Honorable Paul Spillman              Opinion NO. M-1160
County Attorney
Collingsworth County                 Re:   Interpretation of the
916 West Avenue                            phrase "knowingly make
Wellington, Texas 79095                    available" an alcoholic
                                           beverage to a minor as
                                           contained in Article
                                           666-17 (14) (b), Vernon's
Dear Mr. Spillman:                         Penal Code.

     You have requested an opinion of the Attorney General of
Texas in reference to the following presented question:

          "I would like to have the interpretation of
          the words -- knowingly make available to --
          as the same'are used in Article 666-17 (14-
          B) of the Vernon Penal Code of the State of
          Texas. "

     You further presented two (2) hypothetical fact situations
or examples involving the presence of a minor in an automobile
containing alcoholic beverages in the possession of an adult.
We will confine this opinion to the question presented as our
conclusion will, in all probability, assist you in analyzing
the fact situations.

     Article 666-17, Subdivision (14) (b) is a provision of the
Texas Liquor Control Act and was enacted in its present form in
~1969 (61st Leg. R.S., 1969, ch. 38, p. 80). It provides as
follows:

               "It shall be unlawful to purchase an
          alcoholic beverage for or give, or knowingly
          make available, an alcoholic.beverage to a
          person under the age of twenty-one (21) years
          unless the purchaser, person making available,
          or giver is the parent, legal guardian, adult
          husband or adult wife of the person for whom




                            -5654-
Honorable Paul Spillman, page 2.         (M-1160)



          the alcoholic beverage is purchased, made
          available, or to whom it is given. A
          person who violates a provision of this
          paragraph is guilty of a misdemeanor and.
          upon conviction is punishable by a fine
          of not less than One Hundred Dollars
          ($100) nor more than Five Hundred Dollars
          ($500)."   (Emphasis added).

     Your inquiry actually raises two questions, to-wit:   (1)
what is meant by "knowingly making available" an alcoholic
beverage to a minor, and (2) is knowledge of the age of the
minor an element of the offense of knowingly making available
an alcoholic beverage to a minor?

     The word "knowingly", when used as a part of the statu-
tory definition of a criminal offense, has been stated to
have-no single fixed meaning.  Finn v. United States, 256 F.2d
304 (4th Cir. 1958). In most instances its meaninq rests upon
the character of the offense charged.  State v. Contreras, 253
A.2d 612 (R.I.Sup. 1969); R. D. Lowrance, Inc. v. Peterson,
185 Neb. 679, 178 N.W.2d 277 (1970). "Knowinqly" in the crim-
inal sense has been stated to mean that a person, knowing
about what he is doing, does so wilfully, intentionally and
understandingly.  Commonwealth v. Althenhaus, 317 Mass. 270,
57 N.E.2d 921,(1944); Rose v. State Board of Registration for
the Healing Arts, 397 S.W.2d 570 (Mo.Sup., 1965); United Sta-
tes v. Martinez, 73 F.Supp. 403 (M.D.Pa. 1947); United States v.
Smith, 249 F.Supp. 515 (S.D.Idaho 1966); Standard Oil Co. of
Texas v. United States, 307 F.2d 120 (5th Cir. 1962).

      "Knowingly' is sometimes used as synonymous and in con-
junction with "wilfully".   Garza v. State, 47 S.W. 983 (Tex.
Crim. 1898) ; Good v. Commonwealth, 155 Va. 996, 154 S.E. 477
 (1930); People v. Odom, 19 Cal.App.Zd 641, 66 P.2d 206 (1937);
Lamb v. State, 293 P.2d 624 (Okla.Crim. 1956); State v. Booton,
85 Idaho 44, 375 P.2d 536 (1962); United States v. Molin, 244
F.SUDD. 1015 (D.Mass. 1965). It has also been used in the
sensyof   "intentionally". .Cheffer v. Eagle Discount Stamp Co.,
156 S.W.2d 591 (Mo.Sup. 1941); Commonwealth v. Sarricks, 161
Pa.Sup. 577, 56 A.2d 323 (1948); United States v. Loveknit
Mfg. Co., 90 F.Supp, 679 (N.D.,Tex. 1950).




                              -5655-
Honorable   Paul Spillman, page 3.        (M-1160)



     "Available" has a general, common meaning -- capable of
being made use of, or accessible.    Nemo v. State, 178 Misc. 286,
34 N.Y.S.2d 40 (1942): Brown v. State, 200 Miss. 881, 27 So.2d
838 (1946); Garrison.Independent School District V. McDuffie,
      ...._.I492 (Tex.Civ.App. 1967, error ref. n.r,.e.); Duncan v.
414 S.W.2d
Unitei1 States, 368 F.2d 98 (5th Cir. 1966).

      "Knowingly" appears to be the key word in the statute un-
der inquiry.    This word has been stated to describe a conscious
and deliberate quality which negates accident, inadvertance,
mistake, or other innocent reason.     United States v. Schneider-
man, 102 F.Supp. 87 (S.D.Ca lif. 1951)     ?eople v. Cre a", 206
Misc.  314, 136 N.Y.S.2d 688                        by,
392, 240 N.E.2d 595 (1968); State v.
Dalel, 280 F.Supp. 938 (N.D -Ill. 1968); Popeko v. United Sta-
test 294 F.2d 168 (5th Cir. 1961); Fromberg, Inc. v. Thornhill,
315 F'.2d 407 (5th Cir. 1963 1. "Knowingly", when used in a
criminal statute, imports culpable intent as a necessary ele-
ment of the offense.    Erby v. State, 181 Tenn. 647, 184 S.W.2d
14 (1944); People v. McHugh, 271 App.Div. 135, 63 N.Y.S.2d 319
 (1946); State v. Kelley, 225 La. 495, 73 So.2d 437 (1954);
Graves v. United States, 252 F.2d 878 (9th Cir. 1958); Felton v.
United States, 96 U.S. 699 (1878).
                                                     .
      From any analysis of the decisional authority above and in
response to the first portion of your inquiry, in order to be
convicted of the offense of making an alcoholic beverage avail-
able to a minor under Article 666-17, Subdivision (14) (b),
the alcohol must be made accessible to,the minor.       In addition,
and most importantly, the person charged must have, with a cul-
pable motive,   intentionally and deliberately, placed an alcoholic
beverage where it is accessible to the minor with the intent that
the minor partake of the beverage.     The use of the word "knowing-
ly " in a criminal statute narrows the scope of the enactment by
exempting innocent or inadvertent conduct from its proscription.
Landry v. Daley, supra.     "Knowingly" imports something more
than carelessness and signifies guilty knowledge, evil or bad
intent.    People v. McHugh, supra. The statute would not cover
a situation in which the alcoholic beverage was made accessible
to the minor "unwittingly", "unconsciously", or through accident,
carelessness, or mistake.

     For example, in Simpson v. State, 151 S.W. 303 (Tex.Crim.
1912), the minor testified that he was at a gathering at which




                                -5656-
Honorable   Paul Spillman, page 4.        (M-1160)




the defendant was present.    He and the defendant went outside
of the yard gate where the defendant picked up a bottle of
whisk     took a drink, and placed it by a ost. He stepped back
a dis Y'ante and the minor picked up the bo i tle and took a drink
of whisky from it. The Court reversed the conviction stating
there was no evidence the defendant gave the minor any intoxi-
cating liquor or told him where it could be found.

     In Ethridge v. State, 141 S.W. 89 (Tex.Crim. 1911), the
appellant was convicted for "knowingly" giving and delivering
intoxicating liquor to a minor.   The minor was in a group of
adults who were drinking the liquor. When the bottle was placed
on the ground, the minor picked it up and took a drink from the
bottle.   The court had before it the testimony of the minor that
"no one told me not to drink the whisky, nor did they in any
manner try to stop me; they did not have time; I was too quick
for them".   The minor further testified that the defendant "did
not give his permission for me to drink it". The Court reversed
the conviction for insufficient evidence.

      The second portion of your inquiry concerns use 'of the word
"knowingly" in connection with "knowledge" of the minority of
the person to whom the alcoholic beverage is made available.     In
order,to constitute the offense of knowingly making available an
alcoholic beverage to a minor, the evidence must show, not only
the minority, but knowledse of that fact on the part of the ac-
cused.   Ear&t    v. State,-201 S.W. 175 (Tex.Crim: 1918); Gray v.
State,  72 S.W.  169  (Tex.Crim. 1897). Henderson v. State, 38 S.W.
a mTex.Crim.     1897); People v. Shapiro, 4 N.Y.Zd 597, 152
N.E.2d 65 (1958); Smith v. State, 115 S.W.2d 412 (Tex.Crim.
1938). Mere proof of the age of the minor by the State is in-
sufficient.    Gray v. State, supra; Earnest v~. State, supra;
Smith v. State, supra.

      "Knowingly" as used in the statute under consideration does
not involve absolute knowledge or intent.   United States v. Weis-
man,.83 F.2d 470 (2nd Cir. 1936). The Court stated in Greenway
TState,    8 Md.App. 194, 259 A.2d 89 (19691, in dealing with
the subject of knowledge of a fact, that a defendant cannot
deliberately shut his eyes so that he would not have knowledge
of what otherwise be obvious to his view. He may be placed on
notice of the apparent minority of the person to whom the alco-
holic beverage is made available and be required to call for




                              -5657-
Honorable Paul Spillman, page 5.         (M-1160)



inquiry. Rosen v. United States, 161 U.S. 30 (1896); Iberville
Land Co. v. Amerada Petroleum Corporation, 141 F.2d 384 (5th
Cir. 1944) .

     "Knowingly" has been stated to mean such information as
would cause a person of ordinary prudence to make further in-
quiry. Feldman v. South Carolina Tax Commission, 303 S.C. 49,
26 S.E.2d 22 (1943); cf., American Express Co. v. Commonwealth,
171 Xy. 1, 186 S.W. 887 (1916). In State v. McCormick, 56
Wash. 469, 105 P. 1037 (1909), a Washington Code provided that
every person who shall "knowingly" sell or give a minor intoxi-
cating liquors without the written consent of his parent or
guardian shall, on conviction, be fined, etc. The Court held
that an instruction that the sale was made knowingly within
such statute if defendant's bartender knew, or in the exercise
of reasonable prudence, should have known that his customer was
a minor at the date of the alleged sale, corectly defined the
term "knowingly".

      Factors that may be taken into consideration and proved by
the State to show that a defendant should have known that he
was making an alcoholic beverage available to a minor are evi-
dence of age, appearance of the minor, size of the minor, and
years known by the defendant.   Sears v. State, 34 S.W. 124 (Tex.
Crim. 1896). Also, the State may show the minor informed the
defendant of.his age some time prior thereto.
State, 176 S.W. 331 (Tex.Crim. 1943). The State=-F-
                                                  may 8 ow the
minor  furnished the defendant with identification showing him
to be under twenty-one. Slawson v. State, 276 S.W.2d 811 (Tex.
Crim. 1955). The State may use the testimony of a third per-
son that the minor did not appear to him to be twenty-one years
of age, but the third person may not testify as to the effect
of the minor's appearance on others. Ferguson v. State, 95
S.W. 111 (Tex.Crim. 1900).

                        SUMMARY,

          In order to be convicted of "knowingly,"
         ~,making an alcoholic beverage available to
          a minor under Article 666-17, Subdivision
          (14) (b), Vernon's Penal Code, a defendant
          must, with awareness and a culpable motive
          have intentionally and deliberately, placed




                             -5658-
Honorable Paul Spillman, page 6.        (M-1160)



          said alcoholic beverage where it is acces-
          sible to the minor with the intent that
          the minor partake of the alcoholic beverage.

          Further, the person making available the
          alcoholic beverage must have known that the
          recipient was a minor or had such infor-
          mation from his appearance or otherwise
          as would lead a prudent person to be-
          lieve that such person was a minor, and
          if followed by inquiry must bring know-
          ledge of that fact home to him.




                                       y General of Texas

Prepared by Jay-Floyd
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman


Gordon Caes
Harriet Burke
Lonny Zwiener
David Longoria


SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




                             -5659-
