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                                  &ate of lEexa$
DAN MORALES                             January 341992
 ATTORNEY
      GENERAL

     Honorable Doyle Willis                         Opinion No.   DM-84
     chairman
     General Investigating Committee                Re: Whether the owner of a restaurant
     Texas House of Representatives                 in a dry area violates section 101.31 of
     P. 0. Box 2910                                 the Alcoholic Beverage Code by giving
     Austin, Texas 78768-2910                       away wine to patrons or using alcoholic
                                                    beverages for cooking (RQ-38)

     Dear Representative Willisz

             You ask whether a restauranteur may possess and use alcoholic beverages in
     his restaurant in a “dry”area of the state. The Texas Constitution provides that the
     legislature shall enact laws authorizing the voters of any county, justice’s precinct, or
     incorporated town or city to determine by majority vote whether the sale of
     intoxicating liquors for beverage purposes shall be prohibited or legalized. Tex.
     Const. art. XVI, 8 20(b); see Alto. Bev. Code ch. 251 (local option elections). The
     laws shall permit voting on the sale of intoxicating liquors of various types and
     alcoholic content. See Alto. Bev. Code 9 251.14. An area is a “dry area” as to an
     alcoholic beverage of a particular type and alcoholic content if the sale of that
     beverage is unlawful there. Id 3 251.71(a).

             You ask the following two questions about the owner of a restaurant in a dly
     area:

                    1. Whether a restaurant owner or employee who gives
               away, at the sole discretion of the owner, a glass of wine to
               patrons during their meals eaten in the restaurant, would be in
               violation of section 10131. V.T.C.A., Alcoholic Beverage Code,
               where the premises are located in a dry area.

                   2. Whether a restaurant owner who possesses alcoholic
               beverages for the purpose of use in cooking or preparation of
               meals sold to patrons would be in violation of section 101.31,
               V.T.C.A., Alcoholic Beverage Code, where the premises are
               located in a dry area.


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        In addressing your questions, we assume that the area is dry as to all
alcoholic beverages, including wine. In response to your first question, we conclude
that a restauranteur or his employee may not give away a glass of wine to patrons
during meals in a dry area without violating section 101.31 of the code.

       Section 101.31 of the Alcoholic Beverage Code sets forth the following:

                 Except as otherwise provided in this code, no person in a
            dry area may manufacture, distill, brew, sell, import into the
            state, export from the state, transport, distribute, warehouse,
            store, solicit or take orders for, or possess with intent to sell an
            alcoholic beverage.

         Relying in part on Savage v. Stare, 88 S.W. 351 (Tex. Crim. App. 1905), this
office concluded in Attorney General Opinion C-421 (1965) that the owner of a
motor hotel and restaurant in a dry area who gave away beer or mixed drinks with
meals would be in violation of the prohibition on sales of alcoholic beverages in dry
areas. The issue in Suvuge was whether the “gift” of alcoholic beverages was, in fact,
a gift or was actually a sale for purposes of the Sunday “closing law.” The court
initially held that the state failed to prove a sale. The dissent to this opinion stated
as follows:

            In contemplation of law, the moment defendant offers on his bill
            of fare to give beer with each lunch purchased, this forms part
            and parcel of the consideration for the purchase of the lunch,
            and, being a part of the same, constitutes, in law, a sale of the
            beer. To say otherwise would be to hold that a party could make
            a direct sale, and call it a gift, and yet could not be prosecuted at
            all for the sale, simply because he called the sale a gift.

Savage, supru, at 353. On rehearing, the majority concluded that the restauranteur
had violated the law against selling intoxicating liquor on Sunday. Id. at 355.
Attorney General Opinion C-421 analyzed the reasoning and conclusion of Savage
and determined that it stood for the proposition that the furnishing of alcoholic
beverages with meals constitutes a sale of the beverage as a matter of law. Attorney
General Opinion C-421 at 3. This conclusion is well expressed by the language of




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the dissent quoted above and by the following language, which Attorney                                     General
Opinion C-421 also relied on:

                    The purchase of a &      includes all the articles that eo TV
              mke up the meal. It is wholly immaterial that no specific price
              is attached to those articles separately.     Lf the meal included
              &o&atine      liauors. the ourchase of the meal would be a
              purchase of the liauors.     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 oresent a
              glass of liquor to evervbodv who should ourchase some small
              article of him. it would be considered a mere evasion of the law
              m’ohibitine the unlicensed sale of intoxicating liquors . . . .

Attorney General Opinion C-421 at 4 (quoting Commonweulth v. Albert W
Worcester, 126 Mass. 256 (1879)) (emphasis in opinion); see also Annot., 89 A.L.R.
3d 551, $$ 15,21(c) (1979) (sale of liquor).

        Attorney General Opinion C-421 is dispositive of your first question.      A
restauranteur whose premises are in a dry area would violate section 101.31 of the
Alcoholic Beverage Code by giving wine to patrons during meals at his restaurant.’

        You next ask whether a restauranteur would violate section 101.31 of the
Alcoholic Beverage Code by possessing alcoholic beverages in a dry area for the
purpose of use in cooking or preparation of meals sold to patrons. Section 1.04(l)
defines alcoholic beverage as follows:

              In this code:

                   (1) “Alcoholic beverage” means alcohol, or any beverage
              containing more than one-half of one percent of alcohol by



          ‘We note that there    is now an expressstatutory exceptionto        the general prohibition       found in
section   101.31    that authorizes   the furnishing   of alcoholic    beverages    in dry areas.     In   1979, the
legislature   amended    the private club provisions of the code, found in chapter 32, to allow the “pool
system” of alcoholic beverage storage to be “used in any area” in private clubs. Acts 1979,66th              Leg., ch.
777, § 8, at 1968; see now Alto.      Bev. Code 3:32.06(a).       A private club registration    permit    authorizes
alcoholic beverages to be stored and served on private club premises.              Alto.   Bev. Code § 32.01.    The
use of the pool system of storage allows a private club to be located in a dry area.



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            volume, which is capable of use for beverage purposes, either
            alone or when diluted.

         Section 101.31 provides that no person in a dry area may “manufacture,
distill, brew, sell, import into the state, export from the state, transport, distribute,
warehouse, store, solicit or take orders for, or possess with intent to sell an alcoholic
beverage.” Possession of more than one quart of liquor in a dry area creates a
rebuttable presumption of possession with intent to sell. Alto. Bev. Code $ 101.32;
Walden v. State, 272 S.W. 139 (Tex. Crim. App. 1925). “Liquor” includes wine, as
well as any other alcoholic beverage containing alcohol in excess of four percent by
weight. Alto. Bev. Code g l&I(5).

         If the restauranteur possesses more than one quart of an alcoholic beverage,
he will be subject to the presumption that he possesses it “with intent to sell”
pursuant to section 101.32.         Whether he would be able to overcome this
presumption by presenting evidence about using it in preparing meals involves the
resolution of fact questions that cannot be addressed in the opinion process. For
example, it has been suggested that although some alcohol may be used in the
preparation of certain dishes, the alcohol may be completely evaporated by the time
the food is ready for consumption. Accordingly, we decline to answer your second
question.

                                     SUMMARY

                 The owner or employee of a restaurant in a dry area would
            violate section 101.31 of the Alcoholic Beverage Code if he
            gave a glass of wine to patrons during meals purchased at the
            restaurant.   Whether the owner or employee of a restaurant
            violates the code by adding alcohol to food is a question of fact
            that cannot be resolved in the opinion process.         Although
            possession of a quart of alcohol creates a presumption that an
            individual possesses with intent to sell, the presumption is
            rebuttable, depending on the facts of any given circumstances.

                                               Very truly yours,




                                               DAN      MORALES
                                               Attorney General of Texas


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WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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