                                                                       ~-256


                  THEATTORNEY                        GENERAL
                                   OF TEXAS

PRICE  DANIEL
ATTORNEYGENERAL

                                       April   8, 1947

           Hon. Augustinecelaya,   Chairman
           Liquor Regulation Committee
           House of Rpresentatives
           Aus tin, Texas             Oginion No. V-134
                                               Re:    Conatitutfonality    or
                                                      House Bill No. 118,
                                                      50th Legielature,    re-
                                                      latite  tomthe sale or
                                                      liquor to minors.
                                                                         ‘.
           Dear, Sir:,

                           YOUi   request ror an opinion      upon the above
           subject       matter   i6 at3 r0ilows:
                         “AS chairman 0r the Committee . on
                  Li uor Regulation,    I will appreorate an
                  op Pnion as to the oonstitutionality    or
                  House Bill 118 and amendments.
                         “1 am especially concerned ‘about
                  the change in the law in tha.t the,author
                  ha6 eliminated the word ‘knowingly’ from
                  Artiole   666-26(b).”
                          We have carefully      examined Eouse Bill     118 or
           the 50th Ceglelature    and likwtW3 the kit10 thereto aa
           ahown by eoml.ttee    aneadmqit.    T&r blfl purports.to a-
           mend Arti .ols 666-26 or the Penal. code Or &he State or
           Texas.   This A.8 lnaocuratb and should be corrected ae
           in the re-droftad    f&eadaeat lthlah we have taken the
           liberty   to prepare and atteoh horrto.
                           The purpose   of the Bill     is to omit ‘the word
           ‘knowingly’       iro8tI that part Of the Texas LiQuor COnt??Ol
           Aot whleh prohibits sale of certain liquors to pereons
           under 21 years 0r age.  Under the proposed bill, sale
           to a minor would be an offense regardless              of whether
           the seller had knowledge of such non-age.
                     We note that you are neepecially concerned a-
           bout the ohangr in the law in that the author has elim-
Bon. Augustine        Celaya - Page 2     V-134


inated        the word 'knowingly'    from Artiole   666-26(b)."
           The elimination   of the word 'knowingly'  does
not affect  the validity   of the act - it merely goes to
the merits of the bill,    and presents a question solely
for the consideration    of the Legislature.
          Corpus Juris Seoundum Volume 22, Seotion                 30,
announoes the general rule as follows:
               n* * *e On the other hand, the Legis-
        lature may forbid the doing of, or the fail-
        ure to do an act and make its commission or
        omission criminal without regard to the in-
        tent or knowledge of the doer, and if such
        legislative    intention    appears, the courts
        must give it effeot,      and in such cases, the
        &i;E,of     the inhibited    act aonstitutes    a
                  and the moral turpitude or purity of
        the m;tive by which it was prompted, and
        knowledge or ignorance of its criminal char-
        acter, are immaterial circumstances          on the
        question of guilt;      such legislation     is enA
        acted and is sustained;for         the most part,
        on grounds of necessity,        and is not viola-
        tive of the Federal Constitution.         * * *e
                In Pappas v* State,    188 5, W. 52, the Supreme
Court    0r    Tennessee said:
              “It being clear that in statutory  of-
        fenses a criminal intent or fraudulent   in-
        tent is not always eassntial,   it Is equally
        olear that whothor the soienter   is a materi-
        al element of the crime or not must be deter-
        mined by the language used by the Legislature
        in defining the effe21se.w
          In Texas Liquor Control Board v. Duvall, 170 S.
W, (26) 820, involving a cancellation of a permit for em-
ploying a boy under eighteen years of age, it is said:
              "The prohibited  act of employing a
        minor in a position   fraught with tempta-
        tions that may lead to a life of dissipa-
        tion, is declared in unqualified   terms,
        unrelieved  by any language importing that
        knowledge of the age of the minor, or that
        either good faith or intent was an element
Hon. Augustine     Celaya - Page 3    v-134


     of the offense.    In authorizing  the cancel-
     lation of a license for the sporadic sale of
     beer to a person under twenty-one years of
     age, the ,same Article  of the statute  in Subd.
     1 (a), provides that such sale must be ‘know-
     ingly’ made; but with reference to the offense
     of greater enormity, that is, of employing
     a,minor in a business where he is constantly,
     day after day, exposed to a temptation that
     may result in his becoming an inebriate,     no
     such qualifying  language is found.
            “This construction   of the statute is in
     line with that given similar statutes,     not
     only by our courts but by courts of the coun-
                   In Peacock v. Limburger 95 Tex.
     ,“Fi ‘z6eri W 764 our,Supreme Co&t               -
     ing’eertiiiei    queition, held that a ;a%?$
     liquor to a minor constituted     a breach of
     the dealer’s    bond, whether the seller  knew
     the fact of minority or not,* * *n
              Justice Williams   of the Supreme Court, writing
the opinion     in Peacock vs.   Limburger, 66 S. W. 764, said:
           “The statute in force when the sale was
     made (Rev. St. Art. 5060g; Aots 1893, p, 177)
     required a bond on condition   that the dealer
     would not sell intoxicating  liquors,. eta., to
     any person under the age of 21 years, * * *

           “The statute also gave to any person ag-
     grieved by the violation     of the provisions   of.
     the bond a right of action for $500.00, as lie
     quidated damages. A proviso was to the effect
     that ‘where the sale is made in good faith,
     with the belief   that the minor was of age, and
     there is good ground for such belief,       that will
     be a valid defense to any recovery on such bond.’
     The act of 1887 contained no such proviso,       and
     under its provisions   it has been held by the
     Court of Appeals -- correctly     we think -- that
     a sale of liquor to a minor constituted       a breach
     of the bond, whether the seller knew the fact
     of minority or not.    The reasons for the deoi-,
     sion are so fully and satisfactorily      stated in
     the opinion of Judge Willson that a referenod
     to it without further discussion     of the point
     there decided is suffioient.      McGuire vs. Glass
     (Tex. App.) 15 S. W. 127.”
Hon. Augustine   Celaya - Page 4   V-134


                        SUMMARY
           House Bill ll8, 50th Legislature,     with
     oorreoted aommittee amendment6 ,rllminating
     the word "knowingly" rrom the offense or the
     stile of 11 uor to'parsons   under 21 ~years of
     age (Art* %66-26 V. P. 0.)     is oonstitutional.
     Omission of the word "bowinglyn      in defining
     the orrense does not affeot the validity,of
     the bill,  going only'to   the merits of the bill.
                                   Yours very truly
                               ATTORNEY
                                      GENERALOF TEXAS


                                 &3ccL
                               BYOcie      J$iL.-         l
                                      Speer
0S:lh:wb:mmo                        Assistant


                               APPROVED
                                      APR 9, 1947

                                3i?.&  esfL.2
                               ATTORNEY
                                      GENERAL
