v. St&t,       92 S.W. 419, (Tax. Crbn.
,1906f , %nvolv%nga complaint wtfh rtftrtnce    to uat of oboctne Im-
 hue t in a public place; Punh v. St&t, ll7 S.W. 817, (Ttx. Crkn.
 19099 , &volv%ng Maxication in a public plact.

          The above ctsta clearly reflect that there is no etandard
def%n%tionof a *public place” wbtre %t%anot defisred in the part%+
ular statute, Furthermore, them cast6 emphasize that it is ntctt-
sary to consfder the dtfferent cfrcumstancts     presenttd in each fact
s%tuaNon %ndetermining the question of fact as to whether the par-
ticular place is %nfact ““publ%cQP’Being a question of fact, it dots
not necessarily follow that the club %nqueshfon is not a “‘public
place* within the meaning of the 16quor lawm mertly because it is
a private club open only to members and #e%r %uv%ted       guests. A
determination of the fesue w%U &aped u)oaa all the facts and cir-
eumstanees surrounding the operation ef tht dub, and the Attornty
General cannot advise ytu that the dub %Sor %anot a public place
w$th%nthe mtan%nngof the liquor laws bocauot that issue it for the
jury to dec%da under proper iastruetf~r      fz?amthe cturt.




               Whtther a place ia a “;lublk place’
         w%Mn the mtan%ng of tht Texas L.i’quor Control
Hon. Bob Long, Opinion No. V-939, Page 4



        Act (Art. 666-l et seq., V.P.C.) 6s a question
        of fact to be determined by the jury under
        propef inshuctions from the court.


                               Very tpuly yours,

                       ATTORNEY      GENERALOFTEXAS


                            ceizLd=J~~O
                       BY      Charles D. Mathews,
                              Executive Assistant

CDM:v

                               APPROVED:


                              z?CL    2&
                               ATTORNEYGENERAL
