Honorable   Charles E. Hughes                    Opinion    No.    C-421
County Attorney
Bowie County Courthouse                          Re:     Whether    a motor hotel and restau-
Texarkana,   Texas                                       rant, 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
Dear     Mr.   Hughes:                                   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 testi-
 mony 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
                  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 fur-
        nishing 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 consider-
        ation 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 es-
                         tablish 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 sup-
        pers; 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 pur-
                         chase 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 Colum-
        bia, 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 Colum-
                         bia, 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
                  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-
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 con-
                 strue the language         to include a neighbor’s      mother-
                 in-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 justi-
                 fied 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 un-
                 lawful 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 con-
                 sumption.

                                                    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-
