Hon. Bert~Ford
Administrator
Texas Llquo? Control Board
Austin, Texas
Dear Sir:             Opinion NO. 0-1882~
                      Re: Right of lnaivlaual to pin-chase'
                           liquor for own'use lriwet county
                           and transport the same to his
                           home Fn dry county.
        This will acknowledge receipt of your letter of
January 22, 1940, in which you submlt for an oplnlon of this
department the~.questlons:
        "Under the law Is it pertilsslblef~ora person
    living in Collln County/which Is a dry county, to
   ~drlve his automobile to Dallas County, which Fs a
   wet county, and.there purchase whiskey or other
    intoxicating liquor for his own personal use, and
    haul the same back to his home in Collln Coiinty,
   under Section 23 (a)~,'Article I, of the Texas
   Liquor Control Act, and not be guilty of a law
   violation?
       "In such case is Lt necessary for him to have
   Fn his.possession while hauling such liquor 3
   written statement required ~by Section 27 (al,
   Article I, of the TelZasLiquor Control Act? In
   this connection we call your attention to Sectidn
   4 (,b),Article I',TexaP Liquor Control Act, which
   prohibits the transportation of liquor in a dry
   Wea,,and to Section 23 (a), which provides that
   a person who purchases alcoholic beverages for
   hLs own consumption may transport same from a place
   where the sale thereof is legal to a place where
   the possession thereof is legal; ardalso Section
   27 (a), Article I, which provides that It shall be
   unlawful for any person to transpprt upon any pub-
   lic hlghway, street or alley, any'lfqu6r unless
   the person in charge of such shipment shall have
   l&his possession, present and available, a written
   statement signed by the shipper giving certain ln-
   formation."
Hon. Bert Ford, page 2          o-1882



         Paragraph (b) of Article 666-4 of the Penal Code
reads:
        "(b). It shall be unlawful for any person
    In any dry area to manufacture, distill, brew,
    sell, possess for the purpose of sale, import
    Into this State, export from the State, trans-
    port, 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."
        Thus it is clearly seen that it Is not unlawful to
possess llluor In a dry area but t$e offense Isthe possession
of~llquor for the purpose of sale . An information charging
that defendant possessed whiskey does not charge an offense
when not charging that the whiskey was possessed for the pur-
pose of sale. Alexander vs. State, 113 SW 2nd 545.
        It then becomes necessary to determine   whether or not
the word "transport", used in the above quoted   article would
prevent the purchaser of the liquor, under the   facts stated by
you, from transporting the same to his home in   a dry county.
         Paragraph (1) of Article 666-23a,   of the Penal Code
reads:
        "(1). It Is provided tha,tany person who pur-
    chases 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."
         We conclude that such provision, next hereinabove
quoted, is a defensive statute designed to afford one accused
of transporting liquor in violation of paragraph (b) of
Article 666-4, supra, a complete defense against the charge so
made. In other words, upon the accused making proof that he
was transporting alcoholic beverages for his own consumption
from a point of purchase to a given destination, his innocence
would be established.
        It is to be ~noted, however, that the defense afforded
by the hereinabove quoted section is followed by paragraph
(2) of the same article which reads:
        "(2) . Possession of'more than one'quart of
    liquor in a dry area shall be prima facie evidence
    that It is possessed for the purposesof sale."
Bon. Bert Ford, page 3         o-1882



        We must necessarily conclude that the mere possession
and~transportation of liquor, under the facts presented by
you, does not render the one in possession thereof guilty of
an offense. As pointed out, the possession of more than one
quart by any person within a dry area is prima facie evidence
of Its possession for the purpose of sale. Natiurally,proof
by the accused of its possession for his own use and not for
the purpose of sale would be a matter of defense.
        We next turn our attentlon to the proposition of
whether or not it is necessary for one transporting liquor,
under the provisions of paragraph (l), Article 666~23a, supra,
to,have a written statement required by paragraph (a), Article
666-27 of the Penal Code. Such section reads:

        "(a). It shall be unlawful for any person
    to transportinto this State or upon any public
    highway, street, or alley in this State any
    liquor unless the person accompanying or in charge
    of such shipment shall have present and available
    for exhibition and inspection, a written statement
    furnished and signed by the shipper, showing the
    name and address of the consignor and the consignee,
    the origin and destination of such shipment, and
    such other information as may be required by rule
    and regulation of the Board. It shall be the duty
    of the person in charge of such shipment while
    the same is being transported, to exhibit such
    written statement to the Board or any of its
    authorized representatives or to any peace of-
    ficer making demand therefor, and it shall be
    unlawful for any person to fail or refuse to
    exhibit the same upon such demand. Such written
    statement shall be accepted by such representa-
    tive or officer as prima facie evidencz of the
    lawful right to transport such liquor.
        We th.inkthis section has reference to shipment of
liquor, as that term is ord~inarilyused and understood, as
where a person orders liquor and it Is delivered to him either
by common carrier or agent for the consignee or consignor.
It is our opinion that the same is not applicable to the
situation presented by your statement of facts.
Hon. Bert Ford, page 4        0 -1882



                              Yours very truly
                           ATTORNEYGENERAL     OF TEXAS


                              ,By s/Lloyd Armstrong
                                    Lloyd Armstrong
                                          Assistant
LA:AW:wc

s/Gerald C. Mann
Approved Opinion Committee By s/BWB Chairman
